The opinion of the Court was prepared by
Whitman C. J.The defence, as exhibited, cannot be sustained. The defendant was a packet master; and, as such, undertook to bring, for the plaintiff, certain boxes of merchandize, of which those named in the declaration were a part, in his packet, from Boston to Bangor; and in January, 1842, arrived with them at Frankfort, which, owing to the ice in Penobscot river, was as near as he could convey them, in his vessel, to the port of destination; and there landed them, and demanded his freight, and advances, which he had made on account of them in Boston. The plaintiff, thinking he demanded too much, tendered what he admitted to be due; and demanded his goods. The defendant refused to receive the amount so tendered, and caused the quantity sued for to be sold at auction for the amount claimed by him, and the expenses of sale. The plaintiff thereupon instituted this action of trover to recover the value thereof.
*342It is very clear that the defendant had no right to cause the sale to be made of his own mere motion, and without the intervention of legal process for the purpose. The law merchant recognizes no such right on the part of carriers by sea, under a common bill of lading, such as the defendant had signed in this instance. If the plaintiff was willing to receive his goods at Frankfort, which by his tender and demand of them there, it seems he was, the defendant might well insist on a pro rata freight, and on detaining the goods until it was paid; but a simple detention only, in the first instance, was all that could be insisted on.
It is urged, that the defendant was without a convenient remedy, unless the course he pursued can be sanctioned; that the Courts of this State, having no jurisdiction in equity in such cases, the only resort, if the defendant could not sell as he did in this case, must be to the United States Court of admiralty, which would be extremely inconvenient; and, therefore, that it is highly proper to uphold the proceeding adopted by the defendant. But it is not for Courts to alter an established law. It is the duty of Courts, as has often been remarked, to expound and apply the law, as it may be found established and not to legislate.
But it appears that the plaintiff attended the auction, and, through the intervention of a friend, regained possession of his goods, by paying the auction price, and five dollars more to his friend; and it is not shown that, when so received, they were not in good order. This must be allowed to go in diminution of the damages, which the plaintiff would otherwise be entitled to recover. Whatever damages he sustained, over and above what was fairly due to the defendant, in regaining possession of his goods, he is entitled to have allowed him. The five dollars paid to his friend for bidding off the goods; five dollars and thirty-one cents for auctioneer’s fees; five dollars for his own time in endeavoring to regain possession of his goods, and six dollars, being the difference between the freight demanded, and the amount tendered, with interest on these sums, making twenty-two dollars and fifty cents, the plaintiff must have judg*343ment for. Murray v. Burling, 10 Johns. R. 172; Bank v. Leavitt, 17 Pick. 1.
He cannot have judgment for the value of the goods; for he was never divested of his property in them. Neither the acts of the defendant, nor the sale at auction, nor being in market overt, there being none such in this country, as there is in England, conkl effect a change in the right of property. The plaintiff, if his tender was sufficient, might have maintained an action of replevin for his goods, against the defendant, or against a purchaser at the auction sale, as well as trover against the defendant; and the latter action is maintainable only upon the ground, that the defendant had done, in reference to the goods, what was unauthorized by law.
Defendant defaulted for $22,50.