Page:Dakota Territory Reports.djvu/74

 be expected to follow such acts, and ought not to be apportioned or qualified.

All the damages and injury were a part of the chain of effects resulting from these acts, and the defendants, if liable at all, are liable at least for the damages actually sustained by the plaintiffs from these unlawful acts as naturally flowing therefrom.

We are satisfied that the rule as to what may be shown in mitigation of actual damages sustained in actions of trespass should be limited to evidence of actual benefits received by the plaintiffs, after the trespass, from the property taken. Under this rule, if after property has been taken in trespass from the owner, an execution against him is levied thereon and the property sold, and a judgment against the owner thereby satisfied, this we think could and ought to be shown in mitigation of damages: So if the whole or a part of the property has been returned to the plaintiff before trial, etc.; but this rule has been doubted, and able jurists have held that no application of the property without the owner's consent would be available in mitigation of damages. Hanmer v. Wilsey, 17 Wend., 91; but we think the law will presume the assent of the owner to such application of the property as is for his benefit to the extent of such benefit.

But where as in this case the verdict is only for the actual damages sustained after deducting all benefits derived by the plaintiffs from the return of some portion of the goods, it was incompetent to show in mitigation of damages, that after the trespass was committed and before the goods were returned they were in the custody of the law, under and by virtue of process, for the purpose of enabling the jury to deduct from the aggregate damage, the damage done the goods while in such custody. And if under the old practice a portion of the damages only could have been proved and recovered in an action vi et armis, and another portion only in an action of trespass on the case, still, under our code, all may be shown and recovered under the complaint stating the simple facts. All distinction in the old forms having been abolished, all may be recovered that flowed from the original