PARTY HAS RIGHT TO HAVE JURY POLLED, whether the verdict is brought in sealed or delivered ore tenus by the foreman. Denial of this right is

error.

JURORS MUST BE PRESENT PERSONALLY IN COURT when their verdict is opened, although they were directed to bring in a sealed verdict. If any of them then dissent, the verdict can not be received.

CONTROL OF JURY OVER A CASE ENDS when their verdict is received and they are discharged. They can not afterwards be recalled to alter or amend it.

RIGHT TO HAVE JURY POLLED IS WAIVED by omitting to exercise it when the verdict is opened and received in the presence of the jury.

PARTY CAN NOT COMPLAIN OF A MODIFICATION OF THE VERDICT OF A JURY, made by the court, but not to his prejudice.

EJECTMENT by the appellee Cook, suing by his next friend, A. G. Edwards. Verdict and judgment in his favor. The facts appear in the opinion.

W. H. Underwood, for the appellant.

Lyman Trumbull, for the appellee.

By Court, TREAT, J. This was an action of ejectment, commenced in the St. Clair circuit court, on the twenty-third of October, 1845, by John Cook against Rachel Rigg, for the recovery of the south-east fractional quarter of section twentythree, and the north fractional half of section twenty-six, in township one north, of range eight west, containing three hundred and thirty-nine acres and eighty-five hundredths of an acre. On the trial before the jury, the plaintiff read in evidence four several deeds of assignment of military claims from Jean B. Robillard, Michael Chartran, Charles Lefoevre, and Regis Martin to Jean F. Perry, bearing date in 1803; also a warranty deed, for the consideration of eight hundred dollars, from Perry and wife to Hosea Rigg, for the four militia claims, dated the second of May, 1808; also a mortgage from Rigg and wife to Perry, bearing date the third of May, 1808, in which the mortgaged premises are thus described: "All those four several tracts or quantities of one hundred acres of land which, by a law of the United States, were severally granted to Michael Chartrand, Charles Lefoevre, Regis Martin, and Jean Baptiste Robillard, as being militiamen in the Illinois country, on the first day of August, 1790, and had done militia duty therein, and who, by several deeds recorded in the recorder's office, had conveyed the same to the said Jean F. Perry, and which the said Jean F. Perry conveyed to the said Hosea Rigg, in fee simple, by deed dated the second instant, and which said four hundred acres of

land are laid in the improvement of the said Hosea Rigg, where he now resides, at Turkey Hill aforesaid," and which mortgage was given to secure the payment of one thousand five hundred and forty-four dollars, and contained a covenant of general warranty. The plaintiff then proved, by the certificate of the commissioner of the general land-office, that the claims of one hundred acres each were confirmed to Jean F. Perry, as the assignee of Robillard, Chartran, Martin, and Lefoevre, on the fifteenth of January, 1813. He then introduced a certificate of the register of the land-office at Kaskaskia, showing that Hosea Rigg did, on the first day of October, 1814, enter the south-east fractional quarter of section twenty-three, and the north fractional half of section twenty-six, in township one north, of range eight west, which contain, by the certificate of Elias Bancroft, deputy surveyor, three hundred and thirty-nine acres and eighty-five hundredths of an acre, and paid for said fractional quarter and fractional half of sections aforesaid, with his confirmed unlocated claim to three hundred and thirty-nine acres and eighty-five hundredths of an acre, being the whole claim of Jean B. Robillard of one hundred acres, the whole of the claim of Regis Martin of one hundred acres, the whole of the claim of Michael Chartran of one hundred acres, and part of the claim of Charles Lefoevre of one hundred acres, which said claims appear of record in the books of this office, to have been confirmed as militia claims to Jean F. Perry, as assignee of the said Robillard, Chartran, Martin, and Lefoevre; also another certificate from the same officer, showing that Rigg, at the date of his entry, established a right of pre-emption to the north fractional half of section twenty-six, by proof that he cultivated and improved the same, prior to the fifth of February, 1813.

The plaintiff then read in evidence certain entries from the records of the St. Clair circuit court, which showed that at the September term, 1822, in a proceeding by scire facias to foreclose a mortgage, entitled: Adelaide Pensoneau, by her intermarriage etc., v. Hosea Rigg, and Hannah, his wife, a verdict was returned in favor of the plaintiff for two thousand six hundred and eighty-six dollars, for which amount and the costs the plaintiff had judgment, with a general award of execution, and the plaintiff remitted one hundred and four dollars and ninetysix cents of the judgment; that at the March term, 1823, the record was so amended as to show that the remittitur was of a part of the verdict, and not of the judgment, and that the exe

cution ordered was a levari facias. It appeared from these entries that the suit was contested. The plaintiff then introduced an execution issued out of the same county, on the twenty-eighth of March, 1823, commanding the sheriff of St. Clair county, "that of that certain tract of land with the appurtenances thereunto belonging in said county, containing four hundred acres, be it more or less, being the same tract on which Hosea Rigg and Hannah, his wife, lately resided on, and being the same mentioned in the mortgage deed in the scire facias set out, you cause to be made as well the sum of two thousand five hundred and eighty-one dollars and four cents, with interest to be computed thereon from the ninth of September last, which Adelaide Pensoneau, by her intermarriage with Augustin Pensoneau, deceased, administratrix with the will annexed, of all, etc., of Jean Francois Perry, deceased, lately in our circuit court of said county recovered against the said Hosea Rigg and Hannah, his wife, in damages, by reason of the non-performance of the covenants in the said scire facias mentioned, as also the sum of thirty dollars and forty-two cents for the costs and charges about her suit in that behalf expended." On this writ the sheriff made return that he levied the same on the land in question, on the ninth of April, 1823, and sold the land on the twenty-sixth of that month for the sum of one thousand and four dollars and sixty-four cents. The defendant objected to the introduction of the judgment, the execution, and the sheriff's return, and excepted to the decision of the court allowing them to be read in evidence. The plaintiff proved that the lands were duly appraised before the sale, and then introduced a sheriff's deed to Adam W. Snyder, the purchaser at the sale, dated the third of September, 1823, for the lands in question; also, a warranty deed from Synder and wife, to the late Governor Edwards; also, legal conveyances from the heirs at law of Governor Edwards to the plaintiff.

The plaintiff then called William C. Davis, who testified that Governor Edwards died between 1831 and 1834, leaving Elvira Edwards, his widow, and certain persons, his heirs at law. Witness did not know the land in dispute by the numbers, but Hosea Rigg resided on it, and paid a rent of twenty-five dollars per year for two years between 1836 and 1840, to witness for Mrs. Elvira Edwards. Witness acted as the agent of Mrs. Edwards and the family, and Rigg did not object to the payment of the rent. The plaintiff's counsel then asked the witness who had the control of Governor Edwards' property after his death;

AM. DEC. VOL. XLVI-30

to the answering of which question, the defendant objected, but the court overruled the objection, and the witness stated that Elvira Edwards, executrix, controlled the property and managed it for herself and children. The defendant's counsel then asked the witness if Rigg did not say, when he paid the rent, that he was defrauded by Snyder and Edwards in the land. transaction, and to state all that he then said about the title to the land; but, on an objection by the plaintiff's counsel, the court refuse to allow the question to be answered, but instructed the witness to state all that Rigg said in relation to and explanatory of the payment of rent, but not to state what he said in relation to the title of the former owners of the land, and as to his once having paid the mortgage. The witness proceeded to state, that at the time of the payment of the rent, Rigg said he was under great obligations to Governor Edwards, who had promised to let him have the premises as long as he (Edwards) lived, and he then expected that Governor Edwards would live longer than himself; that he expected to pay the rent with his pension money, and had been in the habit of paying rent when the pension agent came around; that at this time, Rigg had an inclosure of thirty acres on the land, and was eighty or ninety years of age. Joseph Scott testified, that Rigg lived on the land in 1797, and afterwards had two mills on the land, and forty acres in cultivation; that Rigg, up to his death, claimed and used the land as his own; that the defendant always resided on the land with her father, and since his death has used and claimed the land as her own. William Moore swore, that Rigg's improvement was on the north fractional half of section twentysix; that from 1820, W. G. Brown claimed one hundred acres of the land, and for some years has had an inclosure thereon; that Rigg had possession of the land in 1814, and cultivated and claimed it as his own to his death, and the defendant has claimed the part unsold since. Joseph Newberry stated, that there was a small improvement on the north part of the land, on which the defendant resided; and he advised her before the commencement of the suit, to sell the land, but she replied she had gained it, and wanted a home.

The defendant then introduced a patent from the United States to Hosea Rigg, for the land in question, dated the twentysecond of October, 1840; also a deed from Hosea Rigg to the defendant, for the north fractional half of section twenty-six, dated July 1, 1841. She then proved by Alexander Scott, that Rigg settled on his improvement in 1801, and resided there till

his death, claiming and using it as his own. Hardy Johnson stated, that he had fourteen acres of the land inclosed at the commencement of the suit; that Davis Pulliam had also an inclosure of twelve acres. The defendant then introduced a deed from her to Johnson for fourteen acres of the land, dated the twenty-fifth of March, 1843; also a deed from her to Pulliam for twelve and a half acres, dated the ninth of October, 1845. The defendant then offered to prove by a witness, that A. W. Snyder paid, in fact, nothing for the land, and that witness employed Governor Edwards as an attorney, in 1818, to examine into the title to the land; and that Edwards afterwards purchased the land, well knowing that Snyder paid nothing for it; which evidence was objected to and excluded by the court. This was all of the evidence.

The court, at the instance of the plaintiff, gave the following instructions: 1. If the jury believe from the evidence, that Hosea Rigg occupied the premises described in the declaration, or a part thereof, as the tenant of the plaintiff or of those from whom he derives title, and paid rent therefor, then the said Hoses Rigg and those claiming under him are estopped by such payment of rent, from questioning that those to whom he paid rent, had at the time title to the land. 2. That the possession of the land in question for more than twenty years by the defendant, or those under whom she claims, is no bar to the recovery of the plaintiff in this suit, if they believe that such possession was in submission to the title of the plaintiff, or those from whom he claims. 3. That possession, in order to bar the claim and right of the plaintiff in this suit, must be adverse to the plaintiff's title; and a possession for more than twenty years consistent with the plaintiff's title constitutes no defense to this action. 4. That the only question in this case is between John Cook and Rachael Rigg, and that the jury in this case have nothing to do with the rights of other persons. 5. That the jury have no right to draw any inference unfavorable to the plaintiff by reason of his objecting to the introduction of testimony, which was excluded by the court as improper. 6. That the mortgage from Rigg and wife to Perry is a mortgage of real estate. 7. That the patent issued to Hosea Rigg in 1840 inures to the benefit of his mortgagee, and those claiming under him; and the issuing of said patent to Rigg in 1840 can not be set up in this case to defeat the title derived from Rigg, for the same land and before the patent issued. 8. That the claims of innocent purchasers not parties to this suit, have nothing to do with