Opinion of the Court.

appeared. Whether the four met at the same time and place, by accident or design, is not explained by the evidence. But, be that as it may, when the two defendants were met by the four Cobines and a fight ensued, in which the four were engaged against the two, the defendants, under all the circumstances, might well apprehend great bodily harm, and yet, while they may have acted as reasonable men, taking into view all the surrounding circumstances, still under the instruction, if regarded by the jury, they would be bound to find the defendants guilty.

It is true the instructions on the same subject, given on behalf of the defendants, laid down the law correctly. But that was not enough. The jury may have disregarded the instructions for the defendants, and followed those given for the people. They had as much right to follow the one as the other, and it is impossible for a court to say which instructions controlled the deliberations of the jury. If the jury followed the sixth instruction given for the people, as we may presume, from the verdict, they did, then they were misled, and defendants were denied the right of self-defence, which was secured to them by the law. We are, therefore, of opinion that the instruction was calculated to deprive the defendants of a fair trial before the jury, and for this reason the judgment will have to be reversed.

Exception was taken to other instructions given for the people, but we find no substantial objection to them. They are in the main correct; at all events they could not mislead the jury.

For the error indicated the judgment will be reversed, and the cause remanded.

Judgment reversed.

Brief for the Appellants.

MARCUS L. HUGHES et al.

v.

GEORGE STEVERS.

Filed at Mt. Vernon June 14, 1880.

1. ADVERSE POSSESSION-what constitutes. It has been held that an individual making an entry on land of the United States before grant, remains an intruder still after grant by the United States, and liable to be sued in trespass.

2. Where a person obtained a patent from the United States, while another was in possession under an entry made prior to that time, it appeared the patentee stated, after the grant from the government, that the person in possession had bought the land, and that he, the patentee, had made him a deed, and that, subsequently, the occupant gave it back to him to secure a store account, and that the occupant had paid him for the land. The witness by whom this statement was proven, also testified that he had known the occupant for twenty-five years on the land; that he claimed the premises, cleared and built on it, and cut timber on it, and that the statements by the patentee were made more than twenty years before the trial. It was held, that, under this state of facts, it might be regarded the possession of the occupant was adverse to the patentee, as showing what would be tantamount to a new entry after the grant from the United States;-that the occupant was holding adverse to all the world, in his own right, as owner by purchase of the title from the patentee.

APPEAL from the Circuit Court of Pulaski county; the Hon. O. A. HARKER, Judge, presiding.

Mr. SAMUEL P. WHEELER, for the appellants:

The bill of exceptions shows the following facts:

A patent for the land involved in this suit was issued by the United States to William A. Hughes, January 10, 1851. The appellants are the only surviving heirs at law of William A. Hughes, who died before this suit was brought, and furthermore, that the taxes on the land in controversy have been paid up to and including the year 1874, by William A. Hughes, up to the time of his death, and by the appellants since that

Opinion of the Court.

The defendant claims twenty years' adverse possession, and also attempts to establish a title by deed from William A. Hughes, without producing the original instrument, or attempting to procure it, or in any way establishing its loss, or proving its contents. The first claim can avail nothing. The appellee was in possession of this land in 1848, and has been ever since. The patent from the United States was not issued until January 10, 1851. Possession, in order to defeat the legal title where there is no paper title, must be adverse, and hostile in its inception, and continue hostile, uninterruptedly, for twenty years. Turney v. Chamberlain, 15 Ill. 271; Jackson et al. v. Bomer, 48 id. 203, and cases cited.

There can be no adverse possession as against the United States or its grantee, unless there be a new entry after the grant. The individual making the original entry, after the grant by the United States, remains an intruder. Cook et al. v. Foster, 2 Gilm. 652; Thompson v. Prince, 67 Ill. 281.

The court erred in admitting evidence of an alleged conveyance from William A. Hughes to the appellee. If there ever was such a deed, there was no notice to produce and no proof of its contents.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of ejectment, by appellants, to recover the east half of the north-east quarter of section 30, township 14 south, range 2 east, which they claim in fee.

The suit was commenced February 2, 1875. At the last trial a verdict was rendered in favor of the defendant, a motion for a new trial was overruled and judgment entered upon the verdict, and the case comes here on appeal.

The overruling of the motion for a new trial is assigned as

error.

On the part of the plaintiffs, proof was made of a patent for the land in controversy, issued by the United States to William A. Hughes, January 10, 1851; that plaintiffs were the only surviving heirs at law of William A. Hughes, who died

Opinion of the Court.

before this suit was brought, and that the taxes on the land were paid up to and including the year 1874-by William A. Hughes up to the time of his death, and by the plaintiffs since that time.

The defendant claims twenty years' adverse possession.

It is urged that this claim can avail nothing, because the defendant was in possession of the land in 1848, and has been, as is admitted, ever since; that the patent from the United States was not issued until January 10, 1851; that possession, in order to defeat the legal title, must be adverse, and hostile in its inception, and continue hostile, uninterruptedly, for twenty years; that there can be no adverse possession as against the United States, or its grantee, unless there be a new entry after the grant; that the individual making the original entry, after the grant by the United States, remains an intruder,—and Cook et al. v. Foster, 2 Gilm. 652, is cited as in support of the doctrine.

The decision in that case is to the extent, that an individual making an entry on land of the United States, before grant, remains an intruder still after grant by the United States, and liable to be sued in trespass.

There was in the present case the testimony of a witness in regard to a conversation he had with William A. Hughes about the land, in which Hughes stated that the defendant had bought the land, and that Hughes had made him a deed, and that, subsequently, defendant gave it back to him to secure a store account; that Hughes said defendant had paid him for the land. The witness stated he had known defendant for twenty-five years on the land; that defendant claimed the premises, cleared and built on it, and cut timber on it; that this conversation was more than twenty years ago.

However it might otherwise be, we think this is evidence going to show that the possession of defendant was adverse to Hughes. Under the state of facts admitted in this conversation with Hughes, the possession of defendant must have been adverse to Hughes. It would show what would be tan

Syllabus.

tamount to a new entry after the grant from the United States that defendant was holding adverse to all the world, in his own right, as owner by purchase of the title from Hughes. It might not be competent evidence of a deed from Hughes, and as showing title in defendant by virtue thereof; and it is not in that view that we receive the evidence; but it is competent as an admission of Hughes going to show the character of the possession of defendant-that it was adverse to Hughes. We think the evidence made out a case of twenty years' adverse possession by the defendant, and thus a bar to the action.

The judgment will be affirmed.

Judgment affirmed.

JOHN BULLINER et al.

v.

THE PEOPLE OF THE STATE OF ILLINOIS.

Filed at Mt. Vernon June 14, 1880.

1. WITNESS-disregard of rule of separation. Where a witness, after an order of separation, converses with other witnesses, after they have testified, and with counsel calling him, in violation of an order of the court, it is a matter of discretion with the court to allow him to testify. The disregard of such a rule is a good ground for the punishment of the parties for a contempt, but does not necessarily disqualify the witness from testifying.

2. There might probably be such an interference with witnesses, in disregard of an order of court, as would justify the setting aside of a verdict based on their testimony, where the opposite party has been free from fault, and the fact has come to his knowledge for the first time after the examination of all the witnesses has concluded; but where it is not shown that the party complaining had no knowledge of the fact at the time of the examination of the witnesses, and it does not appear that any harm has resulted from the disregard of the rule, it will afford no ground for a reversal of the judgment.

3. After an order of court for the separation of witnesses in a criminal case, the defendant's counsel stated that they wanted a certain witness present, who had been sworn, to assist them, stating that they would not call him as a