A deputy sheriff wrongfully attached the plaintiff’s goods, dispossessing the plaintiff and putting a keeper in charge of Ms store. On the next day, the deputy tendered to the plaintiff a return of the goods uninjured, and in the same condition as when attached the day before. The plaintiff refused to receive them.
It was ruled, at the trial, that the damages for the attachment and taking, should be limited to any injury necessarily sustained by the plaintiff, by the disturbance of Ms possession from the date of the attachment to the date of the offered return. This was error. The general rule of damages applies in such case. The plaintiff was entitled to recover what the entire property was worth when it was attached. A return of property in mitigation of damages could not be forced upon the owner against his consent.
When repossession and redelivery are spoken of, in the cases relied upon by tbe defendant, as going in mitigation of damages, it has reference to a return of the property with the consent of the owner. A person cannot be said to possess, who does not *380consent to the possession. Nor can there be a redelivery where there is no acceptance. A mere offer to deliver is not a delivery.
It has been held that an officer, liable as a trespasser for irregularly distraining goods for taxes, may be entitled to have the amount of the taxes deducted from the damages recoverable against him, the taxes being regarded as thus cancelled and paid. It is for the owner’s benefit in such case that the tax be regarded as paid. And other cases founded upon the same or a similar principle may be found. But in all of them the doctrine is founded upon the idea, that the deduction or mitigation is allowed with the implied assent of the owner. The case at bar is not such a case.
The case most relied upon, to support the proposition advocated by the defendant, is Delano v. Curtis, 7 Allen, 470. But in that case a vital element was wanting which is not absent here. In that case, the defendant did not take the property into his own possession, or necessarily exclude the owner from its control. He merely forbade, but did not attempt to prevent, a removal of property which was upon his own premises. The facts are not very fully reported, but Greenfield Bank v. Leavitt, 17 Pick. 1, is cited in the opinion as its authority, and the latter case decides only, that "if the property for which the action is brought, should be returned to and received by the plaintiff, it shall go in mitigation of damages.” In Stickney v. Allen, 10 Gray, 352, the same court refused to apply the doctrine, which the present defendant contends for, to a state of facts calling for its application, if in any case it should be applied, the property taken being certain stereotype plates of peculiar value to the plaintiff, and of very little value to anybody else. But, as Putnam, J. said, in Greenfield Bank v. Leavitt, supra; "the certainty of a rule is quite an equivalent for its occasional want of perfect exactness.”
The rule asked for by the defendant, would give to the trespasser more power and discretion than courts are accustomed to exercise which order an acceptance of property offered to be returned in mitigation of damages, after a hearing as to its justice and expediency. In such case, by the power of the courts, an owner may have to accept a return of his property; but by *381the power of the party lie must accept it, if the defendant's theory prevails.
It is true, that sucli a rule would work well in a few peculiar and exceptional cases. The trouble is, that if would operate unjustly in very many and most cases. A dividing line could not lie easily established. The rule would have to apply to all cases where the trespass is not wilful, wanton or malicious. This would give the election to a trespasser to decide how an owner shall be compensated for his trespasses. It would have a tendency to stimulate carelessness and unwarranted experiments in attaching property. It would impose unusual and unreasonable risks and responsibilities upon the owner. He may lose his credit, or be broken up in his business, by an improvident trespasser, and still be obliged to accept his goods again. lie may, in the meantime, have got other goods, or gone into other business, and not be favorably situated to take the property back, lie must at his peril decide correctly whether the trespass was a wanton or malicious act or not. How is he to ascertain that fact ? How may he know whether the property will be returned or not ? How long shall lie be held in suspense by the -wrongdoer ? How can he always know whether the property is returned in the same condition as when taken or not? In most cases, Ms embarrassments would be greater than he could bear. The law does not impose them upon him.
Exceptions sustained.
Appleton, C. J., Walton, Danfobtix and Libbey, JJ„, concurred.