
    Ameen A. Shibley vs. John B. Gendron.
    PROVIDENCE
    DECEMBER 22, 1903.
    Present: Stiness, C: J., -Tillinghast and Dubois, JJ.
    (1) Trespass. Pleading. Burden of Proof.
    
    The burden of proof is upon the defendant in an action of trespass, where he justifies the act upon the ground that the goods attached were those of a third party.
    (2) Trespass. Measure of Damages.
    
    In an action of trespass the mere value of the articles taken is not the measure of damages.
    Trespass de bonis asportatis.
    
    Heard on petition of defendant for new trial, and denied.
    
      Samuel W. K. Allen, for plaintiff.
    
      Alfred S. Johnson, for defendant.
   Per Curiam.

The evidence being contradictory, it was the province of the jury to pass upon the credibility of the witnesses and the weight of their testimony; and it not clearly appearing that they were either mistaken or improperly influenced, the .verdict will not be disturbed.

The presiding justice did not err in the rulings and charge complained of; the burden of proof was upon the defendant to justify the trespass under his plea.

The court cannot say that the damages awarded were excessive. In an action of this kind the mere value of the articles taken is not the measure of the damages. Von Storch v. Winslow, 13 R. I. 23.  