Page:Dakota Territory Reports.djvu/64

 be contended that an Act of a territorial legislature can repeal a law of Congress.

It is probable that the treaty of April 29th, 1868, (15 Stat., 636,) extinguishes all title of the Indians to the lands in question except the right of hunting, reserved in the treaty, but we have shown that this alone does not determine the status of the country under the non intercourse law.

Secondary question: Assuming the taking of the goods in question by defendants, to have been unlawful, what was the true measure of damages? The value of the goods when taken, less their value when returned to the plaintiffs at Fargo, or less their value when seized by the U. S. Marshal?

General rule of damaged for wrongful taking of goods which have been returned to owner, admitted to be, value of goods when taken, less value when so returned.

Where a creditor tortiously takes the goods of his debtor and afterwards causes the same goods to be seized on an attachment or execution in an action brought by himself against the debtor and the goods are sold on such execution, in an action by the debtor against the creditor to recover damages for the original tortious taking, the fact of such seizure may be shown in mitigation of such damages, and the debtor can only recover damages for the original taking and the detention until the seizure on attachment or execution. (Curtis v. Ward, 20 Conn., 204.) Some authorities deny the last proposition, solely on the ground that the trespasser cannot, by any mere act of his own, rid himself of any liability originally incured, (Hanmer v. Wilsey, 17 Wend., 91,) but where the goods are delivered by the trespasser to an officer holding a writ issued by a court of competent jurisdiction, in a suit against the owner not instituted by the trespasser, nor prosecuted for his benefit, duly authorizing said officer to seize such goods, reason and authority concur in regarding such delivery as the equivalent of a delivery to the owner himself. Goods so taken by an officer are held by him under the law, in trust for the owner, until in pursuance of a judgment of the courts they are returned to the owner or otherwise disposed of. In no event can they be returned to the tres-

.—8.