#### Josiah Wright, Plaintiff in Error, v. John Armstrong, Defendant in Error.

ERROR TO MADISON.

To maintain the action of replevin there must be an unlawful talcing from the actual, or constructive possession of the plaintiff.

Armstrong, the plaintiff in the court below, sued out a writ of replevin against Wright for a horse, to which Wright pleaded non cepit; secondly, property in one Eliliu Mather ; thirdly, property in himself; and lastly, the statute of. limitations. On the trial a bill of exceptions was taken, from which it appears that the plaintiff proved that the horse in question was the property of his wife,—before her intermarriage with him, and while she was a minor, the horse strayed from her, and was not in her actual possession for five years before the commencement of the suit. The defendant proved that the horse in question was in the possession of Philip Creamer for about three years, who sold and delivered him to one Lock, who sold and delivered him to Elihu Mather, who sold and delivered him to the defendant. It was claimed that the horse had strayed from the plaintiff more than five years previous to the commencement of this suit, during a part of which time the plaintiff’s wife was a minor. No other taking was proved on the part of the defendant than the aforesaid sale and delivery, except that it was proved that Creamer took the horse into his possession after it strayed from plaintiff’s wife. The jury found the property in the plaintiff. A motion was made, on this proof, to direct a nonsuit, which the court overruled, but gave judgment on the verdict for the plaintiff, to reverse which judgment a writ of error was taken to this court, where it was assigned for error, that the court ought to have directed a nonsuit, for the reasons, first, because no actual taking of property in the plaintiff’s declaration mentioned, was proved to have been done on the part of Wright, the defendant; second, that no tortious taking of the said property was shown on the part of said Wright; and third, that no taking was proved from the plaintiff’s possession by any person.

Opinion of the Court by

Justice Browne.

This was an action of replevin, brought against the plaintiff in error for the unlawful taking of a horse. The, defendant pleaded, besides property in himself and property in a third person, non cepit, and the statute of limitations. On the trial before the circuit court of Madison county, the defendant in error, *173the plaintiff helow, proved the horse was claimed to belong to plaintiff’s wife. That it was also claimed by Philip Creamer, who sold the horse to one Lock, who sold it to one Elihu Mather, who sold it to the defendant. This was all the evidence of taking by the defendant.

Starr and Cowles, for plaintiff in error.

Blackwell, for defendant in error.

To maintain the action of replevin, there must be an unlawful taking from the actual, or constructive possession of the plaintiff, which has not been proved. The judgment must therefore be reversed, (a) , (1)

Judgment reversed.

(a)

Replevin lies for any unlawful taking of a chattel, and possession by the plaintiff and an actual wrongful taking by the defendant, are necessary to support the action. Pangburn v. Patridge, 7 Johns. Rep , 140.

_ The action of replevin is grounded on a tortious taking, and sounds in damages like an action of trespass. Hopkins v. Hopkins, 10 Johns. Rep., 369.

At common law, a writ of replevin never lies, unless there has been a tortious taking, either originally or by construction of law, by some act which makes the party a trespasser ab initio. Meany v. Head, 1 Mason, 319.

The plea of non cepit puts in issue the fact of an actual taking; and unless there has been a wrongful taking from the possession of another, it is not a taking within the issue; and a wrongful detainer after a lawful taking, is not equivalent to an original wrongful talcing. Ibid.

A mere possessory right is not sufficient to support this action; there must be an absolute, or at least a special property in the thing claimed. 5 Dane’s Dig., 516.

(1)

The present statute in relation to replevin is as follows : “ Whenever any goods or chattels shall have been wrongfully distrained, or otherwise wrongfully taken, or shall be wrongfully detained, an action of replevin may be brought for the recovery of such goods or chattels, by the owner or person entitled to their possession.” Purple’s Statutes, p. 868, Sec. 1. Scates’Comp., p. 226.