
    Isaac M. Woolley against Carter and Keen.
    1. In ail action of trespass for breaking the close and taking away goods and chattels, if the jury find for the plaintiff they must find the Value of the goods. They must, besides, add to the value of tho goods the incidental damages.
    2. When the trespass is once committed, and the goods taken, the party injured may stand upon his legal rights, and is not obliged to compromise, or take back the goods upon restoration offered.
    3. When the injured party has obtained a verdict, tho property is changed, and the right to the goods is vested in the defendant.
    
      4. The jury cannot assess damages for tho mere taking away the goods, and order the defendant to restore the goods.
    5. An offer to restore tho goods may be received in evidence in mitigation of damages.
    This was an action of trespass, brought by Woolley against Garter, for taking away goods, and was tried before his Honor Justice Rossell, at the Essex circuit. The circumstances of the case, as they appeared upon the trial, were briefly these: Garter had rented to Woolley, a store for one year, for the sum of seventy-five dollars; there was nothing said in the memorandum of the lease as to the time of payment of the rent, whether it was to be quarterly, or at the expiration of the year. At the expiration of the first quarter, Garter went to the store and demanded (of an agent of Woolley, who had been left in. charge *of the store for a few days, during Woolley’s absence from town) payment for a quarter’s rent, which he alleged to be due; this the agent refused to pay, insisting that there was no rent due. Carter then said he would distrain for it, and demanded of the agent the key of the store for that purpose, which was refused. Shortly after this, Carter, together with Keen, a constable, entered the store by a back door, took possession, and fastened the front door in such a manner that Woolley’s agent could not get in. The plaintiff, upon his return the next day, went to Carter’s, and demanded possession of the store, which Carter refused to give, unless he would pay the quarter’s rent claimed. Carter finally said he would not deliver the possession of the store that night, but that he would deliver it the next morning. Plaintiff replied, that if he did not give him possession that night, he would not have it at all; and thereupon Woolley instituted this action. In the progress of the trial, the defendant offered to prove, that, before the commencement of the suit, Carter(had offered to give up goods to the plaintiff, and release him from any further claim of rent if he would accept it, but that .the plaintiff refused. To this evidence the counsel for the plaintiff objected; but it was admitted by the judge. The value of the goods in the store, at the time Carter took possession, was proved to be between $500 and $1,000.
    The court charged the'jury, that if they believed from the evidence, that' the defendant, Carter, had bona fide offered to restore the possession of the goods and store of the plaintiff before this action was brought, that then they might estimate only the damages of the plaintiff for the trespass only, and consider the goods as still belonging to the plaintiff; but, on the contrary, if they did not believe from the evidence that such offer was made, that then they would estimate the value of the goods in the amount of the plaintiff’s damages.
    
      The jury found a verdict for two hundred dollars damages, only, upon the ground, that they considered, as they declared in court, the goods as still the property of the plaintiff. The ■counsel for the plaintiff prayed bills of exceptions to the before mentioned opinions of the court, and also to the •charge of the court, but which they waived, in order that they may have the benefit of the points involved therein on this motion for a new trial.
    
      *FLalsey, for plaintiff,
    now moved for a new trial, upon two grounds — 1. Because the Circuit Court admitted illegal evidence to go to the jury.
    2. Because the court charged the jury contrary to law.
    Upon the second point, he cited Gibbs v. Chase, 10 Mass. Rep. 128.
    
      Frelinghuysen, contra.
   Kirkpatrick, C. J.

In an action of trespass for breaking the close, and taking and carrying away the goods and chattels, if the jury find for the plaintiff, they must find the value of the goods; because no other action can be maintained afterwards, either for them or the value of them. They must, besides, add to the value of the goods the incidental damages, because the value is not always a compensation for the injury; as if one take from his neighbor the beasts of the plough in seed time, or the implements of husbandry in harvest, whereby he is prevented from sowing his seed or reaping his corn; it is obvious that the value of the thing taken is the smallest part of the injury.

When the trespass is once committed, and the goods taken, the party injured may stand upon his legal rights. He is not obliged to compromise, or to take back the goods upon restoration offered. His property having been wrested from him contrary to law, he has a right to abandon it, and look to the wrong doer for the value. When he has obtained a verdict for that value, the property is changed, the trespasser has the goods, and he the price; and it is not in the power of the jury, by .their verdict, to change this course of the law; they can neither make, nor order the restoration of the goods.

So far as goes to this ground of the complaint, therefore; to wit: the value of the goods, the evidence of an offer to restore,' objected to at the trial, would be incompetent evidence, because it could neither increase nor diminish the value.

But inasmuch as the verdict must be entire, and inasmuch as the incidental damages may be greatly increased or diminished, nay, may I not rather say, must wholly depend upon the circumstances of the case, the offer of restoration, in all cases of this kind, must be received as competent evidence for the consideration of the jury. If, in the cases that I have put, the wrong doer were to offer to restore the beasts or the implements taken, *at some short time,, and before material 'injury could have happened, and the-other party were to refuse, though the jury must give the value of the thing taken, that being matter of property and of absolute value, and being transferred to the trespasser by the verdict, yet they would estimate but very lightly the incidental damages arising principally from the obstinacy of the plaintiff himself.

In this case, therefore, I think the offer of restoration- was rightly received in evidence; but still, that the verdict is founded upon mistaken principles. The jury are to find the' issue and assess the damages; but they must assess the entire damages; they cannot assess part, and say he may recover back the goods for the residue. Let the rule be made absolute.

For», J.

This is an action for taking and carrying away a store of goods, chiefly articles of grocery, without measure, weight, or count, estimated to be worth between five hundrecl and a -thousand dollars, belonging to the plaintiff. The jury find the defendants guilty of the taking and carrying away, and assess the plaintiff's damages at $200; and inform the judge that the plaintiff is to have the goods. But a judgment, that the plaintiff recover the $200 damages, is-the utmost that can be rendered; it cannot be rendered for restitution of goods in this action; and that part of the verdict being void must remain unexecuted. The judgment will vest the right to the goods in the defendants, and take it away from the plaintiff, by giving him damages in lieu of the property. - In the case of Brown v. Watton, (Cro. Jac. 73.) it is clearly settled, that in trespass, after judgment, the property of the goods is changed, so as that they may not he seized again by the plaintiff.” In Adams v. Broughton (2 Str. 1078.) it is said, that- damages awarded to the plaintiff are in lieu of his property, and he can never afterward plead, that the goods are his. The defendants, as-wrong doers, will keep the goods if they please, (goods worth perhaps $800) on paying the $200, according to the verdict, as it now stands. This the jury never intended ; their intent was, the plaintiff should' have the damages and the goods both; an intent that cannot be executed. Therefore, I think, the verdict ought to be set aside, and a new trial granted,, without payment of costs.

New trial granted..  