Ross v. Reddick

Browne, Justice, delivered the opinion of the Court: This was an action of trespass quare clausum fregit, brought by the defendant in error against the plaintiffs in error, before the Circuit Court of Peoria county. The land that the trespass was committed on, is described in the declaration by the number of the section, township, and range. On the trial in the Court below, the plaintiff proved that the trespasses complained of, were committed on the tract of land described in the declaration, but introduced no evidence to show that the land was situated in the county of Peoria. The county of Peoria was formed by an act of the legislature, passed January 13th, 1825.(2) In that act, the limits of Peoria county are formed and described by reference to the lines of the public surveys. The statute defining the boundary of the county, is a public one, and the Courts are bound judicially to notice it. The official certificate of the Register of a Land Office, to any fact on record in his office, is competent evidence of such fact, and is made so by the act of 1827.(3) The certificate of the Register of the Land Office went to show the right of pre-emption in the plaintiff to the land in question. It appears that issue was joined upon two of the pleas filed by the defendants, but the other plea was not joined. If several pleas be pleaded, one of which is not answered,—and particularly where the matter may be given in evidence under the general issue,—and the parties go to trial without any objection on the part of the defendant, that such plea remains unanswered, it will he considered as waived, or the irregularity will be cured by the verdict of the jury. The Court is therefore of opinion that the judgment of the Circuit Court of Peoria county be affirmed with costs. Judgment affirmed. Footnotes [(2)] Acts of 1825, 85, 86. [(3)] Acts of 1827, 199; R. L. 280; Gale’s Stat. 287.