Welborn v. Spears

HáNDY, J., delivered the opinion of the court. The first objection taken to the judgment is, that the jury appear by the record to have been improperly sworn. [141] It appears that the jury were “ sworn a true verdict to give according to the evidence.” This was sufficient; and from the nature of the statement upon the point required to be made by the clerk in making up the record, it must be presumed that a due and formal oath was administered. Dyson v. State, 26 Miss. 362. If an insufficient oath was actually administered, it was the duty of the plaintiff in error to take exception to it at the time; and in the absence of such exception, it will be presumed to have been regularly administered. 2. It is objected that the court permitted the land-office book of entries to be offered in evidence to show title to the premises in question in the plaintiff; Upon general principles of evidence, the original book of entries was competent evidence, because it was the best evidence of which the matter was susceptible, to show that an actual entry had been made. It was the record of the entry provided by law; and if a copy of it is allowed by statute to be used as evidence, that furnishes no reason why the record itself should not be used. But the statute authorizing copies as evidence, clearly recognizes the sufficiency of the records themselves, by providing that authenticated copies may be admitted in evidence “ in all cases where the original could be admitted.” Hutch. Code, 864, art. 3. 3. Objection is made to the first instruction given at the instance of the plaintiff, which is as follows; — “ That the jury have nothing to do with the question whether the land was public or not, previous to the entry.” It clearly appeared by the evidence that the land had been entered at the land-office of the United States, and that the plaintiff claimed title in virtue thereof. This was prima facie evidence that it was public land of the United States previous to the entry, and there was no proof tending to show to the contrary. It was therefore immaterial for the jury to consider whether the land was public or not previous to the entry, for that was settled by the evidence; and so far as the rights of the parties were affected by the question, it was to be taken that the land was public land, and that the entry was proper and legal. 4. It is also objected that several of the instructions refer the [142] question of law to the jury whether the plaintiff had the title to the land or the right of possession. We do not think that the instructions referred to were calculated to have the effect suggested. No objection, on this ground, was made to them at the time when they were granted; and the verdict appears to be well justified by the evidence. Under such circumstances, the verdict will not be set aside, if correct under the law and facts of the case. 5. It is again objected, that the court improperly instructed the jury that it was a case in which they might give exemplary damages. There was nothing in the case to warrant that instruction. Hut it appears that exemplary damages were not given by the jury, and that they might have given even a larger amount of damages than was given, for the value of the property as proved by the witnesses. It cannot, therefore, be said that any prejudice was done to the defendant by this instruction, and its being granted is no ground for setting aside the verdict. Some other immaterial objections are made to the rulings of the court; but we do not consider them well founded. Upon the whole we consider the judgment correct, and it is affirmed.