The ground of the decision at the trial wai". that as the property had been delivered to William junior on a contract to re-deliver it to the officer on demand, it should be regarded as if it had been delivered to a stranger on°a like contract. It is said that the receipter had a valid defence against an action on the receipt ; but as the receipt states that the goods delivered to him and which he promises to keep and to re-deliver on demand, were taken on a writ against R.obinson senior, we think he would be estopped in an action upon the receipt, from setting up property in himself. Johns v. Church, 12 Pick. 561. But the more important question is, whether the delivery of the property to one of the plaintiffs on his receipt, ought not to have been admitted in evidence in mitigation of damages. It would seem to be equitable and to avoid circuity of action. But there are several objections to this. The officer held the receipt, having a claim to the goods as the property of Robinson senior, and did not give it up before or at the trial. The receipter was bound to retain the property and have it ready for delivery on demand. He could make some use of it, but he was not at liberty to sell it. Besides, where one has committed a trespass by taking the property of anothei, the party injured is not obliged to take back the propertv. The re-delivery of it, in many cases, would afford a veiy inadequate remedy. The property may have fallen in value or become deteriorated in quality. It would not therefore be safe to say that a re.-delivery of the goods should be taken in discharge of the trespass.
*145The defendants objected that the verdict included interest on the property which was delivered to William junior upon his receipt.
Per Curiam.The instruction in regard to interest applied to the whole case and was proper except as to these particular goods, in respect to which no distinction was taken at the trial, and no request made to the judge to distinguish them from the operation of the general rule. As one of the plaintiffs actually had possession of these goods, and probably had the use of them, under the particular circumstances we think the jury might have been properly instructed not to allow interest on them. But if the plaintiffs remit this interest, according to their offer, the error will be no ground for granting a new trial.
Judgment was thereupon entered on the verdict, the amount of this interest being deducted.