Cobb, J.
T. I. Mitchell, describing himself as “agent,” brought an action against the Georgia and Alabama Railway, to recover possession of a certain described lot of lumber alleged to be in the possession of the defendant. The petition averred that the plaintiff was the owner of the property sued for, and that he had demanded the same of the defendant, who had refused to deliver it to him or to pay him the profits thereof. At the trial the plaintiff testified that he was in possession of the property described as agent for his wife, and that he had no •other interest therein; that he had the lumber loaded on one of the cars of the defendant, intending to sell it to one Gibbs if he paid cash for it as he agreed; that Gibbs did not pay for the lumber, and the defendant, before delivery to it, and without authority of plaintiff, shipped the lumber to Gibbs; that plaintiff made a demand on the defendant for the lumber, but it refused to deliver the same to him. At the conclusion of the evidence the court granted a nonsuit on theground that the evidence showed the title to the property sued for was in the plaintiff's wife, and that he had no such possession as entitled him to recover. The plaintiff then offered an amendment inserting in the petition the name of his wife as usee. The court refused to allow the amendment, and the plaintiff sued out a bill of exceptions complaining of this refusal and of the granting of a nonsuit.
1. The exception to the granting of a nonsuit brings up for determination the question whether a person in possession of a chattel as agent for another,- and having no special property or interest therein, can maintain against a person wrongfully converting the goods an action of trover. A proper solution -of this question requires a somewhat extended examination into the nature of some of the actions which were at common law employed in cases of injury to or interference with the personal goods of another. Our action of trover is purely statutory. In McBain v. Smith, 13 Ga. 315, Judge Warner said that it was a substitute for the old common-law action of detinue; while in McElhannon v. Commission Co., 95 Ga. 670, Mr. Justice Atkinson said that it combined some qf the character[762] istics of both of the comraon-law actions of trover and detinue. We think it perhaps more accurate to say that our action of trover may be employed in any case in which replevin, detinue, or trover could be used at common law. We shall therefore inquire into the nature of these three forms of action, with a view to ascertaining what persons were authorized to maintain them. Replevin was employed to recover goods unjustly taken and wrongfully detained. It was generally used in cases of distress, when the person whose goods were seized gave security and replevied the property, in which event he was bound to bring replevin against the distrainor. 3 Bl. Com. 146 et seq. It seems, however, that it could be brought in any ease where the owner had goods wrongfully taken from him by another. 1 Chitty, PI. (16th Am. ed.) *181; Stephen, PI. (Heard) *20. And in many of the States the action of replevin is by statute employed to recover personalty in any case in which possession is wrongfully withheld from the person entitled thereto. In this form of action at common law the goods themselves could be-recovered, with damages for their wrongful detention. The action of detinue was used to recover goods wrongfully detained, though lawfully taken. In order to maintain this form of action it must have appeared, (1) that the defendant came lawfully into possession, (2) “that the plaintiff have a property,” (3) that the goods were of some value, and (4) that they were capable of identification. In this action the plaintiff recovered the goods themselves, if they could be had, and if not, their respective values, and also damages for the detention. The gist of this action was the unlawful detention. 3 Bl. Com. 151. The common-law action of trover and conversion lay to recover damages equal to the value of the goods wrongfully withheld, but not the goods themselves. The gist of this action was the unlawful conversion. 3 Bl. Com. 152. Under our action of trover the plaintiff may elect whether he will take a verdict for the property or its value, or for damages alone, or for the property alone, and its hire, if any. Civil Code, §5335.
It is -well settled that; to support any one of the three common-law actions, the plaintiff must have had either a general or special property in the goods seized. “To support replevin, [763] the plaintiff must, at the time of the caption, have had either the general property in the goods taken, or a special property therein.” 1 Chitty, PI. 239, *183. “It is a general rule, that the plaintiff must have the property of the goods in him at the time of the taking.” Coke upon Litt. 145 b. See also Sanford Mfg. Co. v. Wiggin, 14 N. H. 441, s. c. 40 Am. E. 198; Beckwith v. Philleo, 15 Wis. 223; Pattison v. Adams, 7 Hill, 126, s. c. 42 Am. D. 59; Walpole v. Smith, 4 Blackf. 304. To maintain the action of detinue it must appear “that the plaintiff have a property.” 3 Bl. Com. 152. “It seems to be a general rule, that the plaintiff must have a general or special property in the goods at the time the action was commenced, in order to maintain detinue.” 1 Chitty, PI. *137. See also 6 Ene. P. & P. 645 et seq. In reference to the common-law action of trovei’, Mr. Chitty says that in order to support the action the plaintiff must at the time of the conversion “have had a complete property, either general or special, in the chattel; and also the actual possession, or the right to the immediate possession of it.” 1 Chitty, PI. *167. And on the next page he says: “Without an absolute or special property, this action can not be maintained.” See also 26 Am. & Eng. Ene. L. (1st ed.) 744. In this State the general rule is, that in order to maintain trover the plaintiff must show title in himself. Gilmore v. Watson, 23 Ga. 63; Jaques v. Stewart, 81 Ga. 81; Palmour v. Fertilizer Co., 97 Ga. 244. While a property in the goods, either general or special, must appear, to authorize any one of the three forms of action, “ in an action of replevin against a wrong-doer prior possession is alone sufficient to enable the plaintiff to recover.” Shinn, Replev. §200. 'See also 18 Ene. P. & P. 505; Cobbey, Replev. § 423. The same is true of trover. In discussing what is meant by having a special property in a chattel, Mr. Chitty says: “It is a general rule that the bare possession of goods without any strict legal title confers a right of action against a mere wrong-doer, having no right, and not clothed with any authority from the real owner.” 1 Chitty, PL *170. “Possession is prima facie proof of ownership of a chattel not unlawfully acquired, and, vrhatever the interest of the possessor in the thing may be, is sufficient to enable trover to be maintained as against all the world except the rightful owner, for a con[764] version committed in respect to it.” 26-Am. & Eng. Ene. L. 748. See also Broom’s Com. (9th ed. by Arch. & Col.) 912; 1 Smith’s Lead. Cas. 632. This principle is well settled, and has been incorporated in our code in the following language: “Mere possession of a chattel, if without title, or wrongfully, will give a right of action for any interference therewith, except as against the true owner or the person wrongfully deprived of possession.” Civil Code, § 3886. This section, as stated, is but a codification of the common law, and the principle intended to be announced therein is the same as that above quoted from Chitty and the Encyclopaedia. As this case turns, to a large extent, on the construction of this section, it is necessary to ascertain the meaning of the words “mere possession” asused therein.
As a general rule, as is laid down in the decisions from this court, cited above, a'plaintiff in order to recover in trover must show title in himself. Possession is presumptive evidence of title, and becomes conclusive evidence against a mere wrongdoer; he not being allowed to set up the “jus tertii.” Dicey, Parties, mar. p. 356, citing Jeffries v. Great Western R. R. Co., 25 L. J. 109, 110, Q. B., in which the judgment was rendered by Lord Campbell, who, in his opinion, uses'this language: “The law is, that if a person is peaceably and quietly in possession of a chattel as his own property, a person who takes it from him having no good title is a wrong-doer, and such person can not defend himself by showing that the chattel is not the property of the plaintiff, but the property of a third person.” Whatever language of Lord Campbell there is in the opinion in that case which seems to support the proposition, that an agent who is in possession can maintain an action in his own name, must be qualified by the language above quoted, in which the learned Chief Justice states that the case with which he is dealing is one where the plaintiff was in possession of the chattel “as his own property.” An examination of the authorities has satisfied us that the possession referred to is a possession in the possessor’s own right, or under a claim of property, either general or special. Even in the case of a thief, who according to many authorities can maintain trover, or a finder, or a bailee, the possession which the plaintiff claims is for himself and in his own right. It can not be a possession [765] simply as the agent or servant of another, who has no interest-in the property itself. The action of replevin “can not be maintained by one whose, right of possession is for another : as for example, an agent or servant. The plaintiff must beentitletl to possession in his own right.” Shinn, Replev. § 32. “A mere servant, or a depositary for safe custody, has not such property as will support this action, his possession being that-of the master or bailor.” 2 Gr. Ev. (15th ed.) § 561. “ A mere servant who has possession at the will of the owner has not such a right of possession as will sustain the action.” Cobbey, Repl. 224, § 423. . Mr. Chitty states that the rule, that a mere-servant can not maintain trover, is an exception to the general rule, that bare possession will authorize it. 1 Chitty, PI. *170. “ The possession by a mere servant of his master’s goods-is ordinarily deemed to be so far the possession of the master ás to give the servant no right of action against one who disturbs that possession.” Mechem, Ag. § 765. The case of Lockhart v. W. & A. R. Co., 73 Ga. 472, seems to be almost decisive of this question. In. that case the plaintiff brought suit-against the defendant for “damagesto personal property,” the subject-matter of the suit being an oil painting of a landscape. On the trial it appeared from the testimony for the plaintiff that the picture belonged to her brother, who had given it to-her to keep until he called for it, and if he never did so, it was-to be her property. It was held that as the plaintiff had no-property, either general or special, in the picture but was a-mere borrower, she could not maintain the action. The plaintiff was in possession of the picture, but her possession was in the right of another, and no presumption of ownership arises from such a possession. The principle that, when possession is shown, a mere wrong-doer could not set up the jus tertii, as-the presumption arising from such possession would be conclusive against him, was recognized, but it was ruled that that principle has no application to a case in which the plaintiff' shows that he is not entitled to possession in his own right.
In the case of Philips v. Robinson, 4 Bing. 422, the declaration alleged that the plaintiff delivered to the defendant certain deeds belonging to the plaintiff. The defendant pleaded that the plaintiff was not lawfully possessed of the deeds as of [766] his own property, and that they were not the property of the plaintiff. At the trial it was proved that the deeds in question were the title deeds to an estate belonging to the plaintiff’s wife, and that the plaintiff, or his agent, had delivered them to the defendant. It was held that the plaintiff could not'maintain detinue for the deeds, or their value. Park, J., said: “In order to support an action of detinue, the plaintiff must have a general or a special property in what he seeks to recover.” Burrough, J., remarked: “At the time of this action the plaintiff had no interest in these deeds; they were of no value to him ; and, therefore, the nonsuit was right.” See also Solomons v. Bank of England, 7 East (New ed.), 79; De La Chaumette v. Bank of England, 9 Barn. & C. 100. In the case of Williams v. Millington, 1 H. B1. 81, it was held that an auctioneer could maintain against a buyer an action for goods sold and delivered, but it was said that he stood in a different relation to a bare servant or shopman, as he had possession coupled with an interest, which was a lien for the charges of the sale, the commission, and the auction duty, which he was bound to pay. In Ludden v. Leavitt, 9 Mass. 104, it was held : “Where a sheriff, having attached personal chattels on an original writ, delivers them to a third person for safe-keeping, such person is the mere servant of the sheriff, and has no legal interest in the chattels; he can not, therefore, maintain trover for them.” In Scott v. Elliott, 61 N. C. 104, it was held: “Possession of a chattel by one who holds for himself, in respect to either a general or a special property, will support replevin or trover ; such possession for another, will not support an action.” In Harris v. Smith, 3 Serg. & B. 19, it was held: “A mere servant, who has the care of goods, can not maintain replevin; but if they are delivered to him by the master, as bailee, he may.” In Clark v. Skinner, 20 Johns. 465, it was held that the owner of goods can maintain replevin against a sheriff or other officer who takes them from the custody of a servant or agent of the owner by virtue of an execution against such servant or agent; “the actual possession of the property in such case being considered as remaining in the owner, and not in the defendant in the execution.” In Dillenback v. Jerome, 7 Cowen, 294, it was held: “One who receipts property levied upon by a con[767] stable or sheriff, by virtue of an execution, and engages to deliver to the officer, has neither a general or special property. He is the mere servant or agent of the officer, and can not maintain trover in his own name, though the property be taken and converted by a stranger.” See also the following cases: Thorp v. Burling, 11 Johns. 285; Stephenson v. Little, 10 Mich. 433; White v. Dolliver, 113 Mass. 400; Donahoe v. McDonald, 92 Ky. 123; Linscott v. Trask, 35 Me. 150; Tuthill v. Wheeler, 6 Barb. 362; Waterman v. Robinson, 5 Mass. 302; Brownell v. Manchester, 18 Pick. 232; Rosentreter v. Brady, 63 Mo. App. 398; Baker v. Campbell, 32 Mo. App. 529; Rockwell v. Saunders, 19 Barb. 473; Faulkner v. Brown, 13 Wend. 64. These authorities abundantly settle the proposition, that a mere agent or servant, having no special property therein, can not, on bare possession alone, maintain an action to recover goods from a person wrongfully in possession; and this for the reason that his possession is that of his principal.
The rule that a person wrongfully in possession of goods taken from another can not set up title in a third person, or dispute the plaintiff’s title, is perfectly consistent with the principle above announced. As stated above, a general or a special property in the personalty is essential to maintain trover, but as against a wrong-doer possession will be held to be conclusive evidence of such a property. But certainty a defendant, though a wrong-doer, will be permitted to dispute the possession itself ; and he does this successfully by showing that the bare physical possession upon which the plaintiff relies was not in his own right but in that of another. As the plaintiff’s right of recovery rested, in the present case, upon bare possession, and as the evidence introduced in his behalf shows that such possession was in the right of his wife and not in his own right and that he had no interest whatever in the property, the presumption of ownership arising from possession was rebutted, and, under the authorities above referred to, he was not entitled to recover. It is said, however, that the Civil Code, § 3038, changes the rule recognized by the decisions and authorities above referred to. That section is as follows: “An agent having possession, actual or constructive, of the property of his principal, has a right of action for any interference with [768] that possession by third persons.” If this section be construed literally, its language is such as to support the position that the possession of an agent is sufficient to sustain an action in his own name against one who wrongfully interferes with such possession. The rule on this subject as it existed at common law is thus stated in the 1 Am. & Eng. Ene. L. (2d ed.), 1166: “An agent who is in possession of or entitled to the possession of property belonging to his principal, by virtue of the agency, and haying a special or general property therein, has a right of action against a third person who unlawfully injures or converts such property.” The rule is stated in substantially the same language in Mechem on Agency, §765. The provisions of section 3038 of the Civil Code appear, for the first time in the statute law of this State, in the Code of 1863. It has been embodied in the same language in every code since adopted. If this section be so construed as to authorize an agent to maintain an-action in his owm name on a possession which is founded on nothing more than a right of property in his principal, the effect of the section was to make a radical change in the law as it existed at the time of the adoption of the Code of 1863. The authorities above cited demonstrate clearly that there can be no escape from this proposition. Was it the intention of the codifiers in framing this section, and of the legislature in adopting it, to change the law existing at the time the code was adopted, or was it intended merely as-declaratory of the law as it then stood ? The codifiers were not authorized to make new law, but “to prepare for the people of Georgia a Code, which should as near as practicable, embrace in a condensed form, the Laws of Georgia, whether derived from the common law, the Constitutions, the Statutes of the State, the decisions of the Supreme Court, or the Statutes of England, of force in this State.” See the Preface to the Code of 1863. In Shumate v. Williams, 34 Ga. 245, 249, Chief Justice Lumpkin, in speaking of the Code, said: “It is mainly a declaratory exposition, in a concise and systematic form, of the body of law's, common and statute, which the codifiers found already established.”
In Mechanics’ Bank v. Heard, 37 Ga. 401, 412, Judge Harris uses this language: “It should be kept in mind that the codifiers were commissioned to embody the principles of the com[769] mon law in force in Georgia; they had no authority to originate new matter for legislative sanction. It therefore is incumbent on those who assert that they went beyond their commission . . to prove it.” In Phillips v. Solomon, 42 Ga. 192, 195, Judge McCay said: “It must be remembered that the object of the codification was not to make laws, but to codify or declare those already in existence: Act of 9th December, 1858. It is true, that in some instances the Code has changed the law, though these changes are less frequent than is supposed. But, in the main, it can not be doubted that the Code is to be looked at as what it purports to be, a codification of our laws, as they existed at the time, and its provisions are not to be considered as changing the law, unless the intent to change be clear.” In Gardner v. Moore, 51 Ga. 269, the same Judge remarked: “ The Code is not to be construed as changing the old law, unless the change be very apparent, and it would be specially dangerous to take the definitions of the Code as absolutely accurate, and as excluding the common-law definitions, unless it be plainly manifest that the intent was to make an exclusive and inclusive definition.” The language of Judge McCay in 42 Ga., supra, was quoted approvingly by Mr. Justice Hall in City of Atlanta v. Gas Co., 71 Ga. 119, 120, who took occasion to add: “Many similar views may be found scattered through our reports and the reports of other States, but these are deemed sufficient. "We are well satisfied that, in this instance, no change of the provision in question was intended, or was in fact made.” In that case the court was dealing with a section of the code which apparently changed the existing law. In Gillis v. Gillis, 96 Ga. 1, 10, Mr. Justice Lumpkin, in dealing with a section of the code which it was claimed altered the existing law with reference to witnesses attesting wills by their marks, used this language: “There is no act of our legislature or decision of our Supreme Court, before the adoption of our code, that ever changed, or attempted to change, the old law as to witnesses attesting wills by their marks; and there is at least one case decided by this court, before the code went into effect, which is in harmony wdth and upholds that law. See Horton v. Johnson, 18 Ga. 397. How, then, can it be said that the compilers of our code intended to incorporate into it any other than the [770] prevailing rule of law? It is not to be presumed that they, learned in the law, would, except in rare instances, themselves make a rule of law, when they were only empowered to codify existing laws of force in this State.” In Lamar v. McLaren, 107 Ga. 591, 598, Mr. Justice Fish uses this language: “The rule is that, unless the contrary manifestly appears from the words employed, the language of a code section should be understood as intending to state the existing law, and not to change it.” The court was dealing with a section of the code in that case which, if construed literally, clearly changed the existing law.
• In Rome Grocery Co. v. Greenwich Ins. Co., 110 Ga. 618, Mr. Justice Lewis, in dealing with a section which, according to its literal terms, changed the existing law, says: “The object of the codifiers in compiling the first code was to embody, not only the statute law, but the common law of force in this State. As there was no effort to codify any statute upon that subject by the codifiers, we think it clearly proper, in determining the meaning of this section, to ascertain what was the general law of force in this country at the time of the adoption of the code.” The ruling in that case followed what was the law existing at the time of the adoption of the code, and not what the terms of the section, literally construed, wmuld have required. The rule on the subject under investigation in the present case being well settled when the code was adopted, and there being no sufficient reason suggested why such rule should not have been allowed to remain unchanged, and it not being “clear” that there was air intent to change the law on the subject, the section of t'he Civil Code now under consideration should be construed as a mere codification of the existing law; and, therefore, the word “agent” as used therein should be held to mean an agent who has a special property or interest in the chattel. Without such an interest, his possession is the actual possession of his principal, as was held in Hillyer v. Brogden, 67 Ga. 24. The -word “agent” appearing after the plaintiff’s name in the petition is merely “descriptio personas” and is to be treated as surplusage; and hence the action is to be regarded as one brought in the name of the plaintiff as the person entitled to recover in his own right. Civil Code, §2998; Owsley v. Woolhopter, 14 Ga. 124; McDuffie v. Irvine, 91 Ga. 748; Atlanta Brewing Co. [771] v. Bluthenthal, 101 Ga. 542; Lester v. McIntosh, 101 Ga. 676. So treating it, the action was not maintainable, and there was ho error in awarding a nonsuit.
2. When the plaintiff relies on title to recovér possession oí personal property wrongfully withheld from him, he must show a legal title; a mere equitable title will not suffice. When, therefore, it appears that the legal right of action is not in the plaintiff, he has no right of action at all, either in his own name or in that of another. He can not sue for the use of the person who has the legal right of action but the action should be brought in the name of the real plaintiff. See Richmond & D. R. Co. v. Bedell, 88 Ga. 591 (3); Cunningham v. Elliott, 92 Ga. 159. “It is well settled that an action of replevin can not be brought in the name of one person for the use of another, for the action involves nothing but legal rights, and if equities are tobe settled, another form of action must be resorted to. While the name of the usee might be treated as surplusage, a recovery can only be had where it is shown that the plaintiff is entitled to recover. The usee’s title can. not be considered in the action, and if the plaintiff have no title, .the action must fail.” Cobbey, Replev. §425. See also 18 Enc. P. & P. 507; Moore v. Watson, 40 Atl. (R. I.) 345; Myer v. Warner, 1 So. (Miss.) 837 ; 20 Am. & Eng. Enc. L. 1056, 1057. What is said above applies also to the action of trover. 26 Am. & Eng. Enc. L. (1st ed.) 744. There was no error in rejecting the amendment.
Judgment affirmed.
All the Justices concurring, except