Dissenting Opinion, Miller, J.

MR. JUSTICE MILLER (with whom concurred MR. JUSTICE FIELD) dissenting.

I find myself unable to concur with the majority of the court in the construction given by it, in the opinion just read, to the provisions of the act of March 3, 1887. This act was evidently intended to confer a new and important jurisdiction upon the Court of Claims, and a concurrent jurisdiction to a limited extent, in the same class of cases, upon the Circuit and District Courts of the United States. I can see no other possible object in that part of the statute which confers this new jurisdiction by the use of language which for the first time in the history of that court authorizes it to take cognizance of claims where the party would be entitled to redress, against the United States either in a court of law, equity or admiralty, if the United States were suable, than to make them suable in such cases. To hold that the distinct grant of power here provided for is controlled by the fact that this court has under former statutes decided that it did not then exist, is simply to nullify this new grant of power.

The manifest purpose of this new act was to confer power which the Court of Claims did not previously have, and to authorize it to take jurisdiction of a class of cases of which it had not cognizance before. To say that under such circumstances the new statute is to be crippled and rendered ineffectual in the only new feature which it has, in regard to the jurisdiction of that court, is in my mind a refusal to obey the law as made by Congress in the matter in which its power is undisputed.

It is clear to me that Congress intended by this act to enlarge very materially the right of suit against the United States, to facilitate this right by allowing suits to be brought in the Circuit and District Courts where the parties resided, and that it also designed to enlarge the remedy in the Court of Claims to meet all such cases in law, equity, and admiralty, against the United States, as would be cognizable in such courts against individuals.

I am authorized to say that MR. JUSTICE FIELD agrees with me in this dissent.

Opinion of the Court.

UNITED STATES v. DREW.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF LOUISIANA.

No. 1061. Argued January 28, 29, 1889.- Decided May 13, 1889.

United States v. Jones, ante, 1, affirmed and applied to this case.

THE case is stated in the opinion.

Mr. Solicitor General for plaintiff in error.

Mr. James L. Bradford for defendant in error.

MR. JUSTICE BRADLEY delivered the opinion of the court.

This is a suit in equity brought against the United States to establish the claim of the plaintiff to have land warrants or certificates of location for one thousand and fifteen acres of land made out and delivered to him by way of indemnity and satisfaction for a certain concession or grant of land made by the Spanish governor to one Francisco Adante, in 1788, the land itself having been surveyed as public land by the United States and disposed of to purchasers. The claim is made under the provisions of the act of June 2d, 1858, entitled "An act to provide for the location of certain confirmed private land claims of the State of Missouri, and for other purposes," 11 Stat. 294, the claim in question having been confirmed by act of Congress passed February 28, 1823, 3 Stat. 727. The suit is subject to the same objections which exist in relation to the suits of Carrie Jones and others, just disposed of, and the same decree must be made as in those cases.

The decree of the Circuit Court is reversed, and the cause remanded, with instructions to dismiss the original petition or bill.

MR. JUSTICE MILLER and MR. JUSTICE FIELD dissented, for the reasons stated in their dissent in United States v. Jones.

Opinion of the Court.

KENNON v. GILMER.

GILMER v. KENNON.

ERROR TO THE SUPREME COURT OF THE TERRITORY OF MONTANA.

Nos. 178, 203. Argued January 30, 31, 1889.- Decided May 13, 1889.

The denial of a change of venue, moved for on the affidavit of the party's agent to the state of public opinion in the county in which the action is brought, is not reviewable by this court on error to the Supreme Court of a Territory, even if a subject of appeal to that court from the trial court under the territorial statutes.

In an action against the proprietors of a stage coach, for an injury caused to a passenger by the misbehavior of one of the horses, evidence of subsequent similar misbehavior of the horse is admissible, in connection with evidence of his misbehavior at and before the time of the accident, as tending to prove a vicious disposition and fixed habit.

In assessing damages for a personal injury caused by negligence, the jury may rightly be instructed to take into consideration the plaintiff's bodily and mental pain and suffering, taken together, and necessarily resulting from the original injury.

In an action at law for a personal injury, in which damages have been assessed by a jury at an entire sum, the court is not authorized, upon a motion for a new trial. for excessive damages and for insufficiency of the evidence to justify the verdict, to enter an absolute judgment, according to its own estimate of the damages which the plaintiff ought to have recovered, for a less sum than assessed by the jury; and either party is entitled to a reversal of such a judgment by writ of error.

THE case is stated in the opinion.

Mr. Martin F. Morris for Kennon.

Mr. J. Hubley Ashton (with whom was Mr. Nathaniel Wilson on the brief) for Gilmer.

MR. JUSTICE GRAY delivered the opinion of the court.

This action was brought April 4, 1882, in a district court of the county of Deer Lodge and Territory of Montana, against Gilmer and others, common carriers of passengers for hire by stage coaches between the towns of Deer Lodge and Helena,

Opinion of the Court.

by Kennon, a passenger in one of those coaches, to recover damages for personal injuries sustained by him on June 30,

1879.

The complaint alleged that the defendants were guilty of negligence in failing to provide a safe and competent driver and safe and well broken horses, by reason of which, and of the negligence and mismanagement of their servants, the horses became unmanageable, broke the pole of the coach and took fright, so that it was apparently unsafe for the plaintiff to remain in the coach, and he jumped to the ground and in so doing broke his leg, and it became necessary to amputate it, whereby he sustained damages in the sum of $25,000, and was obliged to pay $750 for necessary medical and surgical expenses. The answer denied these allegations.

Before a jury had been called, the defendants moved for a change of venue, on the ground that an impartial trial could not be had in the county of Deer Lodge; and in support of the motion filed an affidavit of one Riddle, deposing "that he is agent of defendants in the above entitled cause; that he resides in the county of Deer Lodge, where said action is depending; that he is acquainted with and knows the general sentiments and opinions of the public in reference to said action and the parties thereto, and from his knowledge of such public opinion has reason to believe and does believe that the defendants cannot have a fair and impartial trial of said cause in the county of Deer Lodge; that the general sentiment of the public in said county is prejudicial to the defendants, as far as concerns said action; that one trial has already been had of said cause in this county, in which heavy damages were awarded to the plaintiff by the jury which tried said cause; that said verdict and the judgment rendered thereon have been generally canvassed and commented upon by the public in a manner favorable to the plaintiff and unfavorable to the defendants, and thereby has [been] produced a general prejudice against the defendants which cannot fail to have an influence on the second trial of said cause."

The court withheld its decision on the motion until a jury had been called and examined on their voir dire, and then denied it, and the defendants excepted to the denial.

Opinion of the Court.

At the trial, the defendant took exceptions to evidence introduced by the plaintiff, and to instructions given to the jury at his request. The jury returned a verdict for the plaintiff, assessing his damages at "the sum of $20,000 for general damages, and also the sum of $750 for medical expenses and surgical operations."

The defendants moved for a new trial, for excessive damages appearing to have been given under the influence of passion or prejudice, for insufficiency of the evidence to justify the verdict, and for errors of law in the rulings excepted to. The motion was denied, and judgment entered on the verdict; and the defendants appealed to the Supreme Court of the Territory, which ordered the judgment to be reduced to the sum of $10,750, and affirmed it for this amount. Its opinion is reported in 5 Montana, 257.

Writs of error were sued out by both parties, by the defendants on January 1, 1885, and by the plaintiff on May 1, 1885, both returnable at October term, 1885; and the plaintiff's writ of error was docketed first in this court.

The questions arising out of the exceptions taken by the defendants to the rulings of the inferior court present no difficulty.

By the statutes of the Territory, "the court may, on good cause shown, change the place of trial, when there is reason to believe that an impartial trial cannot be had therein;" and an appeal lies to the Supreme Court of the Territory from an order granting or refusing a new trial, or from an order granting or refusing to grant a change of venue. Montana Code of Civil Procedure of 1879, $$ 62, 408; Act of Amendment of February 23, 1881, § 7.

But the statutes of the Territory cannot enlarge the appellate jurisdiction of this court. The granting or denial of a change of venue, like the granting or refusal of a new trial, is a matter within the discretion of the court, not ordinarily reviewable by this court on writ of error. McFaul v. Ramsey, 20 How. 523; Kerr v. Clampitt, 95 U. S. 188; Railway Co. v. Heck, 102 U. S. 120. And the refusal to grant a change of venue on the mere affidavit of the defendants' agent to the