The action is ejectment, and the principal contest is whether the demanded premises passed to the State as swamp and overflowed land, under what is known as the Arkansas Act. At the trial the Court sent the jury to view the premises in controversy, as authorized by section 610 of the Code of Civil Procedure; and at the close of the testimony, on the request of the plaintiff, gave to the jury the following, among other instructions:

These instructions are erroneous in so far as they authorized the jury to take into consideration the result of their own examination of the land, in determining its character as swamp and overflowed, or otherwise. In authorizing *610 the Court to send the jury to view the premises in litigation, it was not the purpose of the statute to convert the jurors into silent witnesses, acting on their own inspection of the land, but only to enable them the more clearly to understand and apply the evidence. If the rule were otherwise, the jury might base its verdict wholly on its own inspection of the premises, regardless of an overwhelming weight of evidence to the contrary, and the losing party would be without a remedy by motion for a new trial. It would be impossible to determine how much weight was due to the inspection by the jury as contrasted with the opposing evidence, or (treating the inspection as in the nature of evidence) whether it was sufficient to raise a substantial conflict in the evidence. The cause would be determined not upon evidence given in Court, to. be discussed by counsel and considered by the Court in deciding a motion for a new trial, but upon the opinions of the jurors founded on a personal inspection, the value or the accuracy of which there would heno method of ascertaining. The statute could not have intended to produce such results as these, in authorizing the jury to view the premises.

Judgment reversed and cause remanded for a new trial. Remittitur forthwith.

Neither Mr. Chief Justice Wallace nor Mr. Justice McKinstry expressed an opinion.