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Doswell v. De La Lanza et al.

instructions asked by him and refused, as to those given against him, on the prayers of the defendants.

The decision of the court on a motion for a new trial, which was excepted to, affords no ground for a writ of error. Such a motion is addressed to the sound discretion of the court, on a consideration of the evidence before the jury; and this court can no more control that discretion than when it is exercised by the Circuit Court, in granting continuances or amendments of the pleadings.

As to the pleas which set up the claim and possession of Villareal, as a bar, under the statute of limitations, to the plaintiff's action, it does not appear from the evidence that the defendants are in any way connected with that title. There is nothing in the facts of the case which conduce to show an entry under it by the defendants, or that they entered under any claim of title. It is proved by one witness, that a part of the defendants, if not all of them, were in possession of the premises they now occupy, at least one year prior to the 8th of October, 1849. On the 3d of that month and year, the seizin of the plaintiff is stated in his petition. From this, it would appear that the defendants' possession was prior to the seizin of the plaintiff'; so that, in regard to him, they cannot be considered as having ejected him by their entry, his legal title not having then accrued. But if the defendants entered without claim of title, which must be presumed, as they have shown no title, they become trespassers on the premises of the plaintiff after his title accrued.

Villareal died in 1844 or 1845. It is contended that he retained possession of the premises up to 1839, and that Kinney took possession in that year under him, and continued in the possession until the commencement of this action. This possession is controverted by the plaintiff, on evidence that Kinney's residence was in another county, and that he was only occasionally at Corpus Christi; but, if his possession be admitted as asserted, it is not perceived how it could inure to the benefit of the defendants under the statute of limitations, as Kinney is not a defendant, and they show no privity with his title. Possession, to be effectual, either to prevent a recovery or vest a right under the statute of limitations, must be an actual possession, attended with a manifest intention to hold and continue it. It must be, in the language of the authorities, an actual, continued, adverse, and exclusive possession for the space of time required by the statute. It need not be continued by the same person; but when held by different per sons, it must be shown that a privity existed between them. Wheeler v. Moody, 11 Texas Rep., 372.

Doswell v. De La Lanza et al.

In the action of ejectment, the defendant may show a paramount outstanding and subsisting title for the same land in a stranger, to defeat the plaintiff; and the rule of evidence is the same in this action, although it is prosecuted under the forms adopted by Texas. A large portion of the evidence in the record, and many of the authorities cited in the Circuit Court, were to show an older and paramount title to the same land, under the Mexican Government, by Villareal, and Kinney, his assignee; but, as there are other points on which the case may be decided, the court will not consider the validity of that title.

The court instructed the jury, that if the surveys were made west of the Nueces river, on Corpus Christi bay, prior to the 24th of May, 1838, by the deputy surveyor of San Patricio county, they were void, because San Patricio did not at that time extend west of the river Nueces; and the approval of the county surveyor, Buchanan, even if given after the 24th of May, 1838, does not make them valid.

It was held, in Linn v. Scott, 3 Texas Rep., 6, that a survey made by a surveyor of any other county than that in which the land lies, is a nullity. But, in Horton v. Pace, 9 Texas Rep., 81, the court say, "We do not question the right of a surveyor to adopt a previous survey he thinks correct; but we do not admit it was the duty of the court to oblige him to adopt one shown to be incorrect." And in Warren v. Sherman, 5 Texas, 441, it is said a survey, whensoever made, if supported by a recommended certificate, is, in contemplation of law, valid; if otherwise, it is without legal foundation. In Lake v. Wafer, 16 Texas Rep., the court held, "A survey made in 1841 without certificate, and applied to the certificate of 1844, constitutes no objection to the validity of the patent." If a deputy surveyor make a survey for himself, on a certificato belonging to himself, when approved by the district surveyor, it becomes the act of the latter, and was so far valid. Howard v. Perry, 7 Texas Rep., 259.

Under these decisions, the Circuit Court erred in giving the above instruction. If the surveys were void when made west of the Nueces, as being without the limits of San Patricio county, they were made valid by the subsequent approval of the county surveyor, after the county limits were extended west of that river.

The cancellation of the patents stated by the acting Commissioner of the Land Office, by the advice of the Attorney General, was proper. The Commissioner, in issuing a patent, performs a ministerial duty; and if it be fraudulently or negligently issued to an improper person, the error should be cor

VOL. XX.

3

Wade v. Leroy et al.

rected. The divestiture of the title by the Government can only be accomplished in the mode authorized by law.

It is desirable that points of exceptions and instructions. asked from the court to the jury should be as few and as concisely expressed as may be consistent with the interests of the respective parties.

The judgment of the Circuit Court is reversed, and the cause remanded for further proceedings.

20h 34 AMOS WADE, PLAINTIFF, v. JACOB R. LEROY AND HENRY E. PIERREPOINT.

L-ed 813

2b 592

118 554

122 608

136

45f 410

149 268

459 In an action against the owners of a ferry boat, for personal injuries sustained by the negligence of its officers, it was held that the plaintiff might show that he was engaged in a particular business, and had been incapacitated from attending to it, as exhibiting the extent of the injury, and that it had occasioned expense, suffering, and loss of time which had value to him, although the nature of his occupation was not set forth in the declaration.

THIS case came up from the Circuit Court of the United States for the southern district of New York, on a certificate of division in opinion between the judges thereof.

The case is stated in the opinion of the court.

It was argued by Mr. Gillet for the plaintiff, on which side there was also filed a brief of Mr. Reed, and by Mr. O'Connor for the defendants, on which side there was also a brief of Mr. Silliman.

The following notice of the points made by the counsel for the plaintiff is taken from the brief of Mr. Gillet:

POINTS.

FIRST.-Under the averments in the declaration, the plaintiff had a lawful right to prove that he was engaged in business, its character and extent.

The amount of damages sustained by the plaintiff essentially depended upon questions, whether the plaintiff was engaged in business, its peculiar character, and the extent of it.

The plaintiff would suffer more damage if deprived of a good business, than if he had none to lose.

Its character might be such that he could not attend to it at all, or only partially so, after his injury.

If his business was large, so as to require health, strength, and talents, he would lose more than if it were small, and

Wade v. Leroy et al.

easily attended to. He could hire a substitute to attend to the latter for a less sum than he could to transact the former.

The evidence offered was clearly admissible for these purposes, and went to show the damage actually sustained. If the plaintiff's business had been that of a day laborer, who could only earn a dollar per day, his actual loss would be far less than if he had been earning ten. If he had been employed on wages, the injury could have been ascertained by proving the compensation he received.

When engaged in his own business, the extent of his loss could only be ascertained by proving the nature and extent of his business, so as to show how much his services were actually worth to himself. If his business were small, and easily managed, the damage would be less than if it were large, and managed with difficulty. The manager of a large plantation would sustain more damage by loss of his time than the manager of a small patch of land. A lawyer earning ten thousand dollars per annum would sustain a greater loss in being rendered unfit for business, than would a pettifogger who could only earn a hundred or two.

SECOND.-Future as well as present losses may be considered in estimating damages.

When a party loses a leg or arm, in estimating his real loss, we look to his probable future under the state of his injury, to form an opinion of the damages he has sustained. If the injury is temporary, the damages will be far less than if lasting and permanent. A flesh wound will soon heal, but a lost limb cannot be restored; both should, however, be considered in estimating the damages sustained-the loss of a limb will be continually felt as long as the party losing shall live, and hence a young person will sustain a greater injury than one whose life is nearly ended. If the mind is destroyed, the loss to a young man, who is supposed to have more years before him than an old one, is much greater than with one whose years are drawing to a close. It follows, that the probable future of the injured party is a proper subject of consideration. THIRD.-The damage alleged in the declaration was special, as distinguished from particular damage.

Particular damage is where the particular instance of damage is avowed; special damage is where the loss follows from a specific statement of a fact, which generally or naturally results from the statement, as a cause competent to entail such a

consequence.

The declaration avers that the injury affected the plaintiff's brain, and affected his memory and understanding, which were impaired thereby; and that he lost his sense of hearing;

Wade v. Leroy et al.

and that he would hereafter suffer much mental and bodily pain and anguish, as well as personal mortification. The damages so specified were special, but not particular-the averment is, that they resulted from the injury. If the injury complained of affected and injured his brain, and impaired his understanding, and he lost his sense of hearing, a necessary and natural consequence was, that he was incompetent to attend to any business, and especially such as that in which he was engaged.

A man who could not hear, and whose brain was injured and affected, and his memory and understanding injured and impaired, was not competent to pursue the business in which the plaintiff was engaged, even though he might have been able to attend to some kinds of business, like tending a porter's lodge, where very little memory or understanding is required. If the plaintiff were not permitted to prove these consequences, necessarily resulting from facts specifically avowed, then he would be debarred presenting a very essential part of his case, and would be prevented from recovering the whole amount of damages actually sustained. This would occasion gross injustice. When a person is made deaf, his memory and understanding injured and impaired, it is hardly possible that any pecuniary damage can make him good: he cannot be fit for business; he can do nothing and earn nothing in his business, if it should require the exercise of hearing, or memory, or understanding. Aside from the pecuniary consequences resulting from such an injury, his life must be one both monotonous and irksome, and almost wholly destitute of those pleasures and that happiness which those in full health, bodily and mentally, must ever enjoy.

FOURTH. When the action can be maintained without specifying any particular damage, it is not necessary to aver any particular instance of damage.

When the law implies damage, there can be no reason for stating it with particularity. If a person loses an eye, an ear, a limb, or his general health, the law implies damage, the same as if deprived of his property or any other legal right. Words actionable in themselves imply damage, and none need be proved; but if actionable only by reason of some consequence which might or might not follow, then the particular damage must be averred and proved. The loss of hearing, of memory, and understanding, imply injury, and necessarily and naturally result therefrom, and no particular damage need be averred or proved. This change in the condition of a person cannot be made without producing injury to him in his pecuniary circumstances and in his enjoyments. Such an injury

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