Peoria County IL Archives Court.....Rankin, V Curtenius 1850 ************************************************ Copyright. All rights reserved. http://www.usgwarch.org/copyright.htm http://www.usgwarch.org/il/ilfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 24, 2008, 7:22 pm Source: Records Of Cases Illinois Written: 1850 John Rankin, appellant, v. Alfred G. Curtenius et al., appellees. Appeal from Peoria. A patent which is not issued to the real claimant, or to the legal representatives of a claimant, of lands in the old village of Peoria, is void. (a) A motion to set aside a nonsuit is addressed to the discretion of the court, and the decision upon it cannot be assigned for error. If a plaintiff is dissatisfied with the fuling of the court, he should submit his case for trial, and take exceptions; and if the finding is against him, he can then test the correctness of the decision. (b) The Circuit Court has no authority to nonsuit a plaintiff, or to instruct the jury to find against him, as in case of a nonsuit. This cause was tried before Kellogg, Judge, and a jury, at the May term, 1851, of the Peoria Circuit Court. The facts connected with this trial are stated by the court. N. H. Purple and R. S. Blackwell, for appellant. E. N. Powell and H. O. Merriman, for appellees. Treat, C. J. This was an action of ejectment brought by Rankin against Curteius and others, to recover the possession of a lot in the city of Peoria, covered by French claim seventy. On the trial, the plaintiff introduced the following evidence: 1. A patent from the United States, dated December 11, 1849. It recited that claim seventy was entered in the report of the register of the land office at Edwardville, made pursuant to the act of congress of the fifteenth of May, 1820, "in the name of Louis Pensoneau under Augustine Laroche;" that Laroche was the settler within the purview of the act of congress of the third of March, 1823; and it then proceeded to grant the lot, as surveyed under the second section of that act, to "the legal representatives of the said Augustine Laroche, and to their heirs." 2. A deed for the lot from Laroche to Louis Pensoneau, junior, dated the eighth of May, 1819. 3. A deed for the same premises, from Harriet S. Pensoneau and Louis P. Pensoneau to the plaintiff, dated the first of May, 1849. 4. Proof that Louis Pensoneau, junior, died about the year 1825, leaving Harriet S. Pensoneau and Louis P. Pensoneau his only heirs at law. 5. A copy of the plat and survey of the French claims in Peoria, approved first of September, 1840. The possession by the defendants was admitted. The defendants read in evidence the report of the register of the land office at Edwardsville, of the tenth of November, 1820, in which the claim in question is thus described: "No. 70. Louis Pensoneau claims a lot in Peoria, bounded northwardly by a lot of Pierre Lavapieurdit Chamberlain, eastwardly by a street separating it from the Illinois river, southwardly by a cross street, and westwardly by a back street." The court then, at the instance of the defendants excluded the whole of the evidence from the jury; and the plaintiff submitted to a nonsuit, with leave to move to set the same aside. He afterwards entered a motion to set the nonsuit aside, which the court denied, and he now assigns that decision for error. The judgment of the Circuit Court must be affirmed on two grounds: First. The evidence was properly excluded. The patent was obnoxious to the same objections, as the one relied on in the cases of Ballance v. McFadden and Gray v. McFadden, ante. It was not issued to the real claimant of the lot, or to his legal representatives. Louis Pensonean, the elder, was the sole claimant; and he claimed the lot in his own right, and not as a representative of Laroche. The confirmation operated exclusively to his benefit, if to the benefit of any one; and the patent should have been issued to him alone, or to his legal representatives. Laroche never claimed the lot, and, consequently, was not entitled to the patent. If Louis Pensoneau, the younger, claimed the lot by virtue of the conveyance from Laroche, he should have become a claimant before the register. The patent having been issued without authority of law, the evidence did not tend to prove title in the plaintiff, and was, therefore, rightfully excluded. Second. The refusal of the court to set aside the nonsuit cannot be assigned for error. The motion was addressed to the discretion of the court. The plaintiff voluntarily submitted to a nonsuit, and he cannot now complain that the court refused to set it aside. He might, notwithstanding the ruling of the court, have submitted the case to the jury. And not until a verdict was returned against him, and a judgment in bar entered thereon, could be call in question the decision of the court excluding the evidence. Under our practice, the court has no authority to nonsuit a plaintiff, or to instruct a jury to find against him, as in case of a nonsuit. If he suffers a nonsuit, it is purely voluntary: *Amos v. Sinnott, 4 Scammon, 440. And he cannot afterwards compel the judge to sign a bill of exceptions: The People v. Browne, 3 Gilman, 87. By submitting to a nonsuit, he is precluded from prosecuting an appeal or writ of error, for the purpose of reviewing the decisions of the court: Barnes v. Barber, 1 Gilman, 401. The case of Lombard v. Cheever, 3 Gilman, 409, was precisely such a case as this. The plaintiff, on the exclusion of certain evidence, suffered a nonsuit, under permission to move to set it aside. The motion was afterwards made, and denied. This court, after citing the case of Barnes v. Barber, said: "Nor does the fact, that the nonsuit was taken with leave to the plaintiff to set it aside, vary the result." The judgment is affirmed. Judgment affirmed. ----------------- (a) See Ballance v. McFadden, ante 317, and note (a). (b) Brown v. Malledy, 19 Ill., 290. Additional Comments: Reports of Cases Determined in the Supreme Court of the State of Illinois from November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor at Law. Volume XII. Reprinted from the Original Edition, with Annotations by William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 1881. File at: http://files.usgwarchives.net/il/peoria/court/rankin145gwl.txt This file has been created by a form at http://www.genrecords.org/ilfiles/ File size: 6.6 Kb