delivered the opinion oe the Court upon a petition eor a rehearing.
It is urged that as the evidence shows that appellee sold a portion of the cloth for $22, and had a suit made from the remainder, therefore appellant’s action must be considered as in assumpsit, and a set-off arising out of contract applicable thereto.
It does not follow, because appellee converted a portion of the goods into money, nor indeed would it had he so converted them all, that appellant would be compelled to bring, or that his action must be considered as, a suit in assumpsit. In assumpsit, appellant could recover only the amount received for the goods, while in trover or trespass he maly recover the value of the property wrongfully taken.
There was evidence from which the finding might have been that the value of the goods sold by appellee was much greater than the sum for which they were sold. It is for appellant to decide whether he wishes, as to such goods, to have his action treated as one of assumpsit or of tort.
Appellee also urges that as appellant sued him before a justice of the peace “ away out of the city in the town of Orland, while the record shows both parties to be residents of Chicago,” and as upon the merits it has been established, not only that he has a complete defense to the claim, but that appellant owes him money, we ought to affirm the judgment. We do not think that it has been established that appellee has a defense upon the merits, while it does appear that appellant owes appellee.
If we were permitted to equitably adjust all the differences this record calls to our attention, to decide this controversy in accordance with our personal opinions of what is right, or to follow what the public might approve, we should perhaps exercise such power wisely. As to this we can not say. We know that it is our duty to administer the law equally to all persons; that each party has a right to insist that it shall be so administered in this case.'
We have no right to set aside the law and determine the rights of litigants by the peculiar bias which education, habit, association or faith may have given us.
Whether the rule of law which denies the right to set off damages arising out of contract, against those arising out of willful tort, be wise, is not now to be considered. The rule exists, is insisted upon, and must be enforced. The rights of appellee arising out of contract may be enforced in another action.
The petition for rehearing is denied.