Opinion of the Court. 4. VERDICT IN DEBT-the proper form thereof. In an action of debt to recover rent due upon a lease, the jury returned a verdict for the plaintiff for a given sum, specifying neither debt nor damages, and the clerk improperly recorded it as a verdict for damages; it should have been treated as a finding for the debt. 5. SAME—whether such improper entry of the verdict is ground of reversal. But, in order to avoid the granting of a new trial on the motion of the plaintiff, on the ground that the verdict was too small, the defendant consented that it should be raised to a larger sum; and, the judgment being so entered, the act of the clerk in entering the original verdict in damages was not considered a sufficient reason for reversing the judgment. APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding. The opinion of the court contains a sufficient statement of the case. Mr. GEORGE W. THOMPSON, for the appellant. Mr. JOSHUA C. KNICKERBOCKER and Messrs. RUNYAN & AVERY, for the appellee. Mr. JUSTICE LAWRENCE delivered the opinion of the Court: This was an action brought by James against Morey, for rent. The defendant was in the employment of plaintiff as clerk, and the plaintiff promised him, if he would marry within a year, to give him one thousand dollars. He did marry, and the plaintiff gave his wife a lot worth five hundred dollars. He allowed the rent to run until the sum of $637.50 had accrued, and then credited himself on the books of plaintiff with $500, as the balance of the one thousand. Both parties testified, and it is at this point that the substantial difference between them begins. The defendant swore that this credit of $500 was talked over between the plaintiff and himself in the office, and the plaintiff assented to the credit. This is denied by the plaintiff, who testifies there was no such conversation, and that he did not know of the entry for more than a year after it was made. On this point the jury seem 23-44TH ILL. Opinion of the Court. to have given credence to the defendant, and the matter was within their exclusive province. It is urged, however, that this promise to pay the thousand dollars was within the statute of frauds. The only mode in which the plaintiff sought to raise this question was by a motion to exclude all the evidence upon that subject. This motion was properly refused, because, even if the promise had been within the statute, its complete performance, if the testimony of the defendant was true, made the statute inapplicable. The testimony of the defendant as to the express authority given him by the plaintiff to enter the credit of $500 may have been true or false, but the court had no right to determine it was false, as it would have done by allowing the plaintiff's motion to suppress all testimony relating to the promise. If this testimony of defendant was true, the statute of frauds had nothing to do with the case. The thousand dollars, according to this evidence, had been voluntarily paid, and could not be recovered back, whether the promise was originally within the statute or not. In order to present this question, the plaintiff should have asked the court to instruct the jury that they were to disregard all evidence touching the promise to pay the thousand dollars, unless they believed from the testimony that the plaintiff had authorized the defendant to enter the credit of $500, or had assented to such entry after it was made, and they were not to allow the $500 merely because it had been promised. As the record stands, the question raised in the argument is not before us, and we do not decide whether the promise to pay the thousand dollars was one which could have been enforced by defendant or not. The jury found a verdict for $26.48, which was admitted to be insufficient, and the court, on the motion for a new trial, held, that the motion would be allowed, unless the defendant would consent that the verdict should be raised to $144.54, the amount due by the lease. The defendant consented, and the judgment was so entered. It was decided by this court in the case of Carr v. Minor, 42 Ill. 179, that this was not error. An objection is also taken to the form of the verdict, which, as returned by the jury, was for $26.48 for the plaintiff, specifying neither debt nor damages. The clerk improperly recorded it' as a verdict for damages, but it should have been treated as a finding for the debt. A judgment was entered for the increased amount, and we do not consider the act of the clerk in entering the original verdict in damages, a sufficient reason for reversing the judgment. ABRAM L. SMALL V. Judgment affirmed. CYRUS BRAINARD. INSTRUCTIONS—should not assume facts as proven. In an action of trespass, an instruction to the jury that the plaintiff was "entitled to recover all damages proved to have been sustained by him on account of the trespasses committed by the defendant on the plaintiff's premises as alleged in the declaration," was held to be erroneous, because it assumed the defendant committed the trespasses, and that the only question before the jury was the amount of damages. APPEAL from the Circuit Court of Kankakee county; the Hon. CHARLES R. STARR, Judge, presiding. This was an action of trespass brought in the court below by Cyrus Brainard, against Abram L. Small, and a trial resulted in a verdict and judgment for the plaintiff. The defendant thereupon appealed to this court. Mr. H. LORING and Mr. T. P. BONFIELD, for the appellant. Mr. M. B. LOOMIS, for the appellee. Mr. JUSTICE LAWRENCE delivered the opinion of the Court: This was an action of trespass brought for digging a ditch and causing the water to overflow upon the plaintiff's land. Syllabus. The defendant pleaded not guilty and several special pleas. On the trial the court gave for the plaintiff the following instruction: "The court instructs the jury for plaintiff, that he is entitled to recover in this action all damages proved to have been sustained by him on account of the trespasses committed by defendant on plaintiff's premises, as alleged in the declaration in this cause." The appellant objects to this instruction, that it assumes the defendant committed the trespasses, and that the only question before the jury was the amount of damages. The objection is well taken, and we cannot say, on an examination of the entire record, that the jury were not misled. We are the more inclined to reverse the judgment on account of this instruction, because we do not find in the evidence a very good basis for the estimate of the damages, $150, found by the jury. Witnesses give it as their opinion that the plaintiff's land was injured to that extent, but they do not state wherein the injury to that degree consists, nor the facts upon which their opinion is founded. The judgment is reversed and the cause remanded. Judgment reversed. ASAHEL H. WARNER v. SAMUEL H. OSTRANDER. 1. MEASURE OF DAMAGES in trespass against an officer for levying upon and selling the property of plaintiff under execution against another. While it is true, as a general rule, that the value of property wrongfully sold on execution is the measure of damages sustained by the owner, still, that is not true except in cases where the purchaser has obtained the property. 2. A rule of more general application is, that in cases not requiring punitive damages, the loss actually sustained is the true measure. 3. So, where the property of the plaintiff was levied upon and sold under an execution against another person, but remained in the possession of the owner, Opinion of the Court. who sold it and received the benefit of the proceeds beyond the amount for which it had been sold on the execution, there being no circumstances connected with the levy and sale calling for punitive damages, the proper measure of damages in an action of trespass by the owner against the officer would be the actual damage sustained,—that is, the amount for which the property was sold on the execution. APPEAL from the Circuit Court of Kankakee county; the Hon. CHARLES R. STARR, Judge, presiding. The opinion states the case. Mr. STEPHEN R. MOORE, for the appellant. Mr. H. LORING and Mr. C. A. LAKE, for the appellee. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court: This was an action of trespass, brought by Samuel Ostrander against Asahel H. Warner, for levying upon and selling a quantity of personal property, under an execution against Peter Ostrander. There was evidence tending to prove that the property, which consisted of grain and other farm produce, had been raised by Peter Ostrander for appellee, and, on the other side, it was urged, as a defense, that the evidence showed that the ownership in appellee was only colorable, and was claimed by him to prevent its sale for the payment of the debts of Peter Ostrander. The jury found that the property delonged to appellee, and assessed the damages against appellant at the sum of $500. A motion for a new trial was overruled, and a judgment was rendered on the verdict, to reverse which this appeal is prosecuted. It is, among other assignments of error, insisted, that the seventh instruction given for appellee misled the jury. It is this: "If the jury believe, from the evidence, that the personal property in question was, at the time of the levy and sale thereof, the property of plaintiff, and that the defendant is guilty of the trespass thereto as charged by plaintiff, then, as |