The attachment, under which the defendants had the goods seized in the first instance, having been set aside as irregular, it afforded them no « shield or protection whatever for such taking. The mo-*244meat it was set aside, they stood as though no process had ever been issued, and became trespassers ab initio. (Kerr v. Mount, 28 N. Y. Rep. 659.)
[Monroe General Term, December 7, 1868.Having taken the property as trespassers, they could not in an action against them- for the tort, show that subsequently they had caused it to be levied upon by virtue of a valid execution in their own favor. This is well settled. (Otis v. Jones, 21 Wend. 394. Hanmer v. Wilsey, 17 id. 91. Higgins v. Whitney, 24 id. 379. Sedgw. on Dam. 536.) The evidence for that purpose offered, was therefore properly excluded.
Where property has been tortiously taken, but returned, and the return has been accepted, and the property retained by the owner, before action brought, the return may be given in evidence in mitigation of damages. But this is no such case. The owner may refuse to accept property returned by the tortious taker, and the latter cannot compel him to accept it, or retain it. A party who takes property wrongfully, and afterwards undertakes to subject it to an execution, in his favor, against the owner, stands in the same situation. He cannot compel the owner to accept such an appropriation of his property after a wrongful conversion.
The owner may in such case stand upon the original wrong, and claim the full value of the property.
The disposition which a wrongdoer makes of the property he has converted without the assent of the owner cannot help him, in any way, in an action for the tortious taking. There was no dispute about the facts, and the verdict was properly ordered by the court. The judgment is right, and must be affirmed.
& D. Smith, Johnson and J. 0. Smith, Justices.]