¶1It appears from the evidence, that the goods in controversy had been placed in appellant’s warehouse. That they were afterwards removed without his knowledge or consent, and were found on the premises of appellee, concealed in various places, evidently with the design of preventing appellant from finding them. When called upon, by the officer with a search warrant, appellee and his wife denied having them, or having any knowledge of where they could be found, and charged appellant with having stolen them. After they were found, the goods were taken by the officer to Princeton, where appellee requested the officer to seize them on an execution against himself, which he supposed the officer had in his hands for collection. The evidence further shows, that the sheriff did seize the goods under the' execution as appellee’s property, and the record fails to disclose any evidence that the levy was ever released, or the goods restored to appellant, and the presumption is, that they were sold on the execution, or, if the judgment was otherwise satisfied, that appellee regained their possession.
¶2In the face of such evidence, we are at a loss to understand the grounds of this recovery. If the goods were given up, and a levy and sale were made, under this execution, to satisfy appellee’s debt, it is manifest, that every principle of justice must be disregarded to again give him pay for this property. Having had them applied upon the execution, and failing to show that they afterwards came to the hands of appellant, by no possibility can appellee recover for the same property. This rendered the giving of appellant’s first instruction proper. By it, the court was asked to inform the jury, that, although appellee might be the owner of the goods, and although he may have demanded them, and appellant refused to deliver them, and that appellee afterwards repossessed himself of them, and they were levied upon by the sheriff and held by him under an execution against appellee, at the time this suit was commenced, still, no more than nominal damages could be recovered. Having repossessed himself of the goods, and having appropriated them to his own use in the payment of his debts, it is obvious, that he sustained no damage beyond the loss occasioned by their detention after the demand was made. We know of no method of rendering this proposition clearer than by its statement. The court erred in refusing this instruction, and the verdict is palpably against the evidence.
¶3The judgment of the court below must be reversed, and the cause remanded.
¶4Judgment reversed.