1. If an exception be seasonably taken and reserved, it may be
drawn out and sealed by the judge afterwards, and the time within
which it may be so drawn out and presented to the court must depend
on the rules and practice of the court and the judicial discretion
of the presiding justice.
2. The doctrine held by this Court in Bryan
19 How. 338, Mahan v.
24 How. 175, and Gregg v.
1 Black 150, concerning the effect of the
saving clause in patents for claims in Peoria reaffirmed.
MR. JUSTICE CLIFFORD.
These are writs of error to the Circuit Court of the United
States for the Northern District of Illinois. Both suits were
brought in the court below by the present defendant against the
respective plaintiffs in error. They were actions of ejectment, and
were respectively commenced on the 18th day of November, 1854, to
recover possession of certain but different parts of claim numbered
seven in the Village of Peoria, as confirmed to Thomas Forsyth
under the Act of Congress approved the 3d day of March, 1823,
Page 67 U. S. 572
"An act to confirm certain claims to lots in the Village of
Peoria in the State of Illinois." In each case, the defendants
pleaded the general issue, and for the sake of brevity it may be
well to say that the proceedings in the two suits are so nearly
alike that it will be unnecessary to refer to them separately
except in a few particulars, which will be specially noticed.
Parties went to trial in both cases at the July Term, 1856, and the
verdict in each, under the instructions of the court, was in favor
of the plaintiff, and the respective defendants excepted. Plaintiff
claimed title in each case under a patent to the legal
representatives of Thomas Forsyth dated the 16th day of December,
1845, and it was admitted at the trial that the plaintiff had that
title. On the other hand, the defendants in the respective suits
claimed the premises under a patent issued to John L. Bogardus
dated the 5th day of January, 1838, and granting to him the
southeast fractional quarter of section nine in township eight
north, of range eight east, in the district, of land subject to
sale, at Quincy in the State of Illinois, subject, however, to all
the rights of any and all persons claiming under the Act of
Congress of the 3d of March, 1823, entitled as already described.
Premises in controversy are included in that patent, and it was
admitted at the trial that the defendant in the respective suits
have had the actual possession of the land for which they are sued
by residences thereon for ten years next preceding the commencement
of the suits. Other admissions as to the possession of the premises
by the defendants were made at the same time, but it is not
necessary to refer to them in this investigation. Defendants in the
first case requested the court to instruct the jury that the title
under which they claimed was a title deducible of record from the
United States, and that the plaintiff, inasmuch as he admits that
they had been in possession more than seven years before the suit
was commenced, is barred by the Illinois statute of limitations;
but the court refused the prayer, and among other things instructed
the jury that the entry and patent under which defendants claimed
were subject to the rights of any and all persons claiming under
the Act of Congress of the 3d of March, 1823, so that no one
Page 67 U. S. 573
under the patent and by virtue thereof could claim under the
statute of limitations for seven years to have entered into the
possession of the lot under the claim or color of title. Prayers
for instruction substantially the same were also presented by the
defendants in the other case, and the record shows that they were
refused by the court and that the instructions given to the jury
were in all respects the same as those already recited.
1. It is insisted by the plaintiff in the first place that the
bill of exceptions does not show that the rulings of the court in
refusing to instruct the jury as requested and in respect to the
instructions given were properly excepted to at the time the
rulings were made. But sufficient appears to show that the prayers
for instruction were presented and the instructions given before
the jury retired from the bar of the court, and the statement at
the close of the bill of exceptions and immediately following the
instructions given is that the "defendants then and there excepted"
to the instructions, rulings, and decisions of the court. Evidently
the objection is substantially the same as that considered in the
case of Dredge v. Forsyth,
decided at the present term,
and for the reasons there given, it is overruled. United
States v. Brietling,
20 How. 252.
2. In the second place it is insisted by the plaintiff that the
possession of the defendants were not adverse to the title of the
plaintiff. He states the proposition, but furnishes no explanation
of the grounds on which it rests. Unless it is founded on the
saving clause in the patent of the defendants, there is nothing in
either case to give it the slightest support, and if it is founded
upon that clause, it is a sufficient answer to it to say that it
proceeds upon an erroneous view as to the legal effect of the
patent. Bryan v.
19 How. 338; Mahan v.
24 How. 175; Gregg v.
1 Black 150.
3. Suggestion is also made by the plaintiff that the title of
the defendants is not such as is required by law to secure to them
the benefit of the seven-years limitation act of the State of
Illinois, but the point has been so frequently ruled otherwise by
the state court and by this Court that we do not think it
Page 67 U. S. 574
to give it any further examination. Suffice it to say that in
our opinion, the instructions requested should have been given, and
those given should have been withheld. The respective judgments of
the Circuit court are accordingly
Reversed and the causes remanded with instructions in each
case to issue a new venire.