The equitable owners of a tract of land on the River Ohio (the
legal title to which was granted to John Cleves Symmes, from whom
they had purchased the land before the emanation of the patent from
the United States) proceeded in January, 1789, to lay out on part
of the said tract a town, now the City of Cincinnati. A plan was
made and approved of by all the equitable proprietors, and
according to which the ground lying between Front Street and the
river was set apart as a common for the use and benefit of the town
forever, reserving only the right of a ferry, and no lots were laid
out on the land thus dedicated as a common. Afterwards the legal
title to the lands became vested in the plaintiff in this
ejectment, who, under the same, sought to recover the premises so
dedicated to public uses.
Held that the right of the
public to use the common in Cincinnati must rest on the same
principles as the right to use the streets, and that the dedication
made when the town was laid out gave a valid and indefeasible title
to the City of Cincinnati.
Dedications of land for public purposes have frequently come
under the consideration of this Court, and the objections which
have been raised against their validity have been the want of a
grantee competent to take the title, applying to them the same rule
which prevails in private grants that there must be a grantee as
well as a grantor. But that is not the light in which this Court
has considered such dedications for public use. The law applies to
them rules adapted to the nature and circumstances of the case, and
to carry into execution the intention and object of the granter and
secure to the public the benefit held out and expected to be
derived from and enjoyed by the dedication.
There is no particular form or ceremony necessary in the
dedication of land to public use. All that is required is the
assent of the owner of the land, and the fact of its being used for
the public purposes intended by the appropriation.
Although the dedications of land for charitable and religious
purposes, which it is admitted are valid without any grantee to
whom the fee could be conveyed, are the cases which most frequently
occur, and are to be found in the books; it is not perceived how
any well grounded distinction can be made between such cases and
the case of a dedication of land for the use of the City of
Cincinnati. The same necessity exists in the one case as in the
other, for the purpose of effecting the object intended. The
principle, if well founded in the law, must have a general
application to all appropriations and dedications for public uses
when there is no grantee in case to take the fee. But this forms an
exception to the rule applicable to private grants, and grows out
of the necessity of the case.
In this class of cases, there may be instances where, contrary
to the general rule, a fee may remain in abeyance until there is a
grantee capable of taking, when the object and purpose of the
appropriation look to a future grantee in which the fee is to vest.
But the validity of the dedication does not depend on this; it will
preclude the party making the appropriation from reasserting any
right
Page 31 U. S. 432
over the land, at all events, so long as it remains in public
use, although there may never arise any grantee capable of taking
the fee.
The doctrine of the law relative to the appropriation of land
for public highways was applied to a public spring of water for
public use in the case of
McConnell v. Trustees of the
Town of Lexington, 12 Wheat. 582.
All public dedications must be considered with reference to the
use for which they are made, and streets in a town or city may
require a more enlarged use of the land, in order to carry into
effect the purposes intended, than may be necessary in an
appropriation for a highway in the country. But the principle, so
far as respects the right of the original owner to disturb the use,
must rest on the same ground in both cases, and applies equally
to the dedication of the common as to the streets. This was for
the public use and the convenience and accommodation of the
inhabitants of Cincinnati, and doubtless greatly enhanced the value
of the private property adjoining this common, and thereby
compensated the owners for the land thus thrown out as public
ground.
And after being thus set apart for public use, and enjoyed as
such, and private and individual rights acquired with reference to
it, the law considers it in the nature of an estoppel
in
pais, which precludes the original owner from revoking such
dedication. It is a violation of good faith to the public, and to
those who have acquired private property with a view to the
enjoyment of the use thus publicly granted.
If the mere naked fee is in the plaintiff in ejectment, it by no
means follows that he is entitled to recover possession of the land
in his action. The action of ejectment is a possessory action, and
the plaintiff, to entitle himself to recover, must have the right
of possession, and whatever takes away this right of possession
will deprive him of the remedy by ejectment.
The case came before the Court on a bill of exceptions, taken by
the plaintiffs in error, the defendants in the circuit court, to
the instructions given by the court to the jury on the request of
the counsel for the plaintiffs in that court, and to the refusal of
the court to give certain instructions as prayed for by the
defendants below.
In the opinion of the court no decision is given on those
exceptions save only on that which presented the question of the
dedication of the land in controversy for the use of the City of
Cincinnati, which, and the facts of the case connected therewith,
are fully stated in the opinion of the Court. The arguments of the
counsel in the case on the matters of law presented by the
exceptions are therefore necessarily omitted.
Page 31 U. S. 433
MR. JUSTICE THOMPSON delivered the opinion of the Court.
The ejectment in this case was brought by Edward White, who is
also the defendant in error, to recover possession of a small lot
of ground in the City of Cincinnati lying in that part of the city
usually denominated the Common. To a right understanding of the
question upon which the opinion of the Court rests, it will be
sufficient to state generally that on 15 October in the year 1788,
John Cleves Symmes entered into a contract with the then Board of
Treasury, under the direction of Congress, for the purchase of a
large tract of land, then a wilderness, including that where the
City of Cincinnati now stands. Some negotiations relative to the
payments for the land delayed the consummation of the contract for
several years. But on 30 September, 1794, a patent was issued
conveying to Symmes and his associates the land contracted for, and
as Symmes was the only person named in the patent, the fee was of
course vested in him.
Before the issuing of the patent, however, and, as the witnesses
say, in the year 1788, Mathias Denman purchased of Symmes a part of
the tract included in the patent and embracing the land whereon
Cincinnati now stands. That in the same year, Denman sold one-third
of his purchase to Israel Ludlow and one-third to Robert Patterson.
These three persons, Denman, Ludlow, and Patterson, being the
equitable owners of the land (no legal title having been granted),
proceeded in January, 1789, to lay out the town. A plan was made
and approved of by all the proprietors, and according to which the
ground lying between Front Street and the river, and so located as
to include the premises in question, was set apart as a common for
the use and benefit of the town forever, reserving only the right
of a ferry, and no lots were laid out on the land thus dedicated as
a common.
The lessor of the plaintiff made title to the premises in
question under Mathias Denman, and produced in evidence a copy,
duly authenticated, of the location of the fraction 17 from the
books of John C. Symmes to Mathias Denman, as follows:
"1791, April 4, Captain Israel Ludlow, in behalf of Mr. Mathias
Denman of New Jersey, presents for entry and location a warrant for
one fraction of a section, or one hundred and seventy acres and
eight-tenths of an acre of land, by virtue of which he locates
the
Page 31 U. S. 434
seventeenth fractional section in the fourth fractional
township, east of the Great Miami River in the first fractional
range of townships on the Ohio River; number of the warrant
192."
In March, 1795, Denman conveyed his interest, which was only an
equitable interest, in the lands so located to Joel Williams, and
on 14 February, 1800, John Cleves Symmes conveyed to Joel Williams
in fee certain lands described in the deed which included the
premises in question, and on 16 April, 1800, Joel Williams conveyed
to John Daily the lot now in question. And the lessor of the
plaintiff, by sundry mesne conveyances, deduces a title to the
premises to himself.
In the course of the trial, several exceptions were taken to the
ruling of the court with respect to the evidence offered on the
part of the plaintiff in making out his claim of title. But in the
view which the Court has taken of what may be considered the
substantial merits of the case, it becomes unnecessary to notice
those exceptions.
The merits of the case will properly arise upon one of the
instructions given by the court, as asked by the plaintiff, and in
refusing to give one of the instructions asked on the part of the
defendant. At the request of the plaintiff, the court instructed
the jury
"That to enable the city to hold this ground and defend itself
in this action by possession, it must show an unequivocal
uninterrupted possession for at least twenty years."
On the part of the defendants, the court was asked to instruct
the jury
"That it was competent for the original proprietors of the Town
of Cincinnati to reserve and dedicate any part of said town to
public uses without granting the same by writing or deed to any
particular person, by which reservation and dedication the whole
estate of the said proprietors in said land thus reserved and
dedicated became the property of and was vested in the public for
the purposes intended by the said proprietors, and that by such
dedication and reservation the said original proprietors and all
persons claiming under them are estopped from asserting any claim
or right to the said land thus reserved and dedicated."
The court refused to give the instruction as asked, but gave the
following instruction:
"That it was competent for the original proprietors of the
Page 31 U. S. 435
Town of Cincinnati to reserve and dedicate any part of said town
to public uses without granting the same by writing or deed to any
particular person, by which reservation and dedication the right of
use to such part is vested in the public for the purposes
designated, but that such reservation and dedication do not invest
the public with the fee."
The ruling of the court to be collected from these instructions
was that although there might be a parol reservation and dedication
to the public of the use of lands, yet such reservation and
dedication did not invest the public with the fee, and that a
possession and enjoyment of the use for less than twenty years was
not a defense in this action.
The decision and direction of the circuit court upon those
points come up on a writ of error to this Court.
It is proper in the first place to observe that although the
land which is in dispute, and a part of which is the lot now in
question, has been spoken of by the witnesses as having been set
apart by the proprietors as a common, we are not to understand the
term as used by them in its strict legal sense, as being a right or
profit which one man may have in the lands of another, but in its
popular sense as a piece of ground left open for common and public
use for the convenience and accommodation of the inhabitants of the
town.
Dedications of land for public purposes have frequently come
under the consideration of this Court, and the objections which
have generally been raised against their validity have been the
want of a grantee competent to take the title, applying to them the
rule which prevails in private grants that there must be a grantee
as well as a grantor. But that is not the light in which this Court
has considered such dedications for public use. The law applies to
them rules adapted to the nature and circumstances of the case, and
to carry into execution the intention and object of the grantor,
and secure to the public the benefit held out and expected to be
derived from and enjoyed by the dedication.
It was admitted at the bar that dedications of land for
charitable and religious purposes and for public highways were
valid without any grantee to whom the fee could be conveyed.
Although such are the cases which most frequently occur and are to
be found in the books, it is not perceived how any well
Page 31 U. S. 436
grounded distinction can be made between such cases and the
present. The same necessity exists in the one case as in the other,
for the purpose of effecting the object intended. The principle, if
well founded in the law, must have a general application to all
appropriations and dedications for public use, where there is no
grantee
in esse to take the fee. But this forms an
exception to the rule applicable to private grants, and grows out
of the necessity of the case. In this class of cases there may be
instances, contrary to the general rule, where the fee may remain
in abeyance until there is a grantee capable of taking; where the
object and purpose of the appropriation look to a future grantee in
whom the fee is to vest. But the validity of the dedication does
not depend on this; it will preclude the party making the
appropriation from reasserting any right over the land -- at all
events so long as it remains in public use, although there may
never arise any grantee capable of taking the fee.
The recent case of
Beatty v.
Kurts, 2 Pet. 256, in this Court is somewhat
analogous to the present. There, a lot of ground had been marked
out upon the original plan of an addition to Georgetown "for the
Lutheran Church," and had been used as a place of burial from the
time of the dedication. There was not, however, at the time of the
appropriation or at any time afterwards any incorporated Lutheran
church capable of taking the donation.
The case turned upon the question whether the title to the lot
ever passed from Charles Beatty, so far as to amount to a perpetual
appropriation of it to the use of the Lutheran church. That was a
parol dedication only, and designated on the plan of the town. The
principal objection relied upon was that there was no grantee
capable of taking the grant. But the Court sustained the donation
on the ground that it was a dedication of the lot to public and
pious uses; adopting the principle that had been laid down in the
case of
Town of Pawlet v.
Clark, 9 Cranch 292, that appropriations of this
description were exceptions to the general rule requiring a
grantee. That it was like a dedication of a highway to the public.
This last remark shows that the case did not turn upon the bill of
rights of Maryland or the statute of Elizabeth relating to
charitable uses, but rested upon more general principles,
Page 31 U. S. 437
as is evident from what fell from the Court in the case of
Town of Pawlet v. Clark, which was a dedication to
religious uses; yet the Court said this was not a novel doctrine in
the common law. In the familiar case where a man lays out a street
or public highway over his land, there is, strictly speaking, no
grantee of the easement, but it takes effect by way of grant or
dedication to public uses. And in support of the principle, the
case of
Lade v. Shepherd, 2 Stra. 1004, was referred to,
which was an action of trespass, and the place where the supposed
trespass was committed, was formerly the property of the plaintiff,
who had laid out a street upon it, which had continued thereafter
to be used as a public highway, and it was insisted on the part of
the defendant that by the plaintiff's making a street, it was a
dedication of it to the public, and that although he, the
defendant, might be liable for a nuisance, the plaintiff could not
sue him for a trespass. But the Court said it is certainly a
dedication to the public, so far as the public has occasion for it,
which is only for a right of passage, but it never was understood
to be a transfer of his absolute property in the soil.
The doctrine necessarily growing out of that case, has a strong
bearing upon the one now before the court, in two points of view.
It shows in the first place that no deed or writing was necessary
to constitute a valid dedication of the easement. All that was
done, from anything that appears in the case, was barely laying out
the street by the owner, across his land. And in the second place,
that it is not necessary that the fee of the land should pass in
order to secure the easement to the public. And this must
necessarily be so from the nature of the case in the dedication of
all public highways. There is no grantee to take immediately, nor
is anyone contemplated by the party to take the fee at any future
day. No grant or conveyance can be necessary to pass the fee out of
the owner of the land, and let it remain in abeyance until a
grantee shall come
in esse, and indeed the case referred
to in
Strange considers the fee as remaining in the
original owner; otherwise he could sustain no action for a private
injury to the soil, he having transferred to the public the actual
possession.
If this is the doctrine of the law applicable to highways, it
must apply with equal force, and in all its parts, to all
Page 31 U. S. 438
dedications of land to public uses, and it was so applied by
this Court to the reservation of a public spring of water for
public use in the case of
McConnell v. Trustees of the
Town of Lexington, 12 Wheat. 582. The Court said
the reasonableness of reserving a public spring for public use, the
concurrent opinion of all the settlers that it was so reserved, the
universal admission of all that it was never understood that the
spring lot was drawn by any person, and the early appropriation of
it to public purposes were decisive against the claim.
The right of the public to the use of the common in Cincinnati,
must rest on the same principles as the right to the use of the
streets, and no one will contend that the original owners, after
having laid out streets and sold building lots thereon and
improvements made, could claim the easement thus dedicated to the
public.
All public dedications must be considered with reference to the
use for which they are made, and streets in a town or city may
require a more enlarged right over the use of the land in order to
carry into effect the purposes intended than may be necessary in an
appropriation for a highway in the country, but the principle, so
far as respects the right of the original owner to disturb the use,
must rest on the same ground in both cases, and applies equally to
the dedication of the common as to the streets. It was for the
public use, and the convenience and accommodation of the
inhabitants of Cincinnati, and doubtless greatly enhanced the value
of the private property adjoining this common, and thereby
compensated the owners for the land thus thrown out as public
grounds.
And after being thus set apart for public use and enjoyed as
such, and private and individual rights acquired with reference to
it, the law considers it in the nature of an estoppel
in
pais, which precludes the original owner from revoking such
dedication. It is a violation of good faith to the public, and to
those who have acquired private property with a view to the
enjoyment of the use thus publicly granted.
The right of the public in such cases does not depend upon a
twenty years' possession. Such a doctrine, applied to public
highways and the streets of the numerous villages and cities that
are so rapidly springing up in every part of our country, would be
destructive of public convenience and private right.
Page 31 U. S. 439
The case of
Jarvis v. Dean, 3 Bingham 447, shows that
rights of this description do not rest upon length of possession.
The plaintiff's right to recover in that case turned upon the
question whether a certain street in the Parish of Islington had
been dedicated to the public as a common public highway. Chief
Justice Best, upon the trial, told the jury that if they thought
the street had been used for years as a public thoroughfare, with
the assent of the owner of the soil, they might presume a
dedication; and the jury found a verdict for the plaintiff, and the
court refused to grant a new trial, but sanctioned the direction
given to the jury and the verdict found thereupon, although this
street had been used as a public road only four or five years, the
court saying the jury was warranted in presuming it was used with
the full assent of the owner of the soil. The point therefore upon
which the establishment of the public street rested was whether it
had been used by the public as such, with the assent of the owner
of the soil, not whether such use had been for a length of time,
which would give the right by force of the possession, nor whether
a grant might be presumed, but whether it had been used with the
assent of the owner of the land, necessarily implying that the mere
naked fee of the land remained in the owner of the soil, but that
it became a public street, by his permission to have it used as
such. Such use, however, ought to be for such a length of time that
the public accommodation and private rights might be materially
affected by an interruption of the enjoyment.
In the present case, the fact of dedication to public use is not
left to inference from the circumstance that the land has been
enjoyed as a common for many years. But the actual appropriation
for that purpose is established by the most positive and conclusive
evidence. And indeed the testimony is such as would have warranted
the jury in presuming a grant, if that had been necessary. And the
fee might be considered in abeyance, until a competent grantee
appeared to receive it; which was as early as the year 1802, when
the city was incorporated. And the common, having then been taken
under the charge and direction of the trustees, would be amply
sufficient, to show an acceptance, if that was necessary, for
securing the protection of the public right.
Page 31 U. S. 440
But it has been argued that this appropriation was a nullity
because the proprietors, Denman, Ludlow, and Patterson, when they
laid out the Town of Cincinnati and appropriated this ground as a
common in the year 1789, had no title to the land, as the patent to
Symmes was not issued until the year 1794. It is undoubtedly true
that no legal title had passed from the United States to Symmes.
But the proprietors had purchased of Symmes all his equitable right
to their part of the tract which he had under his contract with the
government. This objection is more specious than solid, and does
not draw after it the conclusions alleged at the bar.
There is no particular form or ceremony necessary in the
dedication of land to public use. All that is required is the
assent of the owner of the land, and the fact of its being used for
the public purposes intended by the appropriation. This was the
doctrine in the case of
Jarvis v. Dean, already referred
to, with respect to a street, and the same rule must apply to all
public dedications, and from the mere use of the land, as public
land, thus appropriated, the assent of the owner may be presumed.
In the present case, there having been an actual dedication fully
proved, a continued assent will be presumed until a dissent is
shown, and this should be satisfactorily established by the party
claiming against the dedication. In the case of
Rex v.
Lloyd, 1 Camp. 262, Lord Ellenborough says, if the owner of
the soil throws open a passage, and neither marks by any visible
distinction that he means to preserve all his rights over it nor
excludes persons from passing through it by positive prohibition,
he shall be presumed to have dedicated it to the public.
At the time the plan of the Town of Cincinnati was laid out by
the proprietors and the common dedicated to public use, no legal
title had been granted. But as soon as Symmes became vested with
the legal title under the patent of 1794, the equitable right of
the proprietors attached upon the legal estate, and Symmes became
their trustee, having no interest in the land but the mere naked
fee. And the assent of the proprietors to the dedication
continuing, it has the same effect and operation as if it had
originally been made after the patent issued. It may be considered
a subsequent ratification and affirmance of the first
appropriation. And it is very satisfactorily proved
Page 31 U. S. 441
that Joel Williams, from whom the lessor of the plaintiff
deduces his title, well understood, when he purchased of Denman and
for some years before, that this ground had been dedicated as a
public common by the proprietors. The original plat, exhibiting
this ground as a common, was delivered to him at the time of the
purchase. And when he afterwards, in the year 1800, took a deed
from Symmes, he must, according to the evidence in the case, have
known, that he was a mere trustee, holding only the naked fee. And
from the notoriety of the fact that these grounds were laid open
and used as a common it is fairly to be presumed that all
subsequent purchasers had full knowledge of the fact.
But it is contended that the lessor of the plaintiff has shown
the legal title to the premises in question in himself, which is
enough to entitle him to recover at law, and that the defendants'
remedy, if any they have, is in a court of equity. And such was
substantially the opinion of the circuit court, in the fourth
instruction asked by the plaintiff, and given by the court,
viz.,
"that if the said proprietors did appropriate said ground,
having no title thereto, and afterwards acquired an equitable title
only, that equitable title could not enure so as to vest a legal
title in the city or citizens, and enable them to defend themselves
in an action of ejectment brought against them by a person holding
the legal title."
We do not accede to this doctrine. For should it be admitted,
that the mere naked fee was in the lessor of the plaintiff, it by
no means follows that he is entitled to recover possession of the
common in an action of ejectment.
This is a possessory action, and the plaintiff, to entitle
himself to recover, must have the right of possession, and whatever
takes away this right of possession, will deprive him of the remedy
by ejectment. Adams' Eject. 32. Starkie, part 4, 506-507.
This is the rule laid down by Lord Mansfield in
Atkins v.
Horde, 1 Burr. 119. An ejectment, says he, is a possessory
remedy, and only competent where the lessor of the plaintiff may
enter, and every plaintiff in ejectment must show a right of
possession as well as of property. And in the case of
Doe v.
Staple, 2 Durn. & East 684, it was held that although an
outstanding satisfied term may by presumed to be
Page 31 U. S. 442
surrendered, yet an unsatisfied term, raised for the purpose of
securing an annuity, cannot, during the life of the annuitant, and
may be set up as a bar to the heir at law, even though he claim
only subject to the charge. Thereby clearly showing the plaintiff
must have not only the legal title, but a clear present right to
the possession of the premises, or he cannot recover in an action
of ejectment. And in the case of
Doe v. Jackson, 2 Dowl.
& Ryl. 523, Bailey, Justice, says,
"An action of ejectment, which from first to last is a fictious
remedy, is founded on the principle that the tenant in possession
is a wrongdoer, and unless he is so at the time the action is
brought, the plaintiff cannot recover."
If then it is indispensable that the lessor of the plaintiff
should show a right of possession in himself, and that the
defendants are wrongdoers; it is difficult to perceive on what
grounds this action can be sustained.
The later authorities in England which have been referred to
leave it at least questionable whether the doctrine of Lord
Mansfield in the case of
Goodtitle v. Alker (1 Burr. 143),
"that ejectment will lie by the owner of the soil for land, which
is subject to a passage over it as the King's highway," would be
sustained at the present day at Westminster Hall. It was not even
at that day considered a settled point, for the counsel on the
argument (page 140) referred to a case, said to have been decided
by Lord Hardwicke, in which he held that no possession could be
delivered of the soil of a highway, and therefore no ejectment
would lie for it.
This doctrine of Lord Mansfield has crept into most of our
elementary treatises on the action of ejectment, and has
apparently, in some instances, been incidentally sanctioned by
judges. But we are not aware of its having been adopted in any
other case where it was the direct point in judgment. No such case
was referred to on the argument, and none has fallen under our
notice. There are, however, several cases in the Supreme Court of
Errors of Connecticut, where the contrary doctrine has been
asserted and sustained by reasons much more satisfactory than those
upon which the case in Burrow is made to rest.
Stiles v.
Curtis, 4 Day 328;
Peck v. Smith, 1 Con. 103.
But if we look at the action of ejectment on principle and
Page 31 U. S. 443
inquire what is its object, it cannot be sustained on any
rational ground. It is to recover possession of the land in
question, and the judgment, if carried into executor, must by
followed by delivery of possession to the lessor of the
plaintiff.
The purpose for which the action is brought is not to try the
mere abstract right to the soil, but to obtain actual possession --
the very thing to which the plaintiff can have no exclusive or
private right. This would be utterly inconsistent with the admitted
public right. That right consists in the uninterrupted enjoyment of
the possession. The two rights are therefore incompatible with each
other, and cannot stand together. The lessor of the plaintiff seeks
specific relief, and to be put into the actual possession of the
land. The very fruit of his action, therefore, if he avails himself
of it, will subject him to an indictment for a nuisance, the
private right of possession being in direct hostility with the
easement, or use to which the public are entitled, and as to the
plaintiff's taking possession subject to the easement, it is
utterly impracticable. It is well said by Mr. Justice Smith in the
case of
Stiles v. Curtis that the execution of a judgment
in such case involves as great an inconsistency as to issue a
habere facias possessionem of certain premises to A.,
subject to the possession of B. It is said cases may exist where
this action ought to be sustained for the public benefit, as where
erections are placed on the highway obstructing the public use. But
what benefit would result from this to the public? It would not
remove the nuisance. The effect of a recovery would only be to
substitute another offender against the public right, but would not
abate the nuisance. That must be done by another proceeding.
It is said in the case in
Burrow that an ejectment
could be maintained because trespass would lie. But this certainly
does not follow. The object and effect of the recoveries are
entirely different. The one is to obtain possession of the land,
which is inconsistent with the enjoyment of the public right, and
the other is to recover damages merely, and not to interfere with
the possession, which is in perfect harmony with the public right.
So also if the fee is supposed to remain in the original owner,
cases may arise where perhaps waste or a special action on the case
may be sustained for a private injury to such owner. But these are
actions perfectly consistent with
Page 31 U. S. 444
the public right. But a recovery in an action of ejectment, if
carried into execution, is directly repugnant to the public
right.
Upon the whole, the opinion of the Court is that the judgment
must be
Reversed and the cause sent back with directions to issue a
venire de novo.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Ohio and was argued by counsel, on consideration whereof it is
ordered and adjudged by this Court that the judgment of the said
circuit court in this cause be and the same is hereby reversed, and
that this cause be and the same is hereby remanded to the said
circuit court with directions to award a
venire facias de
novo.