U.S. Supreme Court
Wilcox v. Jackson, 38 U.S. 13 Pet. 498 498 (1839)
Wilcox v. Jackson
38 U.S. (13 Pet.) 498
Ejectment for a tract of land in Cook County, Illinois, being a fractional section embracing the military post called Fort Dearborn at the time of the institution of the suit, in the possession of the defendant as the commanding officer of the United States. The post was established in 1804, and was occupied by the troops of the United States until August 16, 1812, when the troops were massacred and the fort taken by the enemy. It was reoccupied by the United States in 1816, and continued to be so held until May, 1823, during which time some factory houses, for the use of the Indian Department, were erected on it. It was evacuated by order of the War Department in 1823, and was, by order of the department, again occupied by troops in 1828 as one of the military posts of the United States, was again evacuated in 1831, the government having authorized a person to take and keep possession of it. It was again occupied by troops of the United States in 1832, and continued so to be at the commencement of this suit, being generally known at Chicago to be occupied as a military post of the United States. The buildings about the garrison were not sold in 1831, when it was evacuated, although a great part of the movable property in and about it was sold. In 1817, Beaubean bought of an army contractor, for one thousand dollars, a house built on the land. There was attached to the house an enclosure, occupied as a garden or field, of which Beaubean continued in possession until 1836. In 1823, the factory houses on the land were sold by order of the Secretary of War, and were bought by Beaubean for five hundred dollars. Of these he took possession, and continued to occupy them and to cultivate the land without interruption by the United States until the commencement of this suit. The United States, in May, 1834, built a lighthouse on the land, and has kept twenty acres enclosed and cultivated. The land was surveyed by the government of the United States in 1821, and in 1824, at the instance of the Indian agent at Chicago, the Secretary of War requested the Commissioner of the General Land Office to reserve this land for the accommodation and protection of the property of the Indian agent, who, in 1821, informed the Secretary of War that he had directed this section of land to be reserved from sale for military purposes. In May, 1831, Beaubean claimed thus land, at the land office in Palestine, for preemption. This claim was rejected, and, by the Commissioner of the Land Office he was, in February, 1832, informed that the land was reserved for military purposes. This information was also given to others who applied on his behalf. In 1834, he applied for this land to the office in Danville, and his application was rejected. In 1835, Beaubean applied for the land to the land office at Chicago, when his claim to preemption was allowed, and he paid the purchase money and procured the register's certificate. Beaubean sold and conveyed his interest to the plaintiff in the ejectment. Held that Beaubean acquired no title to the land by his entry, and that the right of the United States to the land was not divested or affected by the entry at the land office at Chicago or by any of the previous acts of Beaubean.
The decision of the Register and Receiver of a land office, in the absence of fraud, would be conclusive as to the facts that the applicant for the land was then in possession, and of his cultivating the land during the preceding year, because these questions are directly submitted to those officers. Yet if they undertake to grant preemptions to land, on which the law declares they shall not be granted, then they are acting upon a subject matter clearly not within their jurisdiction; as much so as if a court whose jurisdiction was declared not to extend beyond a given sum should attempt cognizance of a case beyond that sum.
Appropriation of land by the government is nothing more or less than setting it apart for some particular use. In the case before the Court, there has been an appropriation of the land not only in fact but in law, for a military post, for an Indian agency, and for the erection of a lighthouse.
By the act of Congress of 1830, all lands are exempted from preemption which are reserved from sale by order of the President of the United States. The President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. Both military posts and Indian affairs, including agencies, belong to the War Department. A reservation of lands made at the request of the chanroblesvirtualawlibrary
Secretary of War for purposes in his department, must be considered as made by the President of the United States within the terms of the act of Congress.
Whensoever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands, and no subsequent law or proclamation or sale would be construed to embrace it or to operate upon it, although no other reservation were made of it.
The right of preemption was a bounty extended to settlers and occupants of the public domain. This bounty it cannot be supposed was designed to be extended to the sacrifice of public establishments or of great public interests.
Nothing passes a perfect title to public lands, with the exception of a few cases, but a patent. The exceptions are where Congress grants lands in words of present grant. The general rule applies as well to preemptions as to other purchases of public lands.
The act of the Legislature of Illinois giving a right to the holder of a register's certificate of the entry of public lands to recover possession of such lands in an action of ejectment does not apply to cases where a paramount title to the lands is in the hands of the defendant or of those he represents. The exception in the law of Illinois applies to cases in which the United States has not parted with the title to the land by granting a patent for it.
A state has a perfect right to legislate as she may please in regard to the remedies to be prosecuted in her courts and to regulate the disposition of the property of her citizens by descent, devise, or alienation. But Congress is invested by the Constitution with the power of disposing of the public land and making needful rules and regulations respecting it.
Where a patent has not been issued for a part of the public lands, a state has no power to declare any title less than a patent valid against a claim of the United States to the land or against a title held under a patent granted by the United States.
Whenever the question in any court, state or federal, is whether the title to property which had belonged to the United States has passed, that question must be resolved by the laws of the United States. But whenever the property has passed, according to those laws, then the property, like all other in the state, is subject to state legislation so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States.
Every tribunal acting judicially, whilst acting within the sphere of its jurisdiction, where no appellate tribunal is created, its judgment is final, and even where there is such an appellate power, their judgment is conclusive where it only comes collaterally in question, so long as it is unreversed. But directly the reverse is true in relation to the judgment of any court acting beyond the pale of its authority. This principle is concisely and accurately stated by this Court in the case of Elliot v. Peirsol, 1 Pet. 340.
In the Circuit Court of Cook County in the State of Illinois, an action of ejectment was commenced in February, 1836, by John Jackson, on the demise of Murray McConnel against De la Fayette Wilcox for the recovery of a part of the military post of Fort Dearborn, at Chicago, in the State of Illinois, the defendant being then in possession of the premises as the commander of the post. The defendant appeared, and after the usual pleadings the cause was brought to trial in October, 1836, and submitted to the court on an agreed statement of facts, which was to be taken as if found as a special verdict.
The premises sued for are part of fractional section 10, in township 39, north of range 14, east of the third principal meridian, in the County of Cook and State of Illinois, and embrace the military post called Fort Dearborn, of which post, at the time of the bringing of this suit and the service of the declaration therein, the said defendant, De la Fayette Wilcox, was in the possession of the chanroblesvirtualawlibrary
said premises, and was the commanding officer under the authority of the United States, which post was established by the United States in 1804 and was thereafter occupied by the troops of the United States till August 16, 1812, when the troops were massacred and the post taken by the enemies of the country. It was reoccupied by the troops on 4 July, 1816, in which year the United States caused to be built upon the fractional section, No. 10, T. 39, N. R. 14 east, some factory houses for the use of the Indian Department. The troops continued to occupy the post until the month of May, 1823, when it was evacuated by order of the government and was left in possession of Dr. A. Wolcott, Indian agent at Chicago.
On 19 August, in the year 1828, the military post was again occupied by the troops of the government, acting under the order of the Secretary of War, as one of the military posts of the United States. The post was again evacuated by the troops of the government in the month of May, 1831, though the government never gave up the possession of the military post, called Fort Dearborn, but left the same in the possession of one Oliver Newberry, who authorized George Dole to take and keep the same in repair, which said Dole accordingly did. Said post was again occupied by the troops of the government in June, 1832, under the command of Major Whistler, an office in the Army of the United States. At the time Major Whistler took possession, being at the time of the war with the Sock and Fox Indians, several hundred persons were in the fort for security against the Indians. The military post has been occupied by the troops, and was generally known at Chicago to be so occupied from that date up to the commencement of this suit, and is still used for that purpose.
When the military post was evacuated in 1831, the quartermaster at the post, acting under orders, sold a greater part of the movable property in and about the garrison belonging to the government, but sold none of the buildings belonging to the military post.
In the year 1817, John Baptiste Beaubean bought of one John Dean, who was an army contractor at the post, a house built upon said land by the said Dean, and gave him therefor one thousand dollars; attached to the house was an enclosure used and occupied by said Dean as a garden and field, and Mr. Beaubean then took possession of the house and enclosure, and continued in possession, cultivating a part of the enclosure every year from the year 1817 to 17 June, 1836.
In 1823, the factory houses built at the post upon the tract of land were by order of the Secretary of the Treasury sold, and Capt. Henry Whiting became the purchaser thereof. In the same year, Whiting sold said improvements to the American Fur Company, and the company for the sum of five hundred dollars sold to said Beaubean, who took possession thereof, and continued to occupy the same, together with a part of the quarter section of land, to the chanroblesvirtualawlibrary
date of the commencement of this suit. Mr. Beaubean continued to occupy said houses and enclosure upon the land and to cultivate a part of the land unmolested and undisturbed by any person whatever from the year 1817 up to the day of the commencement of this suit.
The land in question was surveyed by the government in the year 1821.
Since the military post was reoccupied by the United States troops in 1832, as before stated, to-wit, before 1 May, 1834, the United States built a lighthouse upon part of the land, and have kept constantly enclosed and cultivated for the use of the said garrison at least twenty acres of said land. The United States troops, by order and consent of the government, have also used and occupied various other government lands near and adjoining the quarter section of land.
On 2 September, 1824, Dr. A. Wolcott, Indian agent, then stationed at Chicago, wrote the following letter to the Secretary of War of the United States, to-wit:
"Fort Dearborn, Chicago, Sept. 2, 1824"
"Sir: I have the honor to suggest to your consideration the propriety of making a reservation of this post and the fraction on which it is situated for the use of this agency. It is very convenient for that purpose, as the quarters afford sufficient accommodation for all the persons in the employ of the agency, and the storehouses are safe and commodious places for the provisions and other property that may be in charge of the agent. The buildings and other property, by being in possession of a public officer, will be preserved for public use, should it ever be necessary to occupy them again with a military force."
"As to the size of the fraction I am not certain, but I think it contains about sixty acres; a considerable greater tract than that is under fence; but that would be abundantly sufficient for the use of the agency, and contains all the buildings attached to the fort, such as a mill, barn, stable, &c., which it would be desirable to preserve."
"I have the honor to be, &c.,"
"ALEXANDER WOLCOTT, Jr."
"HON.J. C. CALHOUN, Secretary of War"
Which letter John C. Calhoun, then Secretary of War of the United States, on 30 September, 1824, enclosed with the following note to George Graham, Esq., Commissioner of the General Land Office of the United States.
"Department of War, 30 Sept., 1824"
"Sir: I enclose herewith a copy of a letter from Dr. Wolcott, Indian agent at Chicago, and request you will direct a reservation to be made for the use of the Indian Department at that post, agreeably to his suggestions. I have the honor to be, &c."
"GEORGE GRAHAM, Esq. J. C. CALHOUN"
"Commissioner of the General Land Office, Treasury Department"
And thereupon, on the first day of October, 1824, George Graham, then Commissioner of the Land Office, addressed a letter in reply to the Secretary of War, at the same time subjoining to the letter of the said Secretary of War, this note, to-wit: "Answered the first of October, 1824, and the frac. Sec. 10, T. 39, N. R. 14 E. colored and marked on the map, as reserved for military purposes."
The letter in reply is as follows, to-wit:
"General Land Office, 1st of October, 1824"
"Sir: In compliance with your request, I have directed that the fractional section 10, Township 39, N. R. 14 E., containing 57.50 acres and within which Fort Dearborn is situated, should be reserved from sale for military purposes. I am, &c."
"HON.J. C. CALHOUN, Secretary of War"
Which fractional section, mentioned in the foregoing letter of George Graham, embraces the premises sued for, and Fort Dearborn, occupied by the United States as aforesaid.
After the writing and receipt of the letters aforesaid, to-wit, on 29 May, 1830, Congress passed a law granting the right of preemption upon the public lands to every person who cultivated any part of a quarter section of said land in 1829, and was in the actual possession thereof on 29 May, 1830, but which preemption right does not extend to any land which is reserved from sale by act of Congress or by order of the President, or which may have been appropriated for any purpose whatsoever or for the use of the United States or either of the states in which any of the public lands may be situated. Mr. Beaubean having cultivated a part of F section in 1829, and having been in possession of a part so cultivated on 29 May, 1830, on 7 May, 1831, made application to the Register and Receiver of the United States Land Office at Palestine, in Illinois, and offered to prove a preemption upon the land and purchase the same at private sale under the preemption law, which claim of preemption upon the land was not by the Register and Receiver at Palestine allowed to Mr. Beaubean.
One Robert Kenzie, on 7 May, 1831, made application to the Register and Receiver of the land office to be allowed to enter at private sale a part of the same fractional section 10, and the claim by the said Register and Receiver was then passed and allowed, and Robert Kenzie was then permitted to enter at private sale under preemption law the north fraction of fractional section ten.
After the application of Mr. Beaubean to the Register and Receiver at Palestine as aforesaid, to-wit, on 7 and 12 May, 1831, Joseph Kitchell, then Register of the land office, addressed letters to Elijah Hayward, Esq., then Commissioner of the General Land Office of the United States, informing him of the application of the said Beaubean to enter said S.W. F section 10, chanroblesvirtualawlibrary
town 39, north of range 14 east, under the preemption act, and on 2 November, 1831, Mr. Beaubean addressed a letter to the said Hayward, commissioner, &c., stating that in the month of May preceding, he had filed in the office at Palestine aforesaid proof of his right of preemption to the land, and insisting that he was entitled to have the claim allowed, and in answer thereto was informed by the commissioner by letter dated 2 February, 1832, that said southwest quarter of said fractional section ten, T. 39, N. R. 14 E. was reserved for military purposes. On 1 October, 1824, several other persons, in behalf of said Beaubean, after his application as aforesaid, prior to the said 2 February, 1832, made inquiry by letter of said commissioner touching the same and were informed by the commissioner that the tract of land had been reserved for military purposes, and said Beaubean's application as aforesaid was rejected.
Afterwards, to-wit on 19 June, 1834, Congress passed an act to revive the preemption law of 29 May, 1830, by the first section of which act is provided that every settler or occupant of the public lands prior to the passage of this act, who is now in possession, and cultivated any part thereof in 1833, shall be entitled to all the benefits and privileges of the act entitled an act to grant preemption rights to settlers on public lands approved 29 May, 1830, and the act is hereby revived, and shall continue in force two years from the passage of this act and no longer, and Mr. Beaubean having cultivated a part of the fractional quarter of section ten in 1833, and having been in the actual possession and occupancy of the part, so by him cultivated, on 19 June, 1834, the date of the passage of the last recited law, did, in the month of July, 1834, apply to the Register and Receiver of the United States land office at Danville, in Illinois, for leave to prove a preemption and enter the fractional quarter under the last recited act, which application and claim of Beaubean was rejected by the said Register and Receiver at Danville aforesaid, who informed Beaubean that said land was reserved for military purposes.
After the writing of the letters by Dr. Wolcott, Indian agent, and J. C. Calhoun, Secretary of War, and George Graham, Commissioner of the General Land Office, hereinbefore referred to and set forth, to-wit, on 26 June, 1834, Congress by a law approved upon that day created two additional land districts in Illinois, one called northwest and the other the northeast land districts of the State of Illinois, and the last mentioned district includes the land in controversy.
By the fourth section of said act it is provided that the President shall be authorized, so soon as the survey shall be completed,
"to cause to be offered for sale in the manner prescribed by law all the lands lying in said land district at the land offices in the respective districts in which the lands so offered is embraced, reserving only section sixteen in each township, the tract reserved for the Village of Galena, such other tracts as have been granted to individuals
and the State of Illinois, and such reservation as the President shall deem necessary to retain for military posts, any law of Congress heretofore existing to the contrary notwithstanding."
It is further provided by said act that there "shall be established in each of said land districts a land office at such time and place as the President may deem necessary," and that a land office was established in said northeast land district before 1 May, 1835, which is the land office at Chicago.
After the passage of the act and after the land office aforesaid was established, the President of the United States, on 12 February, 1835, made and published his proclamation directing various lands in said northeastern land district to be sold at said land office at Chicago. Among said lands so proclaimed for sale is the said fractional section 10, in town 39, N. R. 14 E., unless the same is excepted by the general exception in said proclamation, in the words following, to-wit: "The lands reserved by law for the use of schools, and for other purposes will be excluded from the sale."
The lands were directed by the proclamation to be sold at Chicago land office aforesaid on 15 June, 1835, and before the said 15 June, to-wit, in the month of April, 1835, the Commissioner of the General Land Office caused to be transmitted to said land office at Chicago the extended plat of the land in the said proclamation mentioned, marking and coloring upon said plat certain lands to be reserved from sale, but neither the fractional section 10 or any of the divisions thereof was so marked or colored to be reserved from sale.
At the bottom of the President's proclamation is a general notice requiring all persons who claim the right of preemption to any of the lands in the proclamation mentioned to appear before the Register and Receiver of the land office before the day appointed by said proclamation for the sale of said lands and prove their preemption, and after the notice the said John Baptiste Beaubean did, on 28 May, 1835, appear before the register and receiver of the land office at Chicago, there prove to the satisfaction of the said Register and Receiver that he was entitled to the right of preemption to the said southwest fractional quarter of fractional section ten, and Mr. Beaubean did, on 28 May, 1835, enter and purchase at private sale of the United States and of the Register of said land office, the southwest fractional section ten, and then and there paid to the Receiver of said land office one dollar and twenty-five cents per acre in full payment for said land, and obtained from the Receiver aforesaid the following receipt, to-wit:
"Land Office, at Chicago, Illinois; 28 May, 1835"
"Preemption Act, 19 June, 1834."
No. 6. Received of John Baptiste Beaubean, of Cook County, Illinois, the sum of ninety-four dollars and sixty-one cents, being in chanroblesvirtualawlibrary
full payment for the southwest fractional quarter of section No. 10, in township No. 39, north of range No. 14, east of the third principal meridian, containing seventy-five acres and sixty-nine hundredths of an acre, at the rate of $1.25 per acre.
"E. D. TAYLOR, Receiver"
"$94.61 -- Michigan paper"
Mr. Beaubean also obtained from the register of the last mentioned land office a certificate in the words and figures following, to-wit: :
"Land Office at Chicago, Illinois, May 28, 1835"
"No. 6. It is hereby certified that in pursuance of law, John Baptiste Beaubean, of Cook County, State of Illinois, on this day purchased of the register of this office the lot or southwest fractional quarter of section number ten in township number 39, north of range fourteen east, containing seventy-five and sixty-nine hundredths acres, at the rate of one dollar and twenty-five cents per acre, amounting to ninety-four dollars and seventy-five cents, for which the said John Baptiste Beaubean has made payment in full as required by law. Now therefore be it known that on the presentation of this certificate to the Commissioner of the General Land Office, the said John Baptiste Beaubean shall be entitled to receive a patent for the lot above described."
"JAMES WHITLOCK, Register"
"Pre-emption act, 1834"
Which certificate was presented to the Commissioner of the General Land Office and filed in the office.
Afterwards, to-wit, on 4 March, 1836, the Register of the said land office at Chicago made, signed, and delivered to Mr. Beaubean his certificate in the words and figures following, to-wit: :
"Land Office, Chicago, Illinois."
"I, James Whitlock, register of the land office at Chicago in the State of Illinois, do hereby certify that John Baptiste Beaubean, of the Town of Chicago and State of Illinois, did, on 28 May, in the year of our Lord 1835, under and by virtue of an Act of Congress, passed on 19 June, 1834, entitled, 'An Act to revive an act granting preemption rights to settlers on the public lands,' passed 29 May, 1830, prove to the satisfaction of the register and receiver that the said Beaubean was entitled to the right of preemption under said act of 19 June, 1834, to the southwest fractional quarter of fractional section number ten, in township 39, north of range number fourteen east, and the said Beaubean did then enter and purchase of the United States and of the register of said office the said southwest fractional quarter of fractional section number ten, in township number thirty-nine, north of range number fourteen east, of the third principal meridian, situated in the district of lands offered for sale at the land office at Chicago aforesaid, and is included in the northeast
land district of the State of Illinois, which tract of land contains seventy-five acres and sixty-nine hundredths of an acre, for which tract of land he, the said Beaubean, paid the sum of ninety-four dollars and sixty-one cents, being one dollar and twenty-five cents per acre in full payment for the same."
"All of which appears by the papers on file in said land office, and by the maps, plats, and records of said office now here."
"Given under my hand, as register as aforesaid, at the land office aforesaid, this 4 March in the year of our Lord 1836."
"JAMES WHITLOCK, Register"
Afterwards, to-wit, on 2 July, 1836, Congress passed an act entitled an act to confirm the sales of public lands in certain cases, by the second section of which it is provided that
"In all cases where any entry has been made under the preemption laws, pursuant to instructions sent to the register and receiver from the Treasury Department, and the proceedings have been in all other respects fair and regular, such entries and sales are hereby confirmed, and patents shall be issued thereon as in other cases."
It is admitted that the defendant, Wilcox, at the commencement of this suit and at the time of the service of the declaration in ejectment herein, was in the occupancy and possession of the premises in said declaration mentioned, which is a stockade of pickets, including some wooden buildings in which the soldiers and officers reside, and that the rents and profits of said premises then was and still are of the value of three dollars per month.
It is also admitted that said defendant Wilcox then was and still is an officer in the United States Army, and was ordered into possession and command of the military post on the premises, together with the United States troops under his command, by order of the Secretary of War of the United States, and that said Wilcox claims no right of ownership in himself to the land, but is in possession of and occupies the same not in his own right, but as an officer of the Army of the United States only, in the command of the post, acting under order of the Secretary of War and of his superior officer and of the United States.
After the purchase of the said land by Mr. Beaubien as hereinbefore stated, to-wit, on 6 February, 1836, he, the said Beaubien, by deed duly executed, acknowledged, and recorded, according to the laws of the said State of Illinois, for and in consideration of the sum of _____ dollars therein expressed, sold and conveyed the said premises, in the declaration mentioned, to Murray McConnel, the lessor of the plaintiff, who purchased with a knowledge that a controversy existed between Mr. Beaubean and the government about said land.
It is further admitted that after the purchase of the land by J. B. Beaubean as hereinbefore stated, Elijah Hayward, Esq., then Commissioner of the General Land Office, on 31 July, 1835, addressed a letter to the Register and Receiver of the land office chanroblesvirtualawlibrary
at Chicago, stating that it had been represented to the department that the land officers at Chicago had permitted to be sold said southwest fractional section ten, T. 39 N. R. 14 E., including the site of Fort Dearborn, and informing them that such sale is invalid in consequence of the reservation and appropriation of said fraction for military purposes since the year 1824, and directing the Receiver to refund to Mr. Beaubean the amount of the purchase money paid thereon, which money was tendered by the Receiver to Mr. Beaubean, who refused to receive the same.
On 23 January, in the year 1834, Elijah Hayward, then Commissioner of the General Land Office, addressed a note to the Hon. Lewis Cass, then Secretary of War of the United States, enclosing a copy of the letter of 30 September, 1824, from the then Secretary of War, Mr. Calhoun, requesting that said tract of land at Chicago, upon which Fort Dearborn was situated, might be reserved for the Indian Department, and a copy of the commissioner Graham's reply, of 1 October, 1824, hereinbefore set forth, stating that he had directed the land to be reserved for military purposes, and after stating that the tract of land in question, designated as fractional section ten, T. 39 N. R. 14 E., was claimed under the act of Congress granting preemption rights, and Mr. Commissioner Hayward then requested said Secretary Cass to advise the office whether it was then (to-wit, on 23 January, 1834) needed by the War Department, and if so, whether it is considered a military reservation, or as a reservation for the use of the Indian Department, and on 21 March, 1834, the Secretary of War addressed a letter in answer to the inquiry of the commissioner informing him that the reservation at Chicago, alluded to in the letter of the commissioner of 23 January, 1834, was wanted and was actually used for military purposes.
It is admitted that various persons from time to time have resided upon the fractional quarter section ten, as well as Mr. Beaubean, but all those persons were in some way connected with the army and acting under the command of the United States' officers, and that one Samuel T. Brady (who was a settler at said military post) in June, 1835, presented his claim to the right of preemption to the land before the register and receiver of the said land office at Chicago, but which claim was rejected by the land officers or never acted upon by them.
All the facts herein stated are admitted to be true, but they are not admitted to be evidence in the cause unless the court should be of opinion, upon the hearing of the case, that the facts or any of them would be admissible as evidence, if offered in evidence by one party and objected to by the other upon the trial of the cause before a jury.
It is agreed that if the court should be of opinion upon the hearing of the case that the law of the case is with the plaintiff, a judgment shall be rendered, that he recover his term aforesaid, and that he have his writ of possession, &c., and that a judgment be rendered chanroblesvirtualawlibrary
against the defendant in favor of the plaintiff, for the use of the said lessor, for the amount of the rents and profits in the said plaintiff's declaration mentioned, together with his costs. But should the court be of opinion that the law of the case is with the defendant, then the plaintiff shall take nothing by his suit, and a judgment shall be rendered against the lessor of the plaintiff for the cost of this suit.
Each party retains the right to remove the cause to the Supreme Court of the State of Illinois by appeal or writ of error.
The judge of the Circuit Court of Illinois gave judgment for the defendant, and an appeal was taken to the Supreme Court of Illinois, by which court the judgment of the circuit court was reversed and judgment entered for the plaintiff below.
To reverse this judgment, this writ of error was sued out at the instance of the United States, it being interested in the case. chanroblesvirtualawlibrary