#### OLIVER WYLIE, Chairman, &g. vs JESSE SMITHERMAN, Adm’r. &c.

The presumption is that a person, who is entitled to a deed, has it in his possession, until the contrary be shown ; and the contrary may be shewn by the affidavit of the person so entitled.

In actions of trespass for the destruction of property, the proper measure of damages is the value of the property destroyed, unless the trespass is committed wantonly or maliciously, when the jury may, if they think proper, give vindiotive damages, but that is a matter for them to decide aud not for the Court.

The case of *Harper*v. *Hancock,*6 Ire. 124, cited and approved.

Appeal from the Superior Court of Law of Richmond *County, at the Spring term,*1848, his Honor Judge Bailev presiding.

This was an action of trespass *vi et armis quare clau-sum fregit,*brought by the plaintiff, as the Chairman of the County Court of Montgomery, to recover damages *237for the burning of the Court House of that County by the defendant’s intestate. Pleas, the general issue, libe-*rum tenementum,*and licence.

Upon the trial, it was proved that the Court House of Montgomery County was burnt on the 31st day of March. 1843, between the hours of 9 and 12 o’clock at night, and testimony was then given tending to show that the act was done, or was procured to be done, by the defendant’s intestate. The plaintiff then introduced a properlyeertifíed copy of a private act of the General Assembly, passed in the year 1815, for the purpose of removing the Court House and other public buildings from the town of Henderson to some more suitable place. To that end certain persons were appointed Commissioners with authority to them, or a majority of them, to purchase fifty acres of land at the place, which they might select, and they were then directed to lay off the land, so purchased, into town lots and make sale of them at public auction, retaining two acres for the use of the County, upon which it was made their duty to have a Court House and other necessary public buildings erected: and they, or a majority of them, were further directed to make title in fee simple to the purchasers of the lots: and to execute a conveyance to the Chairman of the County Court and his successors forever for the two acres reserved for *the*use of the public. Mr. Deberry was then called as a witness for the plaintiff and testified, that he was one of the commissioners appointed in the act aforesaid, that the duties therein enjoined were performed, among which was that of causing to be erected the Court House for the burning of which this action was brought, and that the commissioners *then executed*a deed for the land, upon which it was built, to Joseph Parsons, who was then the acting Chairman of the County Court. He testified further, that this deed was duly proved and registered, and then delivered to John B. Martin, the then Clerk of the County Court, to be filed among the records of his office, but whether Jo-*238Séph Parsons' knew of thd deed or *not,*the. witness could not tell. He stated that it-was proved in-the.year 1817, but ‘at what’ terrh of -the Court in-that year h.e ¡could .not l'ecollect; ’ Another witness testified, that’he¡succeeded Mr'. Martin ás Clerk of the. County. Court-, and that in the yéar 1830 or<1840, he saw a paper in, the office endorsed “A deed-from Davidson and others, commissioners, to Joseph Parsons, Chairman,” and he thought that he had read it, but he could not state its contents. The. plaintiff then proposed to prove by Mr. Deberry the contents of the said deed, but the testimony was objected to, on-the ground that the Joss of it had not been sufficiently accounted for, the presumption being that it was in the possession of Joseph Parsons or of the present plaintiff; and further that- there was no affidavit by the plaintiff of- its loss or destruction. The objection was over-ruled and the testimony received. It was then proved that the present plaintiff was appointed Chairman of the County Court in 1841, and a record made of it, but this record, together with all the other records of the office, was destroyed in the conflagration of. the Court House. A witness called for that purpose testified, that the Court House could not have been .re built for. less than ono thousand dollars, though it would not have sold for more than two hundred-dollars. .Much more testimony was 'givén, and several objections raised,-which it is unnecessary to state, as they are not adverted to in the opinion of this Court-. - •

The defendant’s counsel contended, that the plaintiff -Could not recover at all, but if he could, the utmost ex-tent of -his damages would be two. hundred dollars. The Court charged the jury, that,: if they found a verdict for the plaintiff “ the measure; of his damage, was.not that ■ for which Court House would have sold, but the amount 'it-would have taken, to.-re-build such a Court House, at ■that -place as was destroyed.” The jury returned a verdict for the plaintiff, assessing his damages to twelve *239hundred and fifty dollars, A motion for a new trial was made and over-ruled, and from the judgment given against him, the defendant appealed.

*Strange,*for the plaintiff.

*Mendenhall*and *Iredell,*for the defendant.

Battle, J.

The objection to the testimony of the witness, who was offered to prove the contents of the deed from the commissioners to Joseph Parsons, was well founded and ought to have been sustained. The deed may possibly have been, and probably was, among the records of the County Court, and was destroyed by the fire, which consumed the Court House. Such however was not distinctly and sufficiently proved, and as the presumption was, that the person, who was entitled to the deed, had it in his possession, he ought to have rebutted the presumption by proving that such was not the fact, which 'he was at liberty to have done by his own affidavit. In the case of *Harper*v. *Hancock,*5 Ire. 124, the rule is so laid down, and the reasons, upon which it is founded, are fully stated.. Nor is this affected by the act of 1846, ch. 68 : for that only makes a registered copy of a deed evidence, without requiring the party, who is entitled to the original, to account for its non-production, but contains no provisions for proving the contents of the original deed by parol testimony. The charge of the court upon the question of damages was also erroneous. The proper measure in actions of this kind is the real value of the property destroyed, unless the trespass is committed wantonly or maliciously, when the jury may, if they think proper, give vindictive damages. *Duncan*v. *Stalcup,*1 Dev. & Bat. Rep. 440. It may be that this was a proper case for such damages, but whether they should have been given or not, was a question which ought *240to have been submitted with proper instructions to the jury-

The judgment of the Superior Court must be reversed and a new trial granted.

Per Curiam. Judgment reversed.