The opinion of the Court was delivered by

The only ground of appeal relied upon in the argument of the defendant’s attorney is the first.

The proposition contained in it, is I think true ; but the case made cannot be governed by it. For there is nothing which will enable the defendant to waive the tort, and proceed for the proceeds of the property, ex contractu.

If the watches seized wrongfully, had been sold, then the defendant might have waived the tort, and claimed the proceeds as money had and received to his use.

But this was not the case here. For the watches seized were destroyed by fire. If the defendant’s right of property was improperly invaded, his only remedy is trespass, or trover; and no one can now contend, that damages, to which the defendant may thus entitle himself, are the subject of discount.

The cases cited by the Recorder, puts the matter to rest.

The motion is dismissed.

Motion dismissed.