An Act of Congress passed on the 15th of May, 1829, 3 Stat. 605,
authorizes persons who claim lots in the Village of Peoria, in
Illinois, to notify the register of the land office, who was
directed to report to the Secretary of the Treasury, to be laid by
him before Congress.
An Act of March 3, 1823, 3 Stat. 786, grants to each one of the
settlers who had settled on a lot prior to the 1st of January,
1813, the lot so settled on and improved, where the same shall not
exceed two acres, and where the same shall exceed two acres, every
such claimant shall be confirmed in a quantity not exceeding ten
acres,
provided the right of any other person derived from
the United States, or any other source whatever &c., shall not
be affected.
These two statutes were drawn into question in the case of
Bryan v.
Forsyth, 19 How. 334, where it was ruled that
"in the interval between 1823 and the survey a patent was taken
out, which was issued subject to all the rights of persons claiming
under the act of 1823. This patent was controlled by the subsequent
survey."
In the present case the patent is not controlled by the
subsequent survey, for the following reasons:
The old Village of Peoria was settled very early in the history
of the country, but abandoned before the years 1796, 1797, and the
new Village of Peoria built up at the distance of a mile and a
half.
The Act of March, 1823, applies only to the new town, and the
land in question is an out-lot or field of ten acres near the old
Village of Peoria.
Papin, the plaintiff below, claimed under a plat of the village
made in May, 1837, approved September, 1841, and a deed to himself
from the confirmee made in 1854.
Hall, the defendant below, claimed under a preemption
certificate of 1833, a patent from the United States in 1837 to
Seth and Josiah Fulton, and a deed to himself from the patentees in
1838.
Supposing that no out-lot was meant to be confirmed, the
inchoate right of the claimant under the act was subject to a
survey and designation before it could be matured into a title.
An instruction given by the court below to the jury,
viz., that the persons taking under the patent of March
18, 1837, and under the entry of July 11, 1833, must be considered
as taking their grant subject to the contingency of the better
title which might thereafter be perfected under the acts of 1820
and
Page 65 U. S. 133
1823; and when a party brought himself within those acts, his
title was the paramount title, notwithstanding the patent to the
Fultons was erroneous.
So also it was error in the court below to refuse to instruct
the jury that if they believed from the evidence that by the
plaintiff's recovering in this case the legal representatives of
Willette would be confirmed in more than ten acres of Peoria French
claims, they were to find for the defendant.
The true construction of the act is that a claimant was to have
one confirmation of "a lot so settled and improved," which had been
claimed and entered in the report of the register of the land
office at Edwardsville, in pursuance of the Act of May 15, 1820;
that no claimant, though he shall appear in the register's report
as having made several claims, could, after having had one of them
confirmed, transfer any right of property in the others to any
person whatever.
The dispute arose under the two acts of Congress passed in 1820
and 1823, confirming the claims of settlers in the Village of
Peoria, which are particularly mentioned in the opinion of the
court, and which were also examined in a case reported in
60 U. S. 19 How.
334. The instructions of the court below are also set forth in the
present opinion, which renders it unnecessary to state them in this
place.
It will be observed that the principal point upon which the
decision of this Court turned was that the lots in question were
outside of the Village of Peoria. Mr. Browning brought this point
before the court in the following manner:
The plaintiff in error defendant below asked the court to
instruct the jury
"That if they believed, from the evidence, that the original
French settlement or improvement, upon which the plaintiff's claim
in this suit is based, was not upon or within the northwest quarter
of section three, in township eight north, in range eight east, of
the fourth principal meridian, nor located upon that quarter
section by the United States surveyor until after that quarter
section was sold to
Page 65 U. S. 134
the Fultons by the United States, they, the jury, are to find
for the defendant."
Which instruction the court refused to give; but, on the
contrary, instructed the jury that the acts of Congress of 1820 and
1823, taken in connection with the report of the register of the
land office and the survey under the authority of the law, vested
in the party entitled under the acts of Congress an absolute right
of property in the lot so surveyed, and that the surveys, for the
purposes of this action, made the title of the claimant, under the
acts of Congress, complete, and that the persons taking under the
patent of March 18, 1837, as well as of the entry of July 11, 1833,
being the same grant, took their grant subject to the contingency
of the better title which might thereafter be perfected under the
acts of 1820 and 1822, and that when a party brought himself within
these acts, his title was the paramount title, notwithstanding the
patent to the Fultons.
Now, this instruction virtually admits that the land in
controversy never had been settled upon or improved by any of the
French or Canadian inhabitants of the Village of Peoria, and that
it was no part of the village, but quite and altogether outside of
and beyond its limits; for the defendant below had proven this
state of fact, or given evidence strongly tending to prove it, and
the court told the jury substantially that it was wholly immaterial
whether it had ever been settled upon and improved or not, or
whether it had ever been a part of the Village of Peoria or not,
for that the title of the plaintiff, by virtue of the laws of 1820
and 1823, and by virtue of the survey made, not upon the land of
the United States, but upon the land of the Fultons, was made
absolute, and paramount to the title of the Fultons,
notwithstanding the Fultons had the first grant from the
government. Or, to put it in another form, the instruction amounted
simply to this:
That on the 11th July, 1833, and the 18th March, 1837, when the
land was sold and patented to the Fultons, said land belonged,
absolutely and exclusively, to the United States, and that the
French settlers at Peoria had no right to or interest in it,
inasmuch as they had never had any settlement or improvement upon
it,
Page 65 U. S. 135
and it had never been any part of their village; that the
government owning it, had a right to do with it as it pleased, and
that in the exercise of that right it had sold and granted it to
the Fultons, thereby parting with all its right, title, and
interest in it, and all power and control over it; but that,
notwithstanding this, it could authorize a survey of it under a law
which had no reference whatever to this land, but to land upon
which the French had settled and improved; and by virtue of such
survey, take Fultons' land and appropriate it to the satisfaction
of a French claim, which, in reference to this land, had never had
an existence.
Now let it be conceded, as it is by the instruction of the
court, that there was never any French settlement or improvement on
this land, and that it was no part of the Village of Peoria --
then, I ask, by what right, or upon what principle, it can be taken
for the satisfaction of a claim in the Village of Peoria, after it
has ceased to be the property of the United States and has become
the property of a private citizen? I freely concede that whilst it
remained the property of the United States, they could authorize
any part, or the whole of it, to be given in satisfaction of French
claims, although the French settlements and improvements had never
been on or near it. But I do not comprehend how, after the
government had parted with its interest, had sold and conveyed to
the Fultons, it could authorize it to be taken for the satisfaction
of a French claim, or for any other purpose. Its power over it was
gone, and it could no more take this than it could take land
situated anywhere else, which it had previously sold and granted
away.
It is admitted that the surveyor might go outside of the
original French settlement and locate a claim upon any land
belonging to the government, for the government had a right to do
as it pleased with its own, and to authorize the location of a
claim where no settlement had previously been, and to confirm such
location after it was so made; but it is emphatically denied that
he could go outside of the original settlement and locate upon the
land of an individual, in which the government had no interest. If
he could go off the settlement,
Page 65 U. S. 136
outside of the village at all, where was he to stop? what limit
was there to his discretion or power? If he could go a half mile,
could he not go a mile? and if one, could he not go ten? Could he
not, in fact, go to the uttermost bounds of the land district? Mere
contiguity of Fultons' land to the old French Village of Peoria
gave the French claimants no more right to it than they had to land
situated ten miles distant, and which had been sold by the United
States after the passage of the laws of 1820 and 1823. Yet the
court told the jury that although no part of the original French
settlement or improvement, upon which the claim is based, was upon
the land sued for, nor located upon it by the United States
surveyor until after it had been sold to the Fultons by the United
States, still the Fultons took the land subject to the contingency
of its being thereafter taken from them to satisfy this French
claim. How did the Fultons take their land subject to such a
contingency, any more than other purchasers from the government?
There had originally been no French settlement upon it, and when
they bought, no claim had been surveyed or located upon it. When
the United States sold, its title was perfect and the land
unencumbered, and they sold and granted absolutely,
unconditionally, and without reservation of any kind or character.
It was no part of the contract between the Fultons and the United
States that they should take the land subject to the contingency of
its being afterwards retaken and disposed of to another. If they
took their land subject to such a contingency, did not every other
person in that land district who purchased land from the United
States, after the passage of the laws of 1820 and 1823, take it
subject to the same contingency? There was nothing in the character
or quality of the land purchased by the Fultons, nor in the nature
of their contract with the United States, to distinguish them from
other purchasers from the government. They took upon the same
terms, and they held by the same tenure, with all others who
purchased land to which the government had title; and I ask again
what was there in this transaction to distinguish it from any other
case of an absolute and unconditional sale of land by the
United
Page 65 U. S. 137
States, to which they had title, or to subject the Fultons to
the contingency of having it taken from them, after they had fairly
bought it, paid for it, and received a patent therefor? If they are
to be made an exception to all the general rules of law and
property, they ought, at least, to be informed why. It is not
because there had been a French settlement and improvement upon
their land, for this is disproved. Not because it had been
surveyed, and a French claim located thereon before they bought,
for no such thing had been done. Not because they made a
conditional purchase, for the United States conveyed to them
absolutely, and without condition or reservation. No reason
whatever is perceived for making an exception of this case.
If the instructions given by the court to the jury are right, it
must be because they contain a general principle of law, applicable
to all cases in the same land district with Peoria, for there is
nothing in this case to distinguish it from any other; and that
general principle, as declared by the court, is that all persons
who purchased from the United States in that land district, after
the passage of the laws of 1820 and 1823, took their land subject
to the contingency of having it retaken, to satisfy French claims.
This certainly cannot be so.
Page 65 U. S. 138
MR. JUSTICE WAYNE delivered the opinion of the Court.
This is a suit for the recovery of ten acres of land, which
is
Page 65 U. S. 139
admitted by the parties to be a part of the northwest quarter of
section three, in township eight north, of range eight east, of the
fourth principal meridian, in the district of lands subject to sale
formerly at Springfield, Illinois, and afterwards at Quincy.
Upon the trial below, the plaintiff gave in evidence 1st, the
Act of Congress of May 15, 1820, entitled, an act for the relief of
the inhabitants of the Village of Peoria, in the State of Illinois;
2d, the Act of the 3d March, 1823; 3d, the report of Edward Coles,
in the 3d vol. State Papers, page 421; 4th, the special and general
plat and field notes of the survey of the village, made May 11,
1837, approved September 1, 1841, and approved by the Surveyor of
Public Lands in Illinois and Missouri; 5th, the deed of lot 13 by
Bartholomew Fortier and his wife, Angelica, to plaintiff, September
23, 1854; 6th, depositions showing that Angelica was the only
representative of Francis Willette, and that, when she made her
claim before J. W. Coles, she was the wife of Louis Pilette, and
that she married Fortier in 1838.
The defendant below, here the plaintiff in error, introduced in
evidence a parent from the United States to Seth and Josiah Fulton,
dated March 18, 1837, a preemption certificate of the same, laid
July 11, 1833, and a conveyance by the Fultons to him of the land
covered by the patent dated the 11th July, 1838. The patentees,
Seth and Josiah Fulton, had lived upon the quarter section for
several years before their entry was made, and Hall, also, had
occupied the quarter section for some years before the Fultons sold
to him. Also, a patent from the United States to the
representatives of Francis Willette, for a lot which had been
claimed by them under the Act of the 3d March, 1823, and sundry
depositions, which it is not necessary for us to notice in this
opinion.
The defendant in error, Joseph L. Papin, claims the ten acres
sued for in virtue of his purchase from Bartholomew Fortier, and
Angelica, his wife, she being the sole representative of her
father, and had claimed the land under the act of Congress of the
15th May, 1820, 3 Stat. 605, and that of the 3d March, 1823, Stat.
at Large 786.
Page 65 U. S. 140
The first of these acts declares
"Every person, or the legal representatives of any person, who
claims a lot or lots in the Village of Peoria, in the State of
Illinois, shall, on or before the first day of October next,
deliver to the register of the land office for the District of
Edwardsville a notice in writing of his or her claim, and it shall
be the duty of the register to make to the Secretary of the
Treasury a report of all claims filed with him, with the substance
of the evidence in support thereof; and also his opinion, and such
remarks respecting the claim as he may think proper to make; which
report, with a list of the claims which, in the opinion of the
register, ought to be confirmed, shall be laid by the Secretary of
the Treasury before Congress for their determination."
Under this act claims were made by Louis Pilette in right of his
wife, Angelica, the daughter of Francis Willette, and they appear
in the register's report, dated the 10th November, 1820, entered as
numbers 11, 12, and 13. That report, however, was not finally acted
upon by Congress until the 3d March, 1823. The first section of
that act declares,
"There is hereby granted to each of the French and Canadian
inhabitants, and other settlers in the Village of Peoria, in the
State of Illinois, whose claims are contained in a report made by
the register of the land office at Edwardsville, in pursuance of
the Act of Congress approved May 15, 1820, and who had settled a
lot in the village aforesaid prior to the first day of January,
1813, and who have not heretofore received a confirmatory claim or
donation of any tract of land or village lot from the United
States,
the lot so settled upon and improved, where the
same shall not exceed two acres; and where the same shall exceed
two acres, every such claimant shall be confirmed in a quantity not
exceeding ten acres,
provided nothing in this act
contained shall be so construed as to affect the right, if any such
there be, of any other person or persons to the said lots, or any
part of them, derived from the United States, or any other source
whatever, or be construed as a pledge on the part of the United
States to make good any deficiency occasioned by any other
interfering claim or claims."
And it was made the duty of the surveyor of the public lands of
the United States
Page 65 U. S. 141
for that district to cause a survey to be made of the several
lots, and to designate in a plat thereof the lots confirmed and set
apart to each claimant, and forward the same to the Secretary of
the Treasury, who shall cause patents to be issued in favor of such
claimants, as in other cases.
The land sued for is described in the declaration as an out-lot
or field of ten acres, near the
old Village of Peoria, in
the State of Illinois,
confirmed to Louis Pilette in right
of his wife, Angelica, the daughter of the late Francis Willette,
by the act of Congress of the 3d March, 1823, entitled
"An act to confirm certain lots in the Village of Peoria, it
being claim No. 13 of the report made by the register of the land
office at Edwardsville, in pursuance of an Act of Congress of the
15th May, 1820."
The lot is claimed in the report of the register as an out-lot
or field, containing fifteen or twenty arpents of land, situated
three-fourths of a mile northeastwardly northwestwardly from the
Village of Peoria. There can be no uncertainty whether the old or
new village was meant, as the survey establishes it to have been
near the old; and in our consideration of the act of the 3d March,
1823, our conclusion is that that act can only embrace lots in the
new village, or others appertaining to it.
The old Village of Peoria was situated on the northwest shore of
Lake Peoria, about one mile and a half above the lower extremity or
outlet of the lake. The village had been established by Frenchmen
at an early date, previous to the recollection of anyone. About the
years 1778, 1779, the first house was built on what was then called
La Ville de Maillet,
afterwards the new Village of Peoria,
and afterwards known by the name of Fort Clark. It was situated
about one mile and a half below the old village, immediately at the
lower front or outlet of the lake. This situation was preferred on
account of the water being better and the place more healthy than
at the old village. In consequence, the inhabitants gradually
deserted the old village, and before the years 1796, 1797, had
entirely abandoned it, and removed to the new village.
The inhabitants were generally Indian traders, hunters, and
voyagers. They formed a like of connection between the
Page 65 U. S. 142
French residing on the waters of the great lakes and the
Mississippi River. From that happy facility of adapting themselves
to their situation and associates for which the French are so
remarkable, the inhabitants of Peoria generally lived in harmony
with their savage neighbors. But about the year 1781, an
apprehension of Indian hostilities induced them to abandon the new
village. They returned to it, however, after the peace of 1783,
between England and the United States and the powers which had
engaged in our revolutionary war, and continued there until the
autumn of the year 1812. Then they were forcibly removed from it
and their village destroyed by a Captain Craig, of the Illinois
militia, on the ground, it was said, that himself and his company
had been fired upon in the night by Indians, while at anchor in
their boats before the village, with whom Craig suspected the
villagers to be on too intimate and friendly terms. Craig and his
company were in the service of the United States. The inhabitants
of Peoria settled there without any grant or permission from any
government. Each person took such a portion of unoccupied land as
he wished to occupy and cultivate; but as soon as he abandoned it,
his right to the land ceased with his possession, and it reverted
to its natural state. It was then liable to be improved and
cultivated by any who thought proper to take possession. Sometimes
a settler sold out his improvements before abandoning. That and the
itinerant character of the inhabitants, account for the number of
persons who claimed the same lot. As was usual in French villages,
the lots in the village were small. They were large enough for
houses, out-houses, and gardens, and in some instances, those who
were able to do so cultivated what were known as out-lots or fields
near to, but outside or beyond, the village. Those out-fields were
of different sizes, depending upon the industry and means of
persons to till them. The village lots, as contradistinguished from
out-lots, contained generally the half of an arpent. Neither the
old nor new village had ever been surveyed or occupied upon any
fixed plan. Seventy claims were made under the act of the 15th May,
1820. They were returned on the report of the register
Page 65 U. S. 143
to the Secretary of the Treasury, on the 10th of November, 1826.
In a little less than three years, the act of 1823 was passed.
Coles' Report, 3 Am.State Papers, Land.
The narrative just given has an important bearing upon the
construction of the acts of 1820 and 1823. It serves to show the
locality of the Village of Peoria, for which those acts were
passed, the purposes to be accomplished, and the extent and
conditions upon which a lot may be confirmed to a claimant who had
settled and improved a lot in the village before the first
day of January, 1813, and who had not before received a
confirmation of claims, or donation of any tract of land or village
lot from the United States, when the lot settled upon and improved
did not exceed two acres, and when it did, to confirm to the
claimant ten acres, subject to the proviso in the act.
It was a gratuity to such settlers of a single lot in the
village. Such was the first section of the act of 3d March, 1823.
It gave to the claimant an incipient or inchoate right to a lot,
when, in conformity with the second section of the act, a survey
had been made of the several lots reported by the register,
with a designation or a plat thereof of the lot confirmed and
set apart to each claimant. When that had been done, the
claimant became a confirmee under the act, and his right to the
lot, as between himself and the United States, was complete. Such
was the view taken by this Court of the acts of 15th May, 1820, and
of the 3d March, 1823, in
Bryan and
Forsyth, 19 How. 336. Its language then was, when
the survey was made, and the plats returned and approved and
recorded by the Surveyor General of Illinois and Missouri, and
recognized as valid at the General Land Office, it bound the
parties to it, the confirmee and the United States.
The law was intended to grant the lot settled upon and improved,
and no other land described as an equivalent. But in this instance
no survey was made in conformity with the 2d section of the act
until the 11th April, 1837. It was not examined and approved by the
surveyor of the public lands in Illinois and Missouri until the
first September, 1840, seven years after Seth and Josiah Fulton had
made their entry upon the quarter section and three years after
they had received
Page 65 U. S. 144
their patent for it from the United States. The land was
unconditionally sold to them. Hall, the plaintiff in error, bought
from the Fultons in July, 1838. Under the decision of this Court,
already cited, no location of the out-lots could be made upon this
quarter section after the patent had been issued to the Fultons. It
follows, then, that there was no confirmation of the land sued for
to the representative of Francis Willette; and consequently that
the quitclaim conveyance by Angelica Fortier and her husband, of
the 23d September, 1854, to Papin, the defendant in error, gave to
her no title to the ten acres for which he has sued. We have shown
that the inchoate right of the claimant under the act -- supposing
that no out-lot was meant to be confirmed -- was subject to a
survey and designation before it could be matured into a title. The
requirement of a survey before a claimant could be considered as
having a legal title to land upon a concession, has frequently been
passed upon by this Court; and the case before us is within that of
Menard Heirs v.
Massey, in 8 How. 309.
It now remains for us to consider two of the instructions which
were asked by the defendant in the court below, which the court
refused to give to the jury.
They were:
If the jury believed from the evidence that the original French
settlement or improvement, upon which the plaintiff's claim in this
suit is based, was not upon or within the northwest quarter of
section 3, in township eight north, in range eight, east of the 4th
meridian,
nor located upon that quarter section by the United
States surveyor until after that was sold to the Fultons by the
United States, that the jury were to find for the
defendant.
The court did not give the first branch of the instructions
asked, and, in our opinion, rightly so, for there was no proof in
the case to show that the French settlement, which was the basis of
the suit, was not a part of it. Indeed no such instruction would
have been asked, for it was admitted by the parties that the tract
sued for was a part of the quarter section described in the patent
to the Fultons. But the court refused also the second branch of the
prayer, which in our opinion
Page 65 U. S. 145
should have been given, and gave the jury an instruction as
follows: he told the jury that the acts of Congress of 1820 and
1823, taken in connection with the report of the register of the
land office and the survey under the authority of law, vested in
the parties entitled, under the acts of Congress, with an absolute
right of property in the lot surveyed, and that Angelica, the
person named in the evidence, was the daughter and sole heir of her
father, Francis Willette, the settler; that she was within the
meaning of the law, and her claim being in the report, was
confirmed by the act of 1823.
And the jury was further instructed, that the survey of the
claimed lots, as reported by the register, was duly made and
approved, because the survey for the purposes of this action made
the title of the claimants under the acts of Congress complete, and
that the court was of the opinion that the persons taking under the
patent of March 18, 1837, and under the entry of July 11, 1833,
must be considered as taking their grant subject to the contingency
of the better title which might thereafter be perfected under the
acts of 1820 and 1823, and when a party brought himself within
those acts, his title was the paramount title,
notwithstanding
the patent to the Fultons.
The defendant, in our view, had asked for such an instruction as
he had a right to have under the authorities cited in a previous
part of this opinion. The instruction given to the jury was
erroneous.
The defendant had also asked in his second prayer, that the
court would instruct the jury, if they believed from the evidence
that by the plaintiff's recovering in this case the legal
representatives of Willette would be confirmed in more than ten
acres of Peoria French claims, that they were to find for the
defendant. The prayer is inartificially drawn; but when taken in
connection with the evidence in the case and the act of 1823, its
purport could not have been misunderstood. The object of the
defendant was to get an instruction from the court, upon the
evidence he had given, in conformity with the limitation in the
act, as to the quantity of land which could be confirmed to a
claimant under it. It declares when the lot shall not exceed two
acres, that it shall be confirmed, and
Page 65 U. S. 146
when the same shall exceed two acres, that every such claimant
shall be confirmed in a quantity not exceeding ten acres.
Pilette, the husband of Angelica, had filed in her behalf, in
the year 1820, before the register, claims for lots eleven, twelve,
and thirteen. The first, being the land numbered as number eleven,
contained about one-half of an arpent of land; number twelve the
same quantity, situated directly in the rear of eleven, and
separated from it by a street; number thirteen was a claim for an
out-lot or field, containing fifteen or twenty acres of land, and
situated about three-fourths of a mile northeastwardly
northwestwardly from the Village of Peoria; number eleven was also
claimed before the register by Felix Fontain, his claim being in
the report No. 41, but it turned out according to the survey that
both were for the same land and that they covered the southwest
part of Etienne Barnard's claim number 1, the northeast part of it
being also covered by another claim of Felix Fontain, numbered in
the survey as 42. For land so described, containing fifty-four
thousand eight hundred and ninety and fourteen-hundredths of a
square foot, designated as covered by the claims one, eleven,
forty-one, and forty-two, a patent was issued by the United States
to the representatives of Francis Willette on the 28th August,
1845. That patent was introduced in evidence by the defendant
below, the plaintiff in error. The purpose was to show that the
heirs of Willette having already had one confirmation of "a lot
settled and improved" under the Act of 3 March, 1823, that
they were not entitled to another, or to any confirmation of the
title to the land in litigation. If that were allowed, they would
get more than the ten acres, to which every claimant was limited by
the act. Our construction of the act is that a claimant was to have
one confirmation of "a lot so settled and improved," which had been
claimed and entered in the report of the register of the land
office at Edwardsville, in pursuance of the act of the 15th May,
1820; that no claimant, though he shall appear in the register's
report as having made several claims, could, after having had one
of them confirmed, transfer any right of property in the others to
any persons whatever.
Page 65 U. S. 147
Papin, the plaintiff below, took from the representatives of
Willette a quitclaim conveyance for the land for which he sues on
the 23d September, 1854 -- more than thirty years after the passage
of the act of the 3d March, 1823 -- more than twenty years after
the Fultons had made their entry upon the quarter section --
eighteen years after they received their patent for it from the
United States -- seventeen after Hall had the land in possession by
purchase from the Fultons and ten years after the patent of
confirmation to the representatives of Willette had been recorded
in the General Land Office. Under these circumstances, Papin took a
conveyance, which gave him no right to the land. When the plaintiff
in error, Hall, asked the court to instruct the jury that if they
believed from the evidence that by the plaintiff's recovery in this
case, the legal representatives of Francis Willette will have been
confirmed in more than ten acres of Peoria French claims, they were
to find for the defendant, the prayer ought to have been
apprehended by the court, according to its relation to the subject
matter in controversy, and such an instruction should have been
given accordingly to the jury. The refusal, then, was error.
For the reasons given, we shall direct the judgment of the court
below to be
Reversed; that a venire facias de novo shall be issued, and
that the court, in its further proceedings in the cause thereon,
conform to the rulings of this opinion.
