(after stating the facts).— Counsel for plaintiff assigned three grounds of error: First, to the failure to excuse the juror, who was challenged; second, that the verdict was for nominal damages, while under the law and evidence in the case, there could be no verdict for nominal damages, and third, that the court erred in its instruction given at the instance of the respondents. Referring to the first error assigned, as to the failure to sustain the challenge to the juror, it is to be said that this point was not presented or saved by the motion for new trial; that it does not appear that the juror challenged was of the panel that was selected to try the case or whether he was peremptorily challenged by the respondents, so that this assignment of error cannot be considered. Although it is true that the contention of the respondents is correct, and that under section 3785, Revised Statutes 1899, the challenge should have been sustained, we cannot reverse for this error for the reasons above stated. We notice it, however, so that on a new trial, like error may not creep into the record. Section 3785 forbids the impaneling of a juror in the trial of any case who, among other disqualifications, “is of kin to either party to any such cause within the fourth degree of consanguinity or affinity.” The juror challenged stated that he was a second cousin to the wife of one of the defendants. That brought him within the degree of affinity, though not of consan-' *201guinity, prescribed by the statute. One is within the prescribed degree of affinity when the “relationship is by marriage between a husband and his wife’s blood relations, or between a wife and her husband’s blood relations” (Webster’s New International Dictionary, Ed. 1910), and this juror should have been excused. Whether or not he was of the panel that tried the case, we are not advised nor, as before stated, can we reverse for this error, as it is not within the grounds stated in the motion for a new trial.
The second and third points may properly be considered together. They both go to the assigned error in the instructions which resulted in the verdict for nominal damages. If those instructions were proper under the law and the facts in evidence in the case, the verdict cannot be successfully attacked. The jury must have understood by the instructions given at the instance of the defendant,- that the court threw upon the plaintiff here the burthen of establishing the amount of actual damages sustained by reason of the cutting and taking away of the timber, within the five years immediately prior to the institution of the action. That was error. The issues in the case are very simple and are well stated by counsel for the respondents to be, first, was plaintiff entitled to recover for this timber which was practically admitted by the respondents to have been cut and removed by them? That brought it down to a question of the amount and value of the timber cut. Second: that was clearly established by the evidence and made out a prima facie case for the plaintiff. For the court to instruct, in contravention to this prima facie case, that the burthen of proof was upon the plain tiff to show what was the value of the timber cut within the period of the statute, was practically shifting this burthen from the plaintiff to the defendants. It was for the defendants to show how much of the timber cut was cut prior to the 25th day of April, 1902; it was for the defendants to take the amount of cutting claimed to *202have been done prior to tbe beginning of tbe running of tbe statute, out of tbe statutory period and out of tbe whole amount of cutting proven to bave been done. When tbe total amount of timber wbicb bad been cut off of tbis land and tbe total value of that timber bad been proven, tbe burthen was on tbe defendant to exclude from this amount tbe quantity and value of that cut prior to tbe 25th of April, 1902. Any other rule deprived plaintiff of tbe benefit of tbe instructions the court gave at its instance and contradicted those instructions. Tbe court by these instructions wbicb it gave at tbe instance of defendants, shifted tbe burthen from defendants to tbe plaintiff. Tbis violated tbe rule that tbe burthen of showing exemptions by reason of tbe operation of tbe Statute of Limitations is always upon tbe party claiming tbe benefit of it, and that burthen rests there throughout all tbe incidents involved in tbe plea of tbe statute. In other words, tbe burthen is upon tbe defendants, who plead tbe statute, to bring themselves within tbe protection of tbe statute, not only as to tbe act but also as to what might be called tbe concomitant of tbe act. Defendants must show bow much of all tbe timber cut and removed, was cut and removed before tbe beginning of tbe operation of tbe statute, and tbis necessarily involved showing tbe value of that so cut, that its value might be deducted from tbe value of all cut and removed. Tbis was for defendants to do, not for plaintiff. When plaintiff proved tbe value of all cut and removed, it went as far as it was required to go. That, as we understand, is tbe law of tbis State as laid down in tbe cases of St. Louis Tow Co. v. Insurance Co., 52 Mo. 529; Combs v. Smith, 78 Mo. 32; Campbell v. Laclede Gas Co., 84 Mo. 352, 1. c. 375; Feurt, Ex’r. v. Ambrose, 34 Mo. App. 360, 1. c. 366; Knoche v. Whiteman, 86 Mo. App. 568, 1. c. 571.
To slightly paraphrase tbe language of Judge Ellison, in this last cited case, to meet tbe facts in tbis case, tbe essential point to be proven by tbe defendants *203under their plea of the statute, was, that admitting they had cut and removed timber from the lands, they claimed as to part of it, in fact the larger part of it, that it was done prior to the beginning of the five-years period. In that was involved showing how much was cut and removed prior to the five years, and in that was further involved, proof of its value. That was the evidence defendants were required to produce, and the burden of making that proof was on defendants.
To repeat, the effect of the instructions which the court gave at the instance of respondents was to shift the burthen of proof from the shoulders of the respondents to the shoulders of the plaintiff as to the amount and value of timber cut prior to April 1, 1902, while it was for the defendants, pleading the statute, to show, by the preponderance of the evidence, how much' of the timber cut fell outside of that period; that done, the plaintiff was entitled, not to nominal damages, but to damages for the difference between the value of all the timber cut and the value of that cut before April 1, 1902. If defendants failed to establish this by the preponderance of the evidence, that was their misfortune, and plaintiff would be entitled to a verdict for the value of all the timber proved to have been cut and converted. This error of shifting the burthen of proof appears throughout the three instructions given at the instance of defendants and is an error to the manifest prejudice and injury of the plaintiff. Apart from that, and the error in overruling the challenge to the juror, we find no error in the record. For the error in instructions, which we have pointed out, the judgment of the circuit court is reversed and the cause remanded.
All concur.