
    Wm. M. Cook v. Antonio de la Garza.
    Where, in an action against Cook and Harper, for forcibly dispossessing the plaintiff of t-ha hou>c and premises whore he resided, the jury found a verdict as follows: ‘‘ We, the jury, in the ca.se of Antonio de la Grarza u. William M. Cook, find for the plaintiff in the sum of six hundred dollars damages,” whereupon judgment was rendered against Cook and Harper, from which Cook alone appealed : Held, In answer to the objection that the verdict was against Cook alone, that the verdict was general against both, the attempted statement of the ea^o being mere surplusage,
    At Fall Term, 1850. verdict for plaintiff, and new trial op motion of defendant; Spring Term, 1851, continued on affidavit of the defendant; Fall Term, 1851, case called and laid over one day, at the request of the defendant; next day motion by the defendant for change of venue, and time asked to prepare the affidavits. After waiting what the jtfdge considered a reasonable time, and no affidavits being presented, the case was ordered to proceed: Held, That the application for a change of venue came too late to entitle it to favor or to consideration as a matter of right.
    As the jury, in an action of trespass, are"not restrained in their assessment of damages to the amount of the mere pecuniary loss sustained by the plaintiff, but may award damages in respect of the malicious conduct of the defendant, and the degree of insult with which the trespass has been attended, the plaintiff is at liberty to give in evidence the circumstances which accompany and give character to the trespass, although distinct actions might have been maintained in respect of such circumstances; but the jury are not to award damages in respect of the distinct injuries involved in the circumstances accompanying the principal trespass, but only in respect of the principal trespass itself. (Note 5(h)
    Where the plaintiff being absent from home, the defendants requested liis wife to go out of flic house, which she refused to do, whereupon they removed the furniture and effects» which were in the house, into the yard, and then took hold of the plaintiff’s wife, each taking her by an arm, and led her out of the house, she having an infant in her arms and resisting, and then pulled down one side and end of the house, and the cow pen and let out the cattle, the house and cow pen being of little value, and remained in possession for a time, after which the plaintiff went again into possession: Held, That a verdict for six hundred dollars damages was not so excessive as to warrant sotting it aside.
    Appeal from Victoria. This was an action brought by the appellee against the appellant ami H. and E. S. and G. F. Harper, for a trespass committed, by forcibly dispossessing the plaintiff of the bouse and premises where be resided. The plaintiff discontinued as to two of the defendants, II. and G. F. Harper. At the Fall Term, 1850, therqt was a verdict for the plaintiff and a new trial granted. At the Spring Terin, 1851, the canse was continued on affidavit of'the defendant, Cook. At tire Fall Term thereafter, the cause being called for trial, the plaintiff announced himself ready, whereupon tlie defendants asked that tlie cause he postponed until the next day, which was accordingly done. When the cause was again called for trial on the following- day, the defendant, Cook, moved the court for a change of venue and asked time to prepare an affidavit in support of his motion. The court gave what the .judge deemed, under the circumstances, a reasonable time; but no affidavit was offered, and the court directed the trial to proceed. A witness for the plaintiff testified that early in 1S49 he was present at a trial of the right of possession of the premises on which the plaintiff resided, between the plaintiff, and the defendant, Cook; that the decision having been adverse to the right of Cook, he said it was useless to try to get justice done in tlie courts of this country, and that lie intended to take the matter into his own hands and to take possession of tlie land; that the plaintiff liad promised to give him possession of tlie land if he did not show him a good title; that ho liad shown none; that the land was his, (Cook’s,) and he intended to have it, and that he would put Harper in possession. Tlie plaintiff was then living on the land, on which he had built two small houses and a cow pen, and had made some other improvements. .It was in evidence that the defendant, Cook, in company with others, went to tlie house of the plaintiff and asked him if he would give him possession, to which tlie plaintiff replied lie would not. Tlie defendant then left, but returned in tlie evening witli tlie witness and the three Harpers. The plaintiff' being-absent, they requested his wife to go out of the house, which she refused to do. They then removed the furniture and effects which were in the house into tlie yard. Cook and one of the Harpers then took hold of the plaintiff’s wife, eacli taking her by an arm, and led her out of the house, she having an infant in her arms, and resisting. They then pulled down one side and end of the house; they also pulled down the cattle pen and let out tlie cattle. The house and cow pen were of little value. Tlie Harpers remained in possession for a time, since which the plaintiff has been in possession.
    The defendant asked instructions to the effect that tlie jury were restricted, in their estimation of the damages, to the injury actually sustained, which the court refused, and instructed the jury that in their estimation of tlie damages they were at liberty to take into consideration all the circumstances of the case. Tlie jury returned the following verdict: “We, the jury in the case of “Antouio de ia Garza v. William H. Cook, find for tlie plaintiff in the sum of “ six hundred dollars damages.” The defendants moved for a new trial, whieli the court refused, and gave judgment upon tlie verdict against both defendants, and tlie defendant Cook appealed. Tlie errors assigned were:
    1st. Tiie not giving time to perfect the application for a change of venue.
    2d. Tlie instructions to the jury.
    3d. That the verdict was not authorized by the evidence, and is contrary to law, and that tlie damages are excessive.
    
      J. A. Mitchell and W. Alexander, for appellant.
    
      A. S. Cunningham, for appellee.
   Wheeler, J.

The objection now urged to the judgment, that the verdict was against Cook alone, and did not authorize judgment to be rendered against his co-defendant, is not embraced in tlie assignment' ol errors; and this might be a sufficient answer to the objection. It is susceptible of the farther answer, that if an error, it has operated no injury to Cook, and his co-defendant lias not appealed. There is,however, [361] nothing in tlie objection. The verdict is general for the plaintiff. The attempted statement of the title of the ease was mere surplusage. The verdict possesses the essential requisites of intelligibility and certainty, and it is not vitiated by the misdescription of the case which it contains.

The application for a change of venue came too late to entitle it to favor or to consideration as a matter ‘of right, especially as the delay in presenting it was not explained. It is the right of a part}1, on compliance with the requirements of the law, to have a change of venue; hut this, like every other right, must he asserted within a convenient and reasonable time. This does not appear to have been done in the present case, and, under the circumstances, we cannot say that the court did not exercise a sound discretion in refusing to give further time.

In the instructions to the jury the court, in effect, ruled that the case was one in which they were authorized to give exemplary damages. And in this there was no error. (Smith v. Sherwood, 2 Tex. R., 460; Graham v. Roder, 5 Id., 141.) The evidence showed a premeditated, willful trespass, committed under circumstances of aggravation and outrage which called for exemplary damages. The conduct of the defendants evinced a spirit of insubordination to la&. a determination to accomplish their purpose irrespective of the rights of the plaintiff and regardless of the consequences. It was characterized by such acts of lawless violence and oppression as rendered it a proper case for the giving of damages, not merely to compensate, but to punish. There were in evidence no extenuating circumstances. There can bo no pretense that the alleged promise of the. plaintiff' to give the defendant possession if he did not show him a title, could avail the defendant, either in justification of the trespass, or in mitigation of damages. The plaintiff was uuder no obligation to make such a promise, and if made, it was without consideration, and, consequently, without legal effect. — a mere nudum pactum.

It was competent to prove the circumstances which attended and gave character to the trespass. “As the jury, in an action of trespass, are not re- “ strained in their assessment of damages to the amount of the mere pecuniary “loss sustained by the plaintiff, but may award damages in respect to the mali-“cions conduct of the defendant and the degree of insult with which the trespass has been attended, the plaintiff is at liberty to give in evidence the circumstances which accompany and give character to the trespass. If the “defendant, while ho is an actual trespasser in the iffaintiffs house, or on his “land, commit any other trespass to the person of the plaintiff, orto the person “of his wife, children, or servants, then, although distinct and substantive ac“tions of trespass might have been maintained in respect of such trespasses, “or actions on the case might have been supported for the consequential dam-“ago in respect to the loss of service, or expense of cure, &c., yet such acts of “trespass and their consequences may be alleged and proved in aggravation “of the damages.” (2 Stark. Ev., 813.) The defendant’s conduct- and expressions, whilst he was in the act of committing the trespass, are always evidence to show his malice and the degree of insult offered to the plaintiff, although where they afford a distinct ground of action, upon which a recovery may be had in another suit, the jury are not to ward damages in respect of that distinct injury or its consequences, but only in respect of the principal trespass. (Id., 814.) Although the jury were not at liberty to give damages in this action for any injury sustained by the wife of the plaintiff for which she might sue. jointly with her husband, yet the conduct of the defendants towards her, while committing the trespass complained of, was admissible in evidence to show the motives by which they were actuated in committing the trespass, aud the insult and injury sustained by the plaintiff. It does not appear that the jury exceeded their province in estimating the damages.

To authorize the setting aside a verdict on the ground of excessive damages in a case like the present, they must bo so extravagant as to induce the suspicion of improper conduct. (1 Wash. C. C. E., 152.) There is nothing in tlie present case to induce such suspicion. *

Note 5G. — Kolb v. Bankhead, 18 T., 220,* Hoggland v. Cothren, 25 T., 345j Gordon v. Jones, 27 ff., C20.

There is no error in the judgment, and it is affirmed.

Judgment affirmed.  