May Term, 1846; that Fry, on his part, agreed to furnish Sarah board, 1855. MURRAY V. FRY. clothing, &c., and, at the end of the term, to furnish her a cow of the value of 12 dollars, a bed of the value of 20 dollars, and other household furniture of the value of 50 dollars, in consideration of her work and labor, &c. She then avers that she faithfully performed her part of the contract, but that Fry wholly failed to board and clothe her properly, or to deliver the articles of property, or any of them. There is a common count for work and labor; and the whole amount of damages claimed is 100 dollars. The cause was commenced before a magistrate. Verdict and judgment for 36 dollars and 12 cents. Fry appealed to the Circuit Court. On her affidavit that Bronson was not willing to act longer as her next friend, and petition for the appointment of a substitute, and that she be permitted to prosecute as a poor person, she was allowed by the Court so to prosecute, and Garver was substituted for Bronson as her next friend. The defendant, Fry, was permitted to make a material amendment to his defence, at his costs, "which," says the order, "is hereafter to be fixed as to the amount thereof." The cause was continued till the next term. At the next term there was a jury trial. Verdict and judgment for Miss Murray for 2 dollars and 20 cents. The Court adjudged the costs up to the time of his discharge against Bronson, amounting to 34 dollars. The evidence is not in the record, but a bill of exceptions gives the charge of the Court to the jury. The substance of the charge is, that the plaintiff was entitled to recover what her services were reasonably worth; that the defendant, Fry, was to be allowed for such clothing, schooling, and medical attendance as were sustained by the evidence; and that the jury should take into consideration the value of such a home for nearly three years as the plaintiff had enjoyed in the house of the defendant; her opportunity of acquiring instruction of defendant's wife in matters of housekeeping; and the advantages resulting to her from a residence in a respectable family, &c. 1855. MURRAY V. FRY. When the evidence is not in the record, the Court will May Term, go a great way to sustain the judgment of the Circuit Court. If, upon any probable state of facts, the instructions complained of would be correct, the existence of such facts will be presumed. But if the instructions are in themselves radically wrong, under any state of facts, directing the minds of the jury to an improper basis on which to place their verdict, it would be hazardous to presume that the jury had, notwithstanding such erroneous instructions, arrived at a correct conclusion. On the part of Miss Murray, the special contract was complete. When she had thus fulfilled and sued Fry for those articles, or their value, he could not set up the benefits which she had derived as mere incidents of the contract, in discharge of the specific duties which he had agreed to perform. His obligation consisted as well of the pleasant home, the board, the clothing, &c., which he had furnished, as of the other specified compensation which Miss Murray complains he failed and refused to furnish. She sued, in the first count, for what he failed to do. The instruction that the jury were to consider what had been performed under an entire contract, as in any respect a discharge of what remained to be done, was clearly erroneous. Of the same character was that part of the instruction which directs the jury to consider the respectability of the Fry family. That respectability was a very proper matter for Miss Murray's consideration before she entered into the special agreement to work for Fry. It well might, and very probably did, form a strong inducement for her to enter Fry's service on terms favorable to him. In this way he already had enjoyed the full benefit of his respectability. But, in no event, could it be law that this imaginary condition, called "family respectability," should be estimated by the jury as in any degree a compensation for her services. Such as it was, Miss Murray was entitled to its benefits in addition, and as incident to, the more substantial stipulations of the contract. Clothed with the authority of the Court as law, its tendency was to mislead the jury. Peyton v. Bowell, 1 Blackf. 244. May Term, 1855. SMITH The order for costs against Bronson was also erroneous. Fry's amendment was material, and threw on him such costs up to the time of the amendment as the Court might DOWNING. direct. R. S. 1843, c. 47, s. 171. But the statute does not extend the judicial discretion to taxing such costs against the opposite party. V. Per Curiam.-The judgment is reversed with costs. G. H. Voss, for the plaintiff. Friday, SMITH V. DOWNING. Possession of a chattel, pursuant to a purchase, is prima facie evidence of title. The levy of a distress warrant constitutes of itself a distraint. If, under the R. S. 1843, a chattel was levied upon by a distress for rent, when no rent was due, the owner was entitled to recover from the distrainor double the value of the chattel, though he had regained the possession. Action under s. 220, p. 830, R. S. 1843, to recover double the value of a distress. Held, that the averment that no rent was due was of the substance of the declaration. Held, also, that the burden of proving that averment was on the plaintiff. Plenary proof of a negative averment is not, in such a case, necessary; it being sufficient to adduce such evidence, as, in the absence of counter evidence, affords ground for presuming the averment to be true. In trover, for the unlawful seizure of goods, the fact that the plaintiff may have reclaimed them, does not go in bar of the action, but merely in mitigation of damages. Trover, for the unlawful seizure of goods. It was proved on the trial that the goods had been restored to the owner, and it was not shown that the plaintiff had suffered any damages from the seizure. Judgment having been rendered for the defendant, held, that the plaintiff was not entitled to a new trial. ERROR to the Vigo Circuit Court. DAVISON, J.-Trespass on the case. The declaration contains three counts. The first charges that Smith was May Term, 1855. SMITH V. the owner of one thousand bushels of corn worth 200 dollars, in certain pens situate on land in Vigo county, viz., the south-east quarter of section twenty-four, in township thirteen north, of range nine west; and that Downing dis- DOWNING. trained said corn for rent pretended to be due to him on said land, when in truth no rent was due. The second count varies from the first, in this only: it alleges that Downing took the corn from the land above described, by unlawful distress, for the rent due him on and for the south-east quarter of section twenty-four, township thirteen north, of range seven west, when, &c. These counts are founded on section 220, c. 45, R. S. 1843, which provides that, "the owner," &c., "of any property distrained for rent pretended to be due, when in truth no rent was due, may, by an action of trespass on the case, recover against the person so distraining, or his personal representatives, double the value of the goods so distrained." The third count is in trover for the corn. Plea, not guilty. The Court tried the cause and found for the defendant. New trial refused and judgment. One Lindley, it appeared, was the owner of a tract of land in said county, described as the south-west quarter of section twenty-four, in township thirteen north, of range nine west, which, for the year 1848, he had leased to one Hill. Within that year, the leased premises were sold on execution to Downing, the present defendant. In April, 1849, Lindley distrained the corn in dispute for the rent due from Hill for the year 1848. It was sold as a distress, and bought by one Salmon Wright, who afterwards sold it to Smith, the plaintiff. After this, in June, 1849, Downing filed his affidavit before a justice, alleging that Hill was indebted to him 300 dollars for the rent of the same land for the year 1848, and thereupon procured a distress warrant, which, on the 6th of August, 1849, was levied on said corn. This levy was made while Smith was in the act of hauling it away, and, on account of said levy, his wagons were stopped. There was some evidence tending to prove that a trial of the right of property, relative to the corn, was had between Smith and Downing, but how it resulted 1855. May Term, is not shown. After the levy, Smith, in the language of a witness, "got the corn," which was at that time worth 200 dollars. It was proved that Lindley never surrendered DOWNING. possession of the land to Downing. SMITH V. When the distress warrant was levied, Smith, under a sale to himself, was in full possession of the corn. This was sufficient, prima facie, to establish his right of property. That he re-possessed it after the levy is not important, because the levy itself constituted a distraint. And if, at the time it was made, "no rent was in truth due," the plaintiff, under the first and second counts, was entitled to recover double the value of the goods distrained. But the main point of inquiry is, does the evidence prove that no rent was due from Hill to the defendant? This was, no doubt, a material averment in the counts, without which they would have been defective in substance. And though that averment is negative in its character, still the plaintiff grounds his action upon it, and it being thus an essential element in his case, the burden of proof rested on him. 1 Greenl. Ev., s. 78. It is true, plenary proof on the part of the plaintiff, in cases like the present, is not required. It has been "considered sufficient if he offer such evidence as, in the absence of counter testimony, would afford ground for presuming the allegation to be true." Has "such evidence” been adduced in the case before us? The Court below, sitting as a jury, seems to have answered this question negatively, and we are not prepared to say that its conclusion is not correct. There is nothing in the circumstance that the premises were never surrendered by Lindley to the defendant, inconsistent with his title to all the rent that accrued after he bought them at sheriff's sale. The record, in our opinion, contains no evidence that allows the inference that no rent was due from Hill to the defendant. It remains to be inquired, whether the plaintiff was entitled to recover upon the count in trover? The evidence fully sustains his title to the corn. If it was seized and taken from his possession, the mere fact that he afterwards |