Freedmax, J.—The appeal being from the judgment merely, the only questions open for review are the questions of law arising upon the exceptions taken by the defendants upon the trial.
Under the issues raised by the pleadings and the testimony given on the trial on both sides, the evidence as to the retail value of the goods taken was properly admitted. It was, under the circumstances, competent, although by no means conclusive. A question of a more serious character would arise upon that part of the charge, in which the court laid down the rule that the value of the goods taken should be the fair retail market value of the goods on the 8th day of December, 1869, with interest thereon, if the defendants had taken a proper exception to it at the time. But as they acquiesced in it by excepting only to so much of the charge as instructed the jury that the only question "for them to consider was as to the value of the goods, *6they cannot now be permitted to urge for the first time that the court erred in that respect.
The same remarks apply to the attempt of defendants’ counsel to convince us upon the argument, that the court below erred in directing the jury to allow interest on the value of the goods, for the reason, that in all cases of this nature, interest constitutes an item of damage in the discretion of the jury. But independent of that consideration, it may be well to point to the fact that the proposition here contended for has been expressly repudiated in this State. “ Interest on the value at the time of the conversion,” says Johnson, 0. J., in delivering the opinion of the Court of Appeals in the case of Andrews n. Durant, 18 A7! Y. 496, “is as necessary a part of complete indemnity as the value itself. There is no sense in the idea that interest is any more in the discretion of the jury than the value.”
Two questions, therefore, remain to be considered:
1. The effect of the simultaneous levy under the thirteen attachments upon the separate liability of the defendants in this action, and,
2. The admissibility or non-admissibility of the evidence showing a subsequent seizure under process claimed to have been valid, which was offered by the defendants and rejected by the court.
As to the first: The action was one sounding in tort. It was trespass for wrongfully taking and carrying away plaintiff’s goods and breaking up her business. The attachments, under cover of which the goods were taken in the first instance, having been set aside for irregularity, they afford no shield or protection whatever for such taking to the creditors who procured them to be issued. Such protection extends only to the officer while acting under them in the discharge of his public duty. The moment they were set aside, the creditors stood as though no process had ever been issued, and became trespassers ab initio. (Lyon v. Yates, 52 *7Barb. 237; Kerr v. Mount, 28 N. Y. 659.) And as the evidence plainly establishes that all attaching creditors actively participated in the seizure and removal of plaintiff’s entire stock at one and the same time, without separating their respective proceedings, and there being no evidence from which the extent of the separate liability of any one of them can be ascertained, they must, in the aspect of the case in which the question is presented by the appellants, be deemed, for the purposes of this case at least, to have been joint tortfeasors, and as such their liability is joint and several and enforceable," accordingly at plaintiff’s election (Creed v. Hartmann, 29 N. Y. 591, affirming S. C., 8 Bosw. 123; Kasson v. The People, 44 Barb. 347).
In such cases, an answer pleading a former recovery against one, to be good, must also aver actual satisfaction (Phil, on Ev. 5th Ed., Vol. II., p. 114 [* 134]; Wies v. Fanning, 9 How. 546).
In the case at bar no such issue was raised by the pleadings, and if there had been, there was no evidence to support it. On the contrary, the evidence showed not only that the defendants were very active in enforcing the levy and removal of the goods in the unusual and oppressive manner, in which they were seized and removed, but, in addition, that all of plaintiff’s goods were taken to defendants’ store, kept there for weeks after the attachments had been" vacated and the return of the goods demanded, and finally sold for defendants’ exclusive benefit, under an execution subsequently procured by them in some way, which is not specified.
The bare fact of the existence and simultaneous but fruitless levy of the attachments issued by the other creditors, cannot, therefore, be made available to the defendants in this action in any aspect of the case.
As to the second: To properly determine this question it is necessary to inquire whether a tortfeasor, who has taken property by a wrongful act, can subsequently *8apply the same on legal process issued in his own favor and against the owner, and, if he cannot, under what circumstances and to what extent he may be permitted to show that the. same property was taken from him again by a third party.
In Hanmer v. Wilsey, 17 Wend. 91, it was held,- that 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 purpose, 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.
In Otis v. Jones, 21 Wend. 394, some horses taken under an attachment issued in an action, which the plaintiff found himself compelled to discontinue, were subsequently sold under an execution issued in another action for the benefit of the same party. The judge at the circuit ruled that the effect of the sale, which was legal, was to mitigate the damages, and prevented the plaintiff from recovering any more than nominal damages. But, on appeal, the court repudiated this doctrine, reaffirmed the principle enunciated in Hanmer v. Wilsey, 17 Wend. 91, and expressly held, that a wrongdoer cannot discharge himself by any act of his own, without the assent of the injured party. By procuring a subsequent sale on legal process, the defendant cannot be better off than he would be if he had offered to restore the property to the plaintiff. And yet no tender will, at the common law, either bar an action for a tort, or take away the right to full compensation in damages.
The decisions in Lyon v. Yates, 52 Barb. 237, and Peak v. Lemon, 1 Lansing, 295, are to precisely the same effect.
A distinction, however, was made whenever it appeared that the property was taken again from the trespasser, without any agency or connivance on his part, *9and applied to the owner’s use, although without the latter’s consent, hy the act of a third person aud the operation of law. In this class of cases the jury were permitted to take the taking of the goods by such third party, and their application to plaintiff’s use, into the account in estimating plaintiff’s damages. But at the same time it was deemed necessary in every instance that it should.appear that the subsequent taking by such third party was independent of any agency on the part of the defendant, and that there was in point of fact an application to plaintiff’s use (Higgins v. Whitney, 24 Wend. 379; Sherry v. Schuyler, 2 Hill, 204; Ball v, Liney, 44 Barb. 505; Ward v. Benson, 31 How. 411).
How, the offer made by the defendants to prove (“it “being assumed and agreed that the witness and the “papers are in court) that after these actions had ter - “minated in the Marine Court, and before the com“mencement of this action, actions were commenced in “the Court of Common Pleas, between the same par“ties, and against the property of said Louisa Bouai “ Wehle, duly and regularly issued therein, on the “ground that the defendant in that suit (the plaintiff in “this suit) had disposed of property, to defraud credi- “ tors ; and that thereunder the goods in question were “ seized by the sheriff; that a motion was made to va- “ cate those attachments and denied ; and that the said “ attachments stand to-day,” was rather vague. It may be questionable whether the words “between the same parties,” mean only the parties to this action, or all the creditors named in the first thirteen attachments and the plaintiff herein. Supposing the first to be the case, it is quite clear, upon the authorities already examined, that the defendants cannot be permitted to defend, either in whole or in part, the trespass committed by them by proof of a subsequent appropriation of the property to plaintiff’s use, but without her consent, under an execution procured in their own favor. And *10if the second is assumed to be the case, the same objection seems to apply with equal force to all the attaching creditors. Having been jointly concerned, for the purposes of this action at least, in the commission of a wrong, and being jointly and severally liable therefor at plaintiff’s election, they were all alike incapacitated from making a subsequent legal appropriation of plaintiff’s property, either for their joint account, or for account of any one of their number, without plaintiff’ s assent. To hold otherwise would be to hold, in effect, that one of a number of joint tort-feasors may escape liability by inducing any one of his confederates to do what he is not permitted to do. But inasmuch as the testimony given on behalf of the defendants shows that the defendants were, as already stated, the only ones that derived any benefit from the taking of plaintiff’ s property, and that there has been no appropriation of the same in point of fact to plaintiff’s use under legal process subsequently procured by the other creditors, and inasmuch as the court below charged the jury to consider the value of the goods taken from plaintiff under defendants’ attachments, and the jury must be presumed to have found in accordance with such instruction, it is unnecessary to pursue this line of inquiry any further.
Another grave objection to the receipt of the proposed evidence in this action is, that, even if its sufficiency as a subsequent legal appropriation to plaintiff’s use as well as its competency be assumed, it is not pertinent to any of the issues raised by the pleadings, because not pleaded. Defendants’ counsel, it is true, strenuously argued that it should have been received at least in mitigation of damages, and that for that purpose it did not require being pleaded. But on a critical examination this claim also will be found to be untenable. Mitigating circumstances do not, and never did, amount to a defence to any part of plaintiff’s claim. *11They may diminish the nominal claim made by him, but do not diminish the real claim, or reduce it below what it was originally.
A defence, as understood in law language on the other hand, is a full answer to the whole or some part of plaintiff’s demand.
Under the old practice, both were admissible under the general issue without being pleaded, and this fact led to a frequent confusion of the distinction, to some extent at least, between partial defences and circumstances of mitigation (Harter v. Crill, 33 Barb. 283).
How the evidence which was proposed and excluded in this case, did not in any wise tend to mitigate the trespass, nor to diminish plaintiff’s claim, whether nominally made too large or not, for in such case the law itself prescribes the true measure, and a certain definite measure, of damages; it did not consist of circumstances which existed at the time of the commission of the trespass, and possessed a mitigating or extenuating character; that as such could be considered in the estimation of plaintiff’s loss, which had then fully accrued; but it was offered for the purpose of bringing about, when received, a reduction, not of plaintiff’s claim, but of plaintiff s recovery. Whether it be considered, therefore, as a set-off, or as matter of avoidance or in bar, in full or pro tanto, it was equally new matter purporting to constitute at least a partial defence, and as such should have been set up in the answer (Code, %% 149, 150).
It is indeed somewhat remarkable, that no case can be found in the books in which this precise question has been determined. The cases of Higgins n. Whitney, and Sherry v. Schuyler, above cited, occurred before the Code. In Ball v. Liney, 44 Barb. 505, the answer did contain all necessary averments, showing a full and complete appropriation to plaintiff’s use, and that the pleader must have been equally careful and precise in *12Ward v. Benson, 31 How. 411, is apparent from the report of the whole case: But if any authority be needed, it will be found that the principle of the decision of the Court of Appeals in McKyring v. Bull, 16 N. Y. 297, is fully applicable to the present case. Seldeu, J., in delivering the opinion of the court in that case, in the course of which he extensively reviewed the decisions of the English courts upon this subject, as well as the qhanges effected by the Code, concludes as follows:
“My conclusion, therefore, is, that section 149 of the “ Code should be so construed as to require the defendants, in all cases, to plead any new matter con“stituting either an entire or partial defence, and to “prohibit them from giving such matter in evidence “ upon the assessment of damages, when not set up in the “ answer. Not only payment, therefore, in whole or in “part, but release, accord and satisfaction, arbitra“meet, etc., which may still, for aught I see, be made “ available in England, in mitigation of damages, with- “ out plea, must here be pleaded.
(See also, Foland v. Johnson, 16 Abb. 235; Beckett v. Lawrence, 7 Abb. N. S. 403; Bush v. Prosser, 11 N. Y. 347 [352], and Smith v. Reeves, 33 How. 183.)
The evidence embraced in defendants’ offer was properly excluded, therefore, as not pertinent to the issues raised by the pleadings.
It appearing, as the final result of this examination, that none of the exceptions taken by defendants can be sustained in law, the judgment appealed from must be affirmed with costs.