Gray v. Nations, 1 Ark. 557 (1839)

Jan. 1839 · Arkansas Supreme Court

1 Ark. 557

Thomas W. Gray et al against William A. Nations.

Appeal from Pulaski Circuit• Court.

The rule .that one co-defendant cannot be witness for bis co-defendant, and that a party on the record cannot testify in.the case, is subject to this exception — That if there is no evidence adduced against one -of the defendants, where several are joined' in an action of trespass, the court will direct the jury to find for the defendant, and then permit him to be introduced as a witness. . /

Jf several persons be proved to be .co-trespassers, by competent evidence, the declarations of one, as to. the motives and-circumstances of the trespass, will be evidence against all who are proved to have combined together for the common object.

-Where the record shows that one co-defendant had possession of part of.the goods taken, and that he was present when the pretended sale of the same goods was made, and when they were taken away, any admissions or state- ' ments m.ade by him, showing a eomnymity of design to have existed among all the defendants, and that they were accomplices in the transaction, is legitimate proof.

And’if such admissions were admitted in the court below, and the record does not .show their nature' and character, this court will presume that they were made in the presence of the other defendants, and were coupled with other circumstances and testimony, showing a community of design'and concord of action on the part of the person making them, and his co-defendants,

papers filed after an appeal prayed and taken, signed by. the judge below, and purporting ¡to contain statements of the testimony, will not be regarded in this court.

In replevin, any .evidence which'shows that the defendants obtained possession of the goods-, from any person not authorized to sell, is sufficient evidence of an unlawful taking. .

in replevin, under the.'Territorial Statute, the measure of damages for the - plaintiff is all the'damages' sustained- by the taking and detention of the goods. ' ' ■

At common law, the plaintiff could only recover damages for the wrongful detention of the goods, in replevin. •

A Statute is not to be taken to be in derogation of .the common law, unless the.act itself shows such to have been the inte.ntioa and object of the Legislature. '

The Territorial. Statute concerning replevin is an enlarging, and not a restraining Statute, and aut.horizest.he recovery of damages, as well for the unlawful taking as the unlawful detention.

Where plaintiff takes judgment by default, and a writ of enquiry against some co-trespassers, and before his writ of enquiry is executed, he takes a ..verdict and final judgment against the others, he will be .considered as having waived his remedy against those who are defaulted, and will be res-, trained from afterwards proceeding' on the yyiit of enquiry.

This was an action of replevin for sundry goods, wares, and merchandise, instituted in the court below by the defendant in error against the plaintiffs in error and Robert Magness and William Me Craw, The plaintiffs in error pleaded non ccpit, and judgment by default was taken against Magness and McCraw., and a writ of inquiry awarded to assess the damages as to them. Nothing more was ever done as to Magness and McCraw. Gray filed his plea at the return term, and }Jin}cson a(; the term thereafter.

On the trial of Gray and Hinkson, as appears by the bills of exceptions, the plaintiff" offered in evidence the statements and admissions of McCraw, to prove the unlawful taking by the said Gray and Hink-son of the property mentioned in the declaration, on the ground of community of design and action between the plaintiffs in error and McCraw, in obtaining possession of the property as accomplices. It had been previously proved that McCraw had in his possession a cap, and perhaps some other articles, paFt of the same property for which the suit was brought, and was at Hinkson’s house in company with Gray and Hinkson, and with Davis and Curtis, (two men who had been employed by Nations as teamsters to haul the goods to Jackson county, and who sold the goods io Gray and Hinkson,) at the time when one of the witnesses went to haul away the goods for Gray, from Hinkson'1 s, and when Davis and Curtis signed a receipt to Gray for ' the purchase money given them by Gray for the goods. Upon this state of case, the court below permitted the statements and confessions of McCraw to go in evidence to the jury.

The court below instructed the jury that any evidence showing that the defendants below obtained possession of the goods in controversy from any person not authorized to sell them, was sufficient evidence of an unlawful taking. The court below also refused to instruct the jury that the plaintiff’s damages could only be assessed for the detention of the property, from the time it came into the possession of the defendants below, to the time of bringing suit; and instructed the jury, that if they found for the plaintiff below, they would assess all the damages which accrued to him by the taking and detention of the property.

The verdict of the jury was — “ We, the jury, find for the plaintiff the sum of sixteen hundred and forty-five dollars ” — for which sum the court gave judgment.

The defendants below then moved for a new trial, on the ground that the verdict was contrary to. law and evidence, which motion was overruled, and they appealed on the ninth of October. On the 20th of October, the counsel for the plaintiff below filed a statement of the evidence, which he prayed should be made a part of his motion to instruct the jury, and incorporated together with all the papers in the case. This statement was signed by the judge, and the defendants below filed a bill of exceptions to the opinion of the judge, permitting it to be filed.

Watkins.& Fowler, for the appellants:

The first question which presents itself upon the record, is, whether the court below erred in admitting evidence of the statements and admissions of Wm. Me Or am, who was not then a party to the trial, to prove the unlawful taking of the goods by the appellants.

The broad, general rule of law is, that no man is to be bound, precluded, or prejudiced by the acts or admissions of any other person;— the exceptions to this general rule are such as are founded on obvious reason and justice, and, without particularizing, may be reduced to cases of agency where the acts of the agentare the acts of the principal, or of arbitration or reference where a man agrees to be bound by what another does or says, or of partners where several persons make themselves one for the convenience of trade, and the acts or admissions of one partner, within the scope of the partnership business, are the acts or admissions of all. In indictments and actions on the case for a conspiracy, from the nature of the action, and the secrecy of such transactions, it becomes indispensable that the acts and admissions of one conspirator, should be introduced, to throw light upon the motives and intentions of the others; but even this cannot be done, until the fact of the conspiracy is proven by other and competent testimony, and we do notrecognize this to be fairly an exception to the general rule of law above stated.

“Where there are sundry parties lo a suit, the confessions of one cannot be given in evidence, nor allowed to operate against any but; the party confessing; where there are several defendants and one of them suffers a default,' and the others plead to the action, '¿¡le confession of the defaulted defendant may be given in evidence on the trial to enhance the damages; though defaulted he is qn trial as to the quantum of damages, for the verdict ascertains che damages as to alj the defendants.” Swift's Evidence, p. 128; % Day's Con. Rep. 33. Now, here is an authority precisely in point, with this difference only in ouy favor, that by our Statute when a defendant makes default, the writ of enquiry is returnable to th<j pext term, instead of the damages being ascorlaínc'd instanterfand in this case'McCraw.was not- a party to did trial, nor did.the verdict ascertain the damages as to him, at ail. But be that-as it may, the evidence of the statements and admissions-of Wm. McCraw, were not admitted to enhance the damages, but to prove ' ° r •the very, tact .m issue, between the appellee and the appellants, wh5 were the parties to the trial, to wit: the talcing of the goods.

“Incivil cases it seercis that ah accomplice, dr jo'int’Wrong doer^ who is not a party to the record, is a competent witness on either side,Unless he is .in some way answerable’over-to the defendant, for'the consequences of his conduct,” &c.; and the author goes on to say — = “It seems now to be settled, that a joint trespasser is a competent witness for the plaintiff, although a- recovery against the'defendant would discharge the action, against himself;” and that' 'the fact of his being á co-trespasser wóuld tend to lessen his credit. In the next paragraph^ the author says, ,ctA co'-t'rcspasser, or other joint wrong'doer, who is not "a party- to' the' record, is in general a competent witness for tlie' defendant;'for the recórd would not be evidence for him in another action, and his interest is-rather'on the other side, since if the-plaintiff failed in obtaining compensation against the present defendant, he; might afterwards attempt to recover jt from-the witness; and if the’ plaintiff recovered, the witness would not bé liable to the defendant for contribution. • Where, howeVer,.a co-trespasser is made a defendant,'he is in general competent as á witness on either side. (And the authorities'on this'point are-strong, numerous, .'and all tending to the same conclusion.) Where a co-trespasser lets judgment go by default', he is a competent witness for a co-defendant; but.he- is not a competent-witness for the plaintifB YStarkie Ev. 131,2,3; Walcely vs," Hart et al,. 6 Binney, .319: Brozan et al. vs. Howard, 14 John. 119; Buller Jfisi-Pr.uis,-285-,. Gilbert’s Ev. 250;- 2 Esp. 552. 'Swift’s Law of Evidence,'73, 4/ 2 Starkie Ev. 581; Blackett vs. Weir, 5- B. & G. 389;- Doe Dem. of Harrop vs. Grech, 5 Esp. Ca. 198; Brown vs. Brown,% Taunton, 752, And see particularly, the .case Of Chapman vs. Graves, and two others, 2 Campbell, 333 — a case precisely in point, where the testimony of Frost, a co-trespasser,- who had made default.; was rejected, .when offered .to inculpate the other' defendant, and the' reasons of the rule given at large».

In view of all these authorities, if the testimony of a co-defendant in tort, who had suffered a default, could not be introduced against, (or even for,) his co-defendant on trial, a fortiori mediate and secondary evidence of his statements and admissions cannot be admit- ■ J ■ •„ , ted; for such evidence is always partial and of doubtful and suspicious character, .and for-that reason justly excluded, unless the nature of extreme cases will admit of no better testimony. If such secondary evidence coidd be admitted, then the condition of the appellants in the court-below was indeed unfortunate: stabbed in the dark by the admissions,-and statements of a witness, who was vitally interested against them; saddled with the whole burthen of damages, without even an opportunity,,of confronting that, witness by cross-examination. .Better, if the appellants, instead of pleading to the action, had abandoned the case, and awaited their fate. The court needs not to be reminded, that- “ against joint trespassers there can be butone satisfaction, and 510 apportionment of damages among the several defendants.5' ... Bi'own'vs. Allan and Other,4 Esp. JY. P. C. 15S.’ And “if ;separate sujts-be brought against several defendants for a joint trespass, the.plaintiff may recover separate judgments against each; but he can-' have but one satisfaction — and he may elect dc melioribus damnis, and issue his execution therefor against one of them. Livingston vs. Bishop, 1 J. R. 290. And thus it results that the statements and admissiors or McCrazv, who had suffered default, were inadmissiole on accou d o" Vis be'ng vitally interested, for that dama, ges would be assessed against him, though the defendants, pleading to issue, were acquitted. Cressey vs. Webb and another, I Strange, 1222.

But the evidence of the statements and admissions of McCraw were admitted on the ground of a community of interest and design, “it having been proven thatMcQ-azo had a cap, and perhaps some other small articles of the same lot of goods, at the time that Davis and Curtis signed a receipt to one of the appellants of the purchase money of the goods, (orto that effect; see bill of exceptions). Now we suggest that this bare, naked showing does not establish a community of interest and design; but if it shows any thing, it shows that something had been proven against one of the defendants whose testimony, or rather we should say, the evidence, of whose testimony was sought to be introduced, and that according to all the rules of law above stated, such evidence was inadmissible.N But all this is wholly immaterial; because by making default the defendants McCraw and Magness, admitted the tort laid in the declaration; and if, by any possibility,the appellee could avail himself of their testimony, he could only do so by entering a remitter of damages, which he did not do, but had judgment by default entered up, and a writ of enquiry of damages awarded against them.

The second assignment of errors we pass by in silence. ' '

The third and fourth assignments of errors may be considered together There is'much barrenness in the decisions, as to the measure of damages in replevin, at the common law. But the. appellee has waived any question which might arise .heré, bj adopting in his whole proceeding our statutory regulation concerning the action of replevin, except in-the one material matter of damages. Our Statute, after regulating the action of replevin at length, is clear and explicit, that “if judgment be for the plaintiff he. shall nave his damages assessed by a jury, or the court; for the detention'(tout the time the property came to the possession of the defendant to the time of bringing the action.” Dig. • Tit. Replevin and Detinue, sec. 2. In tlie face of this provision-of law, the court below refused so to instruct the jury, but instructed them “ that if- they find for the plaintiff, they are to find for .the plaintiff all the damages which accrued to the. plaintiff by the taking and detention of the goods by the defendants.”

"We claim that our Statute, clear and explicit in its terms, is not so without reason. When the Statuie gives the remedy, by replevin, “in all cases where any goods or chattels shall be taken from the possession of any person lawfully possessed thereof, without his or her consent,” it does not mean to give the plaintiff ini rep’evin dangerous and unreasonable powers. We suggest whether the common law doctrine of distress for rent or damage feasant,- is not to all intents and purpose abolished by disuse in this State; and that when the legislature so extended the remedy of replevin, it was clearly intended to make the the action of replevin similar in its operation to the action of detinue, except that in replevin the Statute requires an affidavit of the unlawful taking, as well .as having been lawfully possessed of the chattel, before it will arbitrarily divest one man of property, and vest the possession of it in another, previous to any trial of the right of property. With the exception of the unlawful taking, replevin and detinue, are co-extensive remedies; in both cases the Statute gives damages for the detention, but in neither,-for the laking. If there are any peculiar circumstances attending the taking, the plaintiff hath adéquate remedy, by action of-trespass, and the alia enormia go in aggravation. As a further parallel between replevin and detinue, in both cases, the specific chattel may be restorcd.to the plaintiff: in the one case, it is’ restored to him on mesne process, n the other, on final process; and in either case, the party remaining in possession of the chattel pending the suU', gives bond to secure the other.. .

The action of replevin would of itself seem "to- imply, that the- specific chátlel sought to be replevied has been delivered to the plaintiff. . Se/aryn, JY. P. Tit. Replevin, p. 1143. For .the' plaintiff' has his elec-, tion to bring trover, and recover the value of the goods in damages, and the presumption is, that he will elect the best form of action; hut in the present case such speculations are needless* because the return of the sheriff shows that the goods were delivered to. the plaintiff.-— Suppose the goods to have been worth $2,000 cost and carriage, with an advanceof 20 or 25 per. cent, by way of profit: they are charged in the declaration to have come to the possession of the defendants, on. the 15th of January, 1838;' the writ was issued on the 22nd, and returned executedtby the sheriff on-the 23rd of the same month, showing that the defendants had possession of• the goods for one -week-jet the verdict of. the jury gave the plaintiff $1644 damages, so that by this proceeding, the plaintiff has not only had a return of his goods, but has recovered nearly their value in damages for this brief detention»■ • It moreover appears from the declaration,.that the goods replev-ied were of such. an . inanimate nature,, that. the. plaintiff; by their detention, for a short space of time, could not have been greatly darn-nified. If the property sought to be replevied were a steam boat, or the lite* in good business, then'the plaintiff would be clearly entitled to recover such reasonable damages for'the detention, as he might have suffered,, by being deprived of. the .use. of the boat; while she was in the possession of the defendant. .

These facts appearing in the record clearly show, that the verdict of the jury in this; case was outrageous and oppressive, and that the . instruction of the court and the refusal to instruct, set out in the third and fourth assignment of errors, is manifestly erroneous. ■

Of. this motion the appellants- took no' notice, except, to file their bill of exceptions by way of protest. It would be an insult-to your Honors to argue, that the evidence in a-cause can never.come.up-before this court,'unless ilis brought up legitimately by exceptions to. evidence, demurrer to evidence, or for á; variance, or by motion for a new trial upon'.the ground that the verdict, is contrary .to evidence. '

.- We Cannot travel out of the record'to slate the condition in life of the appellants; hilt we. ask.for the magnitude and importance of the case, as exhibited by the record, that patient and thorough investi-' gation, which your Honors might not consider due to the principles involved.

Tíiapnalii & Cocke, contra:

' During the progress of the trial on the issue joined, the appellants' took various exceptions to the opinions of the court. The jury returned a verdict in favor of the appellee .for $,‘1,645 in damages, and afterwards, at the same term, the counsel of the appellee presented a draft of the evidence given upon the tria!, and the court upon his motion made it a part of the record, to which the appellants excepted.— In the absence of any pifie!pie or precedent denying the authority of the court, it is not perceived how the correctness or soundness of this opinion can be successfully controverted. The appellate court will be governed more by the actual merits and general result of a cause,-than the propriety or impropriety of any interlocutory opinions given by the inferior court during the trial. An erroneous opinion.is frequently rendered perfectly harmless by the subsequent admission of testimony, that supplies the deficiency and materially changes the complexion of a cause. A party may, and frequently does, present a view of the case by incorporating a partial abstract of the evidence into a bill of exceptions, which would be entirely changed by a survey of all the testimony. No injury can he done, but may sometimes he prevented, by making the whole evidence a part of.the record;— and the Supreme Court will then be more enabled to understand and appreciate the opinions of the inferior court, and determine according to the justice of the cause. Vide G¿pens vs. Bradley, 3 Bibb. 195; 1 Bibb. 41; T Ldllell, 255; Clarke vs. Castleman, 1 J. J. Marsh. 70.

The admissions of á co-trespasser are evidence against every one who acted together and in concert with him in the commission of the trespass. 1 Saunders on PI. and Ev. 59; Rex. vs. Inhabitants of Hardwick, II East. 585; 2 Siarkie, 467; although made in the absence of-the others. Wright vs. Court, 2 Car. & Payne, 232. As to what makes co-trespassers, see 2 Siarkie, 401, 2,3.; 19 Johnson, 382; 10 Wendall, 634; 12- Wendall, 39.

The action of replevin is analogous tp, and governed by, many of the same rules that regulate the- action of trespass dc bonis asportatis, and is co-extensive with it. 7 John. 140, 3; 14 /oAn. 17; 1 Chilty, 159; 3 J. J. Marsh. 12 L

Having the goóds in possession is sufficient evidence of the' taking in replevin. Walton vs. Kersop, 2 Wils. 355; 1 Chilly PI. >159. ' It is sufficient to show that, the defendants had the‘goods in'-possessiowat the place alleged; ' 2 Saunders'1 FI. a’nd Ev. 287; 3 iStdrkie, 1296.

Under the general 'issue in replevin, which'admits property inthe plaintiff, see'2 Sav.nders) PL and Ev. 2S-1. ■" ■ ' V •' “

The defendant is a wi'ong doer, and his-possession is unlawful, unless he takes the goods by the authority'of "the owner. 1 Saunders’' 'Rep. 317, c.‘; 'Chambers vs. Donaldson, 11 East. 65; Graham V¿í Peat, 1 East. 2Í l;' Hasher vs. Bi,'/check, 3 Burrows, 15567

The plaintiff is entitled to judgment for the full amount of the injury; and all and each one of the co-trespassers, even- if not'fried at* the same time. Sodinsky. vs. McG'ce. 'iJ. J. Marshall, '269. ' ■ ■■'-: -

The judgment is for the' talcing átid detention of the goods. ' *'

The record shows a motion tor a hew trial of the cause still pending, and consequently on that ground the appeal must be disrhissed. -

Uíck-lNsoN, Judge,

delivered the opinion of the court:,

This is an action of replevin; ■ • -‘ The declaration is in the usual?form. On the return of the writ, the appellants appeared and pleadéíhñoa cepit, to which théré 'was a replication and issue,' and judgment rerfe dered in-favor of the appellee ;-to reverse which an appeal is how prosecuted in this court. On-the trial-op the ca’use at the.'October term, 1838, judgment was taken hy'default against^'William McCraw and RoberlMagnás-, có-defendants, and a‘Writ of enquiry awarded.— Whether the writ of enquiry was-ever executed .or. not, we are at a loss to’ determine; for the record does-not show that any further-proceedings were afterwards had against- them. During the progress of the trial, several bills'of-exceptions1 were filed to the opinion of.the court by the appellants, and the assignment of errors presents the questions of law that were? inade in the court below. For the appellants, it is contended on thé first assignment, that the evidence of McCraw, offered by the appellee'in support Of his action, was inadmissible'; he being a co-defendant upon the record. The bills of exceptions set forth, that the testimony of McCrazo consisted in statements and admissions that conduced to prove the unlawful taking by Gray and Hinkson of the property or goods mentioned in the declaration, on the ground of community of design between Gray, Hinkson, and McCraw, in obtaining possession of the goods; it being proved that McCrctw had in his- possession a cap and some other small articles ' ^ ’ll 1 . * belonging to the lot of goods for which-fche suit is brought, and that he was at Hinkson’s in company with .Gray and Mi/tkmrt, where Davis and Curtis .signed a receipt to Qray Tor the. purchase' money given for Said,goods; and that he was also there when the goods were hauled away for Gray. It has been often .ruled in this court, and the soundness-of the doctrine cannnot be controverted or .denied,that ait legal presumptions operate in support of the verdict and judgment below, unless the same be manifestly erroneous,hysome affirmative matter contained, in the record itself, or from some, other facts andpircumstances that the- ' court- is bound judicially to, 'take notice. oL This. Bgiffg the case, we are hound to presume every thing in favor of thé verdict and, judgment. of the Circuit Court. . The 'rule .that .one: co-defendant canhot .be witness for his co-defendantj or.that a party oh the record cannot testify in the case, is subject to this exception: -for instance, if there is no evidence adduced against .one of the defendants where several are joined in an action of trespass, the court will direct the' jury to'find a’ verdict for that defendant, and then permit him to he introduced as- a ■witness; for if this was"not ,the case', by.--joining'several defendants in trespass or thé. like, - the plaintiff would- .thereby ; exclude from the .consideration of the jury .evidence that-was- in every, why. important arid competent; Thé. issue in.this case, was non cepit, and therefore it was incumbent on. the .plaintiff-to provethe taking of- the goods,or. part Of them, in thé place specified in the-declaration;- but it is sufficient under this issue to prove,a detention ofthese-goods- by the defendant in thát place. 2 Slarkia, 129.').’ ’ -And wbát evid.encé could hé more satisfactory than the admissions, of. the defendants themselves.i for itis well settled, that- if seyéral be proved .to,ffé co-tréspássér¿ by Competent evidence, the declaration, of .one as to the motives and circumstances of the tréspáss, will be evidence against all whó are proved to have, combined together, for. the Gommon object.. The record in. this case shows that part of the goods were.in .possession of;McCrazb,.' ■ that he-was present when the. pretended sale, was made, and whén they were. taken away; and any admissions or siátérhents that• he made, showing, a community of design to have, existed among all the -. defendants, and that they were accomplices • in. the. transaction, was legitimate proof, ’ The bill of exceptions, wholly fails tó.set out- the extent and character of 'these admissions.'. We are bound therefore to presume that they were made in. the. presence of Gray and Hinkson, and coupled with other circumstances and testimony showing a coin-manuy of design and concert of action on the part ot McCrcrjJ and the appellants, and therefore proper and legitimate evidence for the consideration-of the jury. It may got be amiss to stafelñ ibis stage of the examination, that there are tvro papers attached to the record, and which arc signed by ¡be judge, purporting.to give.a .detailed statement of the evidence or testimony adducéd on the trial.1 ' We cannot regard tbem as constituting any ’jpart of ?he record',-fbr they were fried, one on 19th, the other oil the 20th of October, 1838, and the record shows that prior to that time, towrlyou -the T7ifr day of the same month-, an.appeal had been regule dr prayed and taken; and. it «loes not appear that‘these exceptions were taLeii curing the'trial, dr íapoffla®y motion «tacé piev'ous -to ice granting of the Appeal; consequently, they cannot be iega’ded ás romorisióg an art of the récord; land it is there me improper to look in ¡o or give any. opinion upon these statements. The second-assignment quesuousihe opinion of the court, íniñstiocíing the jury “that'any evidence which showed that the appellants obtained possession of the goods from any person not authorized to sell,‘was sufficient evidence of an unlawful taking by the appe^ants.” •

It was certainly competent for lb e plaintiff to show that be had a general and special property in the goods, and that the defendant had obtained possession through the instrumentality ofány person who had no authority to sell, or to deliver the possession. If the goods were the property of the appellee, and the appellants obtained possession of them, without authority of law, surely these facts or circumstances were calculated to prove an unlawful taking by the appellants, and, when coupled with that testimony, would amount to full and conclusive proof of an unlawful taking. The court therefore rightly ■ instructed the jury, that any evidence that showed an unlawful taking by the appellants, was competent proof in the cause. The third and fourth assignments maybe considered together. 1st, In refusing to instruct the jury that if they find for.the plaintiff, they are to assess his damages only for the-detention of the property, from the time the . same came into the defendant’s possession, to the time of bringing', the action; and in instructing them that they aré to find for the plaintiff all the-damages which he had sustained for the taking and detention of the goods. In order to determine the question correctly, it is necessary to consider. the ■ nature and character of the action of .replevin, whicji i$ analogous to, and.governed by-. many of thesame rules that regulate, the action of;tfespass, de . bonis aspqrtatis, and is co-extensiye with it; foritisjaid down by.Boagkstone that the taking and detaining, a. man’s goods ;are • respectively trespasses, Archbold's Prac. 194. Jt-is stated that in replevin a.verdict for the plaintiff gives .damages precisely as in. trespass. At common law. the action.of replev-in was .brought onjy for. the restitution of goods uníawfully talcen, with damages for-the loss sustained. by the. invasion of the parties’ rights, and was generally founded upon a distress wrongfully taken,' andwith-.out-sufficient excuse; .and .as the goods .weredejiyered to the.owner, ■he could only-.recover damages -for the. unjust detention ii;om the time the same came, into his possession,.until, the-bringing of the action, . and, not for.the caption; because the original taking was .unlawful.-— , This rule was-based upon the principle, that, as such original taking ,%was lawful,, it, wo.uld be unjust, that -the plaintiff should recover any ■damages other,,than for such detention; for that is the gist of the action. 2nd Chitty's Blackstone, 146, 151; Chitty's Pl. 146; Coke Littleton, 145, b. The question now recurs, does our- Statute enlarge .the common daw;,, or. is it in derogation-of . k? ip determining this point, it necessarily tests the correctness of the instructions given to.the ..jury in the court below. Jt.is a rule of. sound, legal 'construction, fortified, by authority, and reason, that a Statute shall not be taken in dero- . gation of the common-;law, unless the act.-itself-shows such to.have been the intention- and - object,of the Legislature. The proceeding ■in this,case is prosecuted-under our Statute, and that it is an enlarging and not a restraining Statute, the act. itself clcarh demonstrates; for •it declares.that in all cases where, any-goods or chattels shall be taken from the possession of, any'.person lawfully possessed thereof, without .. his or her consent, it shall be lawful for such person to bring his action therefor against apy person or persons in whose hands or possession ,- they .may be found, and that before any writ of replevin shall issue, • the plaintiff shall file in the office of the clerk of the Circuit Court an affidavit, stating he was lawfully possessed of the property in the declaration mentioned, and that the same was unlawfully taken from his possession, and without his consent, within one year next preceding his application for such writ; and that he is lawfully entitled to the possession thereof. If he then complies with the other regulations of the act, he is entitled to prosecute his remedy in conformity therewith.

Here the action is clearly given for the unlawful taking, as well as for an unlawful detention, and of course if the plaintiff" is entitled to a verdict, he should be permitted to recoyer damages, as well for the unlawful taking, as for the unlawful detention, of the property. To give him a right to the action for an unlawful taking, and to afford him at the same time no remedy for such a taking, would be for the Legislature to clothe him with a right, and in effect to deny him any adequate redress for the injury sustained. By the common law, if he was entitled to a verdict, he was entitled to damages only for this detention of the property, and not for .the caption;— and the principle is fully recognized and established by our Statute: and where the Statute, in addition to this, declares the action shall be for the unlawful and. wrongful taking of the property out of the' possession of him who is entitled to it, it certainly intended to extend to hind the necessary redress for the injury it asserts he has sustained; If these positions be true, then the instructions of the court below are evidently correct. They merely assert that the jury are to find for the plaintiff all the damages which accrued- to him by the taking and detention of the goods by the defendants, which is in strict conformity to our Statute. Before the examining of the record, as previously remarked, it does not appear that any further steps were taken upon the writ of enquiry awarded against the co-defendants, nor is any question raised in point. '

There can have been no doubt but that the appellee had a right ttí prosecute his action to recover, as well against the appellants, as the other co-defendants; but he is entitled to One satisfaction: he should; after the verdict had been rendered in his favor against the appellants; have omitted to enter up judgment against them, until the damages had been awarded against the other co-defendants. Hé could theii have made his election as to which of the parties he would have had judgment against, and relied upon for satifactión; but inasmuch as, upon the rendering of the verdict against the appellants, he proceeded to enter up final judgment, it must be considered that .he had made his election to proceed against them alone, and the doing so operated as a restraint against the co-defendant, and detained him from any further proceeding upon the writ of enquiry. We are therefore of opinion, that there is no error in the proceedings, and that the judgment of the Circuit Court of Pulaski county be affirmed with costs.