This action was before this court last year on report, which stipulated that, “ if the city is liable for the trespass,” — the removal of the fence, etc., — “ the action to stand for trial.” The court then determined that the commissioner who removed the plaintiff’s fence was acting as the agent of the city, by its directions, and that the rule of respondeat superior was applicable. Woodcock v. Calais, 66 Maine, 234.
The case went back to trial, the jury returned a verdict for the plaintiff, assessing the damages at $150 ; and now the defendants bring the case before us on motion and exceptions.
I. The defendants contend that the exclusion of the record of *246an attempted location was erroneous. Whether it was admissible or not we have no means of knowing, for the case contains no copy thereof. We conclude, therefore, that the defendants do not rely upon that point.
II. The instruction was not, as contended by the defendants, that the burden of proof was upon the defendants to justify the acts of the commissioner; but a fair construction of the instruction is that the. plaintiff, having made out a prima facie case by possession, that evidence, if not rebutted by the defendants, would be sufficient to maintain the plaintiff’s case; and not that the burden of proof changed. Small v. Clewley, 62 Maine, 155.
We think the instruction complained of, relating to damages, whereby the jury were allowed to consider the taking and carrying away the stone and earth an element, was correct. As already seen, the commissioner was the agent of the city, acting under its express directions, and for acts done, by him in the course of his employment and within the scope of his authority, the city is liable. P. & R. R. R. Co. v. Derby, 14 How. 468, 486.
The case shows that the plaintiff built her fence by first erecting a wall of split stone, some two and one-half feet high on the side next to the street but filled with earth on the side next to the lot, and upon the vwall placed a light wooden fence. The wall thus constituted a part of the fence within a fair construction of the special order under which the commissioner was acting ; and his removing the wall, earth and wooden fence, was done in the course of his employment and the city must respond.
Motion: It is urged that the verdict is against evidence because it is alleged that Smith was not sworn. The answer is that the defendants admitted, in the reported case of last year, that he was “ duly elected and qualified.” Woodcock v. Calais, supra. Holley v. Young, ante, 215. Again he testified he was sworn, which testimony was legitimate in the absence of any record evidence. But whether sworn or not is immaterial in this case ; for if not sworn he was the commissioner de facto, and that is sufficient.
The testimony is conflicting in relation to the line of the street. The jury saw and heard the witnesses and viewed the locus. From what they saw and heard they rendered a verdict for the *247plaintiff, which is founded on evidence and the law applicable thereto. The facilities of the jury for ascertaining the truth were superior to ours and we cannot say that the verdict is wrong.
Motion and exceptions overruled.
Appleton, C. J., Danforth, Peters and Libbey, JJ., concurred.