
    Hanmer vs. Wilsey.
    In trespass de bonis asportatis possession is enough to sustain the action.
    It is no defence in such action to show property out oí the plaintiff, in a strangerand it was accordingly held in this case, that evidence that the plaintiff had given a mortgage »f the property which had become forfeited, was inadmissible, without showing a connect! on between the defendant and the mortgagee.
    The filing of a declaration,,and the entry of a rule to plead, is such a commencement of the suit as deprives the defendant of the right to give in evidence, in mitigation of damages, the return of the property before suit brought; although a copy of the declaration be not served until after a return of the property.
    
      A return of property illegally taken, though accepted by the owner, is no bar ]to an action, the return and acceptance being available only in mitigation of damages.
    But, even for that purpos'e, it is not admissible to show that property illegally taken was subsequently applied, without the assent of the owner, in satisfaction of a valid execution against him.
    Error from the Tompkins common pleas. Wilsey sued Hanmer in trespass. for taking a horse by virtue of an attachment illegally issued by a jus tice of the peace. Discovering the error in the proceeding, the constable, who had taken the horse by the direction of Hanmer from the stable of Wilsey, returned him to the stable and gave Wilsey notice of the fact, who said he would not receive the horse. Hanmer then obtained an attachment to be duly issued, by virtue of which the horse was taken; and judgment having been obtained in the suit thus commenced by attachment, the horse was sold by virtue of an execution issued on such judgment, and bought in by Hanmer for the sum of $17-50. This suit was commenced by the filing of a declaration previous to the return of the horse to the stable of the plaintiff, but a copy of the declaration was not served upon the defendant until after the return of the horse. On the trial, the defendant offered to prove that the plaintiff had mortgaged the horse to one Colgrove, that the mortgage had become forfeited by the non-payment of a part of the mortgage moneys previous to seizure under the attachment, and that Colgrove, as well as [92] the plaintiff, had commenced a suit against the defendant for the taking of the horse; which evidence was objected to by the plaintiff and overruled by the court, who charged the jury that if they could find that proceedings had been commenced in this suit by the filing of a declaration and entry of a rule to plead, previous to the return of the horse to the stable of the plaintiff, they ought not to take such a return into consideration in mitigation of damages; and if the plaintiff was entitled to recover, the true rule of damages was the value of the property. The jury found a verdict for the plaintiff with $72 damages, on which judgment was entered. The defendant having excepted to the decision and charge of the court, sued out a writ of error.
    
      J. A. Spencer, for the plaintiff in error.
    
      A. Taler, for the defendant in error.
   By the Court,

Bronson, J.

It was sufficient, to maintain the action of trespass, that the plaintiff had the actual possession of the horse at the time of the illegal taking. The defendant did not attempt to justify under nor in any way to connect himself with Colgrove, the mortgagee of the horse; and it is no'answer in trespass de bonis asporlatis to show property out of the plaintiff in a stranger (Demick v. Chapman, 11 Johns, R. 132. Cook v. Howard, 13 id. 276). The evidence in relation to the mortgage was properly overruled.

Should the offer to return the horse have been considered by the jury in mitigation of damages? The plaintiff’s right of action was not only complete before the offer was made, but the suit was actually commenced, and no offer was made to pay the costs that had accrued. It is said that the suit was not commenced, because the declaration had only been filed and a rule entered to plead; and the service of a copy on the defendant was not made until after the offer to return (2 R. S. 374, § 1, subd. 3). Although the action was not for every purpose commenced before the property was [93] restored, the necessary incipient measures had been taken by employing an attorney, and the drawing and filing of the declaration. The plaintiff had incurred costs; and if the offer to return the property had been received in mitigation of damages, the plaintiff would have been substantially defeated in a good cause of action, and been compelled to pay costs to the defendant. The plaintiff was no doubt very diligent in commencing legal proceedings, but the defendant was irregular, and acted at his peril in taking the property.

But independent of the fact that the plaintiff had commenced legal proceedings, there was no ground for mitigating the damages. The horse had been wrongfully taken, and the plaintiff had a right to insist on being paid the value. The actual return of the horse to the plaintiff’s stable, without his assent, was a matter of no legal consequence. If the'plaintiff had consented to receive the property, it would not have defeated his action altogether. It is not a defence which can be pleaded; it only goes to the question of damages (Vosburgh v. Welch, 11 Johns. R. 175; Gibbs v. Chase, 10 Mass. R. 128). The plaintiff refused to receive the property, and insisted on his legal right to recover the value as well as damages for the illegal taking. It can make no difference in principle that the horse was only kept a short time. The injury was complete, and the plaintiff’s right of action was as perfect the moment after the horse was first led from his stable, as it could have been after the lapse of a month or a year. The defendant could not by any act of his own, without the plaintiff’s consent, defeat the action.

I was at first inclined to the opinion that the second taking of the horse on valid process against the plaintiff, might be regarded as equivalent to an acceptance of the property when tendered,, and that the damages should be mitigated on that ground. It may be doubted whether this question can properly be made on the bill of exceptions; but waiving that consideration, the return and subsequent retaking of the property could not change the plaintiff’s rights. They were complete, and he has done nothing to relinquish them. He said, in effect, to the defendant, you have wrongfully taken my property; I will not receive it back; do with it what you please; [94] I insist on my remedy by action. There is I think, no legal principle upon which the defendant by any mere act of his own, could get rid of the difficulty. If the horse had not been returned to the plaintiff’s stable, the levy of the second attachment could not have ■ altered the case. It was a matter of no moment to the plaintiff what became of the horse after the original illegal taking. Replacing the animal in the plaintiff’s stable without his assent, was a nugatory act; it could no more operate to prejudice the plaintiff than any other disposition which the defendant might have made of the property.

Judgment affirmed.  