must prove that he is a holder for value. The mere possession of the paper under such circumstances is not enough: Smith v. Sac County, 11 Wall. 139. Here the actual illegality of the paper was established. It was incumbent, therefore, on the plaintiff to show that he occupied the position of a bona fide holder before he could recover."

It cannot be said that the authorities are uniform or harmonious upon the questions involved in this case. But we are of the opinion that the authorities cited contain the better and sounder reason on the questions involved. It might frequently occur that a defendant in such a case would be powerless to allege or prove knowledge in the plaintiff of the fraud which tainted the note sued on, at its inception this knowledge being peculiarly within the breast and possession of the plaintiff-whereas it would very rarely be a hardship upon an indorsee to require him to show his bona fides by proving the circumstances and facts under which he became the owner and holder of the paper on which he sues. From the foregoing authorities and consideration we are of the opinion that the allegation of fraud in the inception of the note sued on, contained in the answer, contained a prima facie defense, and placed the burden of proving bona fides, which includes a want of knowledge of the fraud alleged, upon the plaintiff in this case; and, if so, the burden of pleading such want of knowledge was upon him, necessarily. It therefore follows 577 that the action of the trial court in rendering judgment on the pleadings was error.

The judgment is reversed and the cause remanded for trial.

HARWOOD and DE WITT, JJ., concurred.

NEGOTIABLE INSTRUMENTS-FRAUD IN INCEPTION AS AFFECTING BONA FIDE INDORSEE.-One who signs an instrument which he knows to be a promissory note of some kind, relying upon the statements of the party opposed to him in the contract as to its nature, and without informing him. self as to its contents, is guilty of such negligence as will preclude him from availing himself in an action on the note by a bona fide indorsee for value, of the defense that his signature was fraudulently obtained: Ward v. Johnson, 51 Minn. 480; 38 Am. St. Rep. 515, and note. This question is fully discussed in the extended notes to Willard v. Nelson, 37 Am. St. Rep. 458, and Bedell v. Herring, 11 Am. St. Rep. 309.

TRESPASS BY OFFICER IN EXECUTION OF WRIT-PLAINTIFF'S LIABILITY.— One who places in the hands of an officer a valid writ, without directions as to the manner of its service, is not liable for torts committed by the officer in the execution of the writ, except where he, with knowledge of the facts, advises an abuse of the process, such as a trespass against the person or property of another, or subsequently ratifies such unlawful act. In such a case he will be regarded as a wrongdoer from the beginning. TRESPASS-MEASURE OF DAMAGES.-In an action for trespass upon personal property compensation for mental suffering of the injured party is a legitimate element of damage if the unlawful act was inspired by fraud, malice, or like motives; but if the wrong consisted in the taking or destruction of personal property, without fraud, malice, or other aggra vating circumstances the measure of damages is compensation for the plaintiff's loss, which is, as a rule, the value of the property, with such incidental damage as is shown to be the natural and proximate result of the act charged.

Slabaugh, Lane & Rush, and Lake, Hamilton & Maxwell, for the appellant.

John L. Carr and Frank A. Parker, for the appellee.

61 POST, J. This is a petition in error from a judgment of the district court of Douglas county. The defendant in error, who was plaintiff below, filed in the district court the following petition:

"MAGGIE MACE, Plaintiff,

v.

THOMAS MURRAY, Defendant.

PETITION.

"The plaintiff complains of the defendant for that on the

24th day of December, 1889, and at divers other days and times before the commencement of this suit, the defendant unlawfully and with force broke and entered a certain dwelling-house of the plaintiff, situated on lot 2, block 145, in the city of Omaha, in Douglas county, Nebraska, and then and there made a great noise and disturbance therein, and staid and continued to make such noise and disturbance for two hours then next following, and then and there took and carried from said house all of the defendant's furniture and household utensils, consisting of four spring bedsteads, four mattresses, three commodes, three bedroom tables, three stoves, one lounge, ten chairs, three trunks, a large quantity of bedding, dishes, and other things, and forcibly and wantonly threw said furniture down a steep embankment into the public street and broke and injured said property, to the value of $75. By means of which said several premises said plaintiff was, during all the time aforesaid, greatly disturbed, the property of the plaintiff of the value of $75 was destroyed, and the plaintiff was 62 prevented from carrying on and transacting her lawful and necessary affairs and business, and the plaintiff became sick, ill, and disordered, and so continued for the space of one week, and the plaintiff suffered great humiliation, anguish, and distress of mind, and has continued to do so up to the present time, to her damage in the sum of $5,000.

"2. The plaintiff complains of the defendant for, that, on the 24th of December, 1889, the defendant unlawfully and with force broke and entered a certain dwelling-house of the plaintiff situated on lot 2, block 145, in the city of Omaha, Douglas county, Nebraska, and then and there ejected and expelled the plaintiff and her family from the possession, use, and occupation, and has kept them so ejected until the present time, whereby the plaintiff, during all said time, was deprived of the benefit of said dwelling-house, to her damage in the sum of $50.

"3. The plaintiff complains of the defendant for, that, on or about the 24th day of December, 1889, the said defendant seized and forcibly took and carried away the following described goods, chattels, and effects, the property of the plaintiff, to wit: one white bedspread, four white sheets, one carpet, one bureau, one red carpet, one old axe, of the value of $25, and has converted the same to his own use, and kept

plaintiff from the possession of said property until the present time, to the damage of the plaintiff in the sum of $25. "The plaintiff therefore prays judgment against the defendant for the sum of $5,150 and costs of suit. "MAGGIE MACE,

The answer was a general denial.

"Plaintiff."

The facts disclosed by the evidence are as follows: In the month of June, 1889, Mrs. Mace, the plaintiff below, leased and entered into possession of a house owned by Murray, the defendant below. On the twenty-ninth day of November following, Murray recovered judgment in a proceeding 63 for the forcible detention of said property before a justice of the peace for Douglas county, and an order for a writ of restitution. On the second and tenth days of December writs of restitution were issued, which were both returned without having been served. On the twenty-fourth day of December a third writ was issued and placed in the hands of one Small, a constable, for service. On the day last named said Small, armed with the writ of restitution, visited the premises in question for the purpose of placing Murray in possession, but Mrs. Mace locked the door and refused him permission to enter. About one hour later Murray and the constable visited the premises in the absence of Mrs. Mace, and entering the house through a back door proceeded to remove the property found therein, and which acts are the wrongs alleged in the foregoing petition.

It is argued, first, that Murray incurred no liability for his acts in the execution of the writ, for the reason that he was merely called upon to assist the officer, and that whatever was done by him in the premises was under the direction and in obedience to the command of the latter. The rule we regard as settled that one who places in the hands of an officer a valid writ, without directions as to the manner of its service, will not be liable for torts committed by the latter while engaged in the execution thereof; but where he, with knowledge of the facts, advises an abuse or the process of the court, such as a trespass against the person or property of another, he will be regarded as a wrongdoer from the beginning: Taylor v. Ryan, 15 Neb. 573; Hyde v. Cooper, 26 Vt. 552; Cooley on Torts, 129. In this instance Murray was not satisfied apparently to trust the officer, but voluntarily assisted in the removal of the property, and now justifies

their joint action on the ground that it was necessary and proper in the execution of the writ. He is, therefore, clearly within the rule above stated, provided there was an abuse of the process, a question which will now be considered.

64 The evidence of the plaintiff below tends to prove that Murray and the constable tore the carpets from the floor and stairs without removing the tacks, and that the windowshades were torn down without removing the fixtures. It is shown, also, that there were two or three dishes broken, and that a few knives and forks, a breastpin, and four sheets were lost. It may also be inferred from the plaintiff's evidence that the property, when removed from the house, was deposited on the bare ground and thereby slightly soiled. This evidence was contradicted by the witnesses for the defendant below, but that issue appears to have been settled by the verdict of the jury in favor of the plaintiff, and with that finding we must be content in this proceeding. In the leading case of Jenner v. Joliffe, 9 Johns. 384, the rule is thus stated: "And where the plaintiff, upon a process of attachment, causes an officer so to conduct himself as to misbehave in the execution of his office and produce the loss or destruction of goods in his custody, the party has his election either to sue the principal or the officer." So far as this branch of the case is concerned, we agree with the views expressed in the instructions of the district court.

The record presents for consideration a further question, the solution of which is attended with greater difficulty. It is disclosed by an examination of the petition that the amount claimed for the destruction of property is seventy-five dollars, and for property lost and carried away twenty-five dollars. While the evidence tends to sustain the foregoing allegation with respect to damage by destruction of property the highest estimate placed upon property lost is twelve dollars. It is apparent, therefore, from the verdict for sixteen hundred and twenty-three dollars and ninety cents, that it is based substantially upon the claim for "humilia tion, anguish, and distress of mind." In this connection it should be observed that the proceeding for the forcible detention of the property is apparently regular and the writ of restitution in due form. Indeed, no claim was made at the trial. 65 on the ground of a want of jurisdiction or abuse of process other than as above stated, viz., that the action of the defendant below was "unlawful and with force." It must be as