
    Town vs. Evans.
    The remedy provided by our statute of replevin, in cases where a wrongful cájition of taking is complained of, is the common law action of replevin, applicable to the same cases,-subject to the same pleas, and requiring the same proofs, &c., Tfapnall vs. Hattiet, ante 18, cited.
    Where the party has his choice either to pursue the remedy pointed out by the common law, or to adopt that provided by the statute for wrongful detention, and hee-lects to puTstle the common law femedy, he must be held to the proof necessary to support that form of the adtion.-
    At common' law,- proof of possession by the plaintiff, and an actual wrongful-taking by the defendant, is necessary to sustain the action.
    Where the action is in the cepit, and the plea is non cépit, the tortious taking is in issue, and it is erroneous for the court to charge tiré jury that the plaintiff is not bound to pítfve a taking.-
    Under such issue, to charge the Jury that “it is sufficient for the plaintiff to proVe a taking, or having the property in possession, by the defendant, without the consent'of1 the plaintiff, at the commencement of the suit,” is-erroneous.
    
      Writ of error to the circuit court of Washington county.-
    
    This was an action of replevin, by Onesimus Evans against Charles F* Town, determined in the circuit court of Washington county, at the May term, 1844, before the-Hon. J. M. Hoge, judge-' The action was for the recovery of a printing press, types, &c., which the plaintiff alleged, in his declaration, the defendant took and detained from him. The defendant pleaded, 1st, non cepit: 2nd, property in himself; and issues were- made up upon the- pleas* The case was submitted to a jury, and the plaintiff obtained verdict and judgment in his favor.
    Pending the trial, the defendant took a bill of exceptions, from which it appears that,-after the evidence was closed, the plaintiff asked the court to charge the jury, “that the plaintiff was not bound to prove a taking of the property in controversy, but that it was sufficient for him to prove a taking, or having of the press and apparatus by the defendant, without the consent of the plaintiff, at the commencement of the suit,-” which the court gave, and the- defendant excepted. The defendant asked the court to instruct tfte jury,“that unless they believed, from the evidence, that there was a wrongful taking of the property, in the declaration mentioned, from the possession of Evans, by Town, amounting to a trespass, they must find for the defendantwhich the court refused, and the defendant excepted. The bill of exceptions also sets out the evidence',the substance of which follows
    Town had been the owner, and in possession of the press, types," &c. In the fall of 1842 he left home, leaving them in an' office which was under his control. In his absence SnlithsOn sold them to plaintiff, applied part of the proceeds to Town’s benefit, and’accounted to him for the- balance on his return/ When Evans purchased them, he did not move them frbin the office, but they were pointed out to him, and the key of the room, ill1 which they were,’ delivered to him.- After Town’s return, and after Smithson had accounted to him for the proceeds of the sale, he took possession of the office in which the press,' types, &c., yet remained, and, on demand by the plaintiff, refused to give them up to him,' saying they had been wrongfully sold.
    The defendant brought the case to this court by writ of error.
    D. Walker, for the plaintiff.
    Under the státute, replevin will lie either for the wrongful taking or detention of personal property,' The present case is replevin for the wrongful taking of a printing press and apparatus, from Evans, by Town. The common law has not been altered by our statute in cases of this kind, and this court,like the New York courts, considers and treats them purely as common law questions. Pirani vs. Barden,- 5 Ark. Rep. 81/ Marshall vs. Davis, 1 Wend. 109.
    The settled and admitted common law doctrine, every where, is,that replevin will not lie unless there has been a tortious taking ■ which makes the party a trespasser ah initio. Mearcy vs. Head,-1 Mason 322. This being the case the court clearly erred in refuse ing to give the instruction prayed by the defendant in the court below. In Pangburn vs. Partridge, 7 J. R. 143, it was ruled that replevin lies for goods taken tortiously or by a- trespasser.
    In Thompson vs.- Butler, 14 J. R. 87, the court say the utmost-extent to which the case of Pangburn vs. Partridge can be carried, is to permit replevin to lie where an action of trespass might be brought. In Mills vs. Martin, 19 J. R 31 ’2, it is again ruled that where the taking was tortious, and for which trespass would lie» there replevin would lie also. In. the case of Clark vs. Skinner, 20 J. R. 467, also, the same rule of law was recognized, and says the true criterion is that replevin lies in all cases where trespass de bonis asportatis can be supported. These authorities establish conclusively that the rule of law contended for by the plaintiff in error, in the instruction he asked the court below to give the jury, that unless Town was a trespasser he was not liable in the present form of action.
    The court below also erred in giving to the jury the instructions of the plaintiff, “that a taking or having the property against the consent of plaintiff, was sufficient to sustain the action.” This court, in the case of Pirani vs. Barden, supra, has drawn the distinction between cepit and detinet replevins, and confines the latter to all cases of bailment, or lawful possession; the former to a tortious taking.
    Fowler, (for the plaintiff,)
    referred to 14 John. R. 84. 7 John. R. 143. 3 Wend. Rep. 242, and case of Trapnall vs. Haltier, ante 18.
    Trapwall & Cocke, contra.
    The instructions asked by the plaintiff are not properly shaped, but they are substantially correct; because on the issue of the plea of non cepit, “it is sufficient to show that the defendant had the goods in his possession in the place alleged, for the wrongful taking is continued in every place in which he afterwards detained them.” Saunders on PI. & Ev. 767. Camper 476. In this case, from the peculiar circumstances proven, an actual taking could not have been proved; but the detention and refusal to deliver on demand amounted to conclusive evidence of the unlawful taking. The instructions of the defendant might have been given, but no injury resulted, as the facts necessary to prove plaintiff’s right of recovery were admitted by Town himself.
    
      Oldham, J., not silting: Macuñ, Special J., sitting with the Chief Justice.
   Johnson, C. J.,

delivered the opinion of the court.

The plaintiff in error contends that the court below erred; 1st In giving the instructions asked for by the defendant; and 2d, In refusing those desired by himself.

We deem.it unimportant to notice more than one of these assignments, as the decision of the one necessarily disposes of the other. The first section of chapter 126 of the Revised Statutes, provides that “whenever any goods or chattels. ar.e unlawfully taken or unlawfully detained, an action of replevin may be brought by the person having the right of possession, .and for the recovery of the damages sustained bj? reason of the unjust caption or detention.” In the case of Trapnall vs. Hattier, ante 18, this court, when speaking in reference to this statute, said that, “In this section two distinct classes of cases are mentioned, for each of which the statute has prescribed a distinct and substantive remedy, 1st, where chattels are wrongfully taken, and 2d, where they are wrongfully detained. We can regard the statute in reference to the first class of caaes in no other light than as a re-enactment of the common law; but for the second a new statutory remedy is given, applicable to cases where, from peculiar circumstances, .the plaintiff cannot be compensated in damages for the chattels, .and for which the .ordinary action of replevin will not lie; and also that the plaintiff may not be compelled to trust to the solvency of the defendant as in trespass, trover and other actions, of like character. It is clear that under this construction of the statute, the remedy provided by i.t in all cases where a wrongful caption- or taking is complained of, is the common law action of replevin, applicable to the same cases, subject to the. same pleas, and requiring the same proofs, and that the remedy given in cases of unlawful detention is a new remedy resting alone upon the statute for its support, dependent upon it for its existence, and when adopted must be strictly pursued.” The defendant in error had his choice either to pursue the remedy .pointed out by the common law, or to adopt that provided by the stat-ule for the wrongful detention. ' lie has elected to pursue the common law remedy, and must consequently be held to the proof necessary to support that form of action. In Pangburn vs. Partridge, 7 John. Rep. 143, Mr. Justice Van Ness, in delivering the opinion .of the court, said that'“possession .of the plaintiff and an actual wrongful taking of the defendant are the only points 'requisite to support the action, and also that the old authorities are that reple-vin lies for goods taken tortiously, or by a trespasser, and that the .party injured may have replevin or trespass at his election. This is replevin in the cepii, to which the plea of non cepil was pleaded, and upon which issue was joined. Under the issue thus formed, the fact of the tortious taking is .clearly and of necessity brought •into litigation. If this view of the law be correct, and that it is we entertain no doubt, then it is manifest that the circuit court prred in instructing the jury that the plaintiff below was not bound •to prove a taking of the property in controversy.

Judgment reversed.,  