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, .
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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.