concurred.'
The opinion of the Court was' that the judgment was “ erroneous, in this, that the District Court refused to “ instruct the Jury, impanelled for the finding of such.’ “ facts as were material to' the cause', and were not- agreed *381“ by the parties, that they had a right to presume and find “ that a patent had formerly issued for the land in question, “ if such fact was, in their opinion, a rational inference xi from the facts proved to them upon the trial, and found’ “ in the verdict rendered by the Jury upon that occasion.”
Judgment reversed, and the cause “ remanded to the a said District Co.urt, in order that such further facts a material to the cause, and not agreed by the parties, as are not already found by the Jury formerly impanelled, “ may be found by a Jury to be impanelled for that pur- “ pose; on Which occasion the said District Court ought to “ instruct the Jury that they have a right to presume and ic find that a patent hath formerly issued for the land in u question, if such fact shall, in their opinion, be a rational “ inference from the evidence which shall then be offered. “ to them.”