Page:Dakota Territory Reports.djvu/69

 owner had taken full possession, and any damage done or happening thereafter may be the same as if it had been done by the owner or happened when in his possession. But in this case the original trespasser induced the seizure for the purpose of having the goods libelled and forfeited when there was no debt and no liability to forfeiture, otherwise the goods could not have been returned. The reason why courts will not allow a party to have his debts paid with his goods and thus recover the full value of the same in an action t)f trespass because there was a tortious taking before a legal levy, is plain; but the reason why courts should not allow a party whose goods and property have been unlawfully taken from him by the defendant and detained for a time and then returned to him, to recover the damages he has sustained by such unlawful taking and detention, is difficult to see. And it can make no difference in such a case that the goods were a portion of the time in the custody of the law at the instigation of the original trespasser. To protect the original trespasser at all, the result must show that such goods were taken into legal custody without his connivance for valid cause, and that the owner, his creditors or the country, has derived some benefit from such legal proceedings. The risks of all miscarriages are with the original trespasser in any event. The right of action by the respondents against the appellants for the entire value of the goods was complete the moment the goods were unlawfully taken, and their liability in damages cannot be mitigated or changed by what the law afterwards attempted to do, and failed to do. The return of the goods, the disposition of the same for the benefit of the owner by virtue of legal proceedings, or the confiscation and appropriation of the same by the law, might be shown in mitigation of damages. But the burden of proof was on the defendants, to show a disposition made either with the actual consent of the respondents, or by such legal seizure and sale under process as would in law necessarily imply consent. But no sale under process was claimed. The seizure was temporary and made at the instigation of appellants, and damage to the goods under such seizure cannot be shown in mitigation of damages. There was no error in the instruc-