A special verdict was found by the jury upon which judgment was
to be entered according as the opinion of the court might be upon
the construction of a certain deed, which deed was referred to and
made part of the special finding of the jury, but was not contained
in the record thereof. A deed formed a part of a bill of exceptions
taken to the opinion of the court upon a motion for new trial,
which bill of exceptions, with the said deed, was contained in the
record. The Court cannot judicially know that this is the same deed
which is referred to in the verdict of the jury or what are the
other evidences of title connected with it.
This case came up by writ of error to the Circuit Court of the
District of Ohio, and was argued by Mr. Baldwin for the plaintiff
in error and by Mr. Ewing, for the defendant in error. The cause
was remanded to the circuit court in consequence of a defect in the
record, and no opinion having been given by the court upon the
points presented and discussed by the counsel, they are
omitted.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This was an ejectment in the Court for the Seventh Circuit and
District of Ohio in which the jury found a verdict in the following
words:
"We the jury find the defendant guilty of the trespass and
ejectment in the declaration mentioned, and assess the plaintiff's
damages to six cents, which verdict is thus rendered, subject to
the opinion of the court on the question reserved by consent of
parties as to so much of the land in controversy as is contained in
the deed of the Sheriff of Ross County to the said defendant,
bearing date the ___ day of _____, 1802, and upon that part of the
land included in said deed. If the opinion of the court on the
question so reserved by consent shall be with the plaintiff, that
the said deed is not valid to pass the land therein described, then
we the jury finds the defendant guilty of the trespass and
ejectment in the declaration mentioned accordingly for that part
also, and if the opinion of the court thereon shall be in favor of
the defendant that said deed, with the other evidences exhibited as
part of said title, is valid to pass the fee to the defendant, then
the jury finds the defendant not guilty of the trespass and
ejectment in the said declaration mentioned as to that part of the
lands and premises in controversy."
This conditional verdict is for the plaintiff or defendant
Page 26 U. S. 627
according to the opinion of the court on the validity of a deed,
with the other evidences exhibited as part of said title. But this
deed and these other evidences of title are not exhibited to the
Court in such manner as to enable us to notice them. A deed does
indeed form a part of a bill of exception taken to the opinion of
the court on a motion subsequently made for a new trial. But the
court cannot know judicially that this is the same deed which is
referred to in the verdict, or what are the other evidences of
title which are connected with it. The verdict is too imperfect to
enable the court to render judgment on it.
The judgment of the circuit court is therefore reversed and
the cause remanded to the circuit court with directions to set
aside the verdict and to award a venire facias de novo.
This cause came on, &c., in consideration whereof it is the
opinion of this Court that the judgment of the said circuit court
in this cause is erroneous because the verdict is imperfect. It is
therefore considered and adjudged by this Court that the said
judgment be and the same is hereby reversed and annulled. And it is
further ordered that this cause be remanded to the said circuit
court with directions to award a
venire facias de
novo.