#### WILLIAM SLADE, ADMINISTRATOR &c. *vs.*ABRAHAM WASHBURN & ANOTHER.

Where Wo persons tools from the plaintiff, at the same time, several negroes, one claiming and keeping possession of a certain portion of them as his own, and the other in like manner-claiming and holding possession of another portion as his; *Held*that the plaintiff could not maintain a joint action of detinue against them, though he might have had a joint action of trespass.

The gist of the action of detinue is not the 'original taking, hut the wrongful detainer.

The case of *Jones*v Green, 4 Dev. & Bat. 354, cited and approved.

Appeal from the Superior Court of Rutherford county, at Spring Term, 1842, before his Honor Judge Bailey.

The ease, so far as it is necessary to state it, was as follows: It was an abtion of detinue for a number of slaves. The plaintiff having possession of them,' the defendants went together to his house, and the defendant, Abraham, took a part of the slaves, which he claimed, and the defendant, Josiah, took another part, which he claimed — after taking the slaves, they set off on their return about the sanie time, and went for a few yards or rods the same road, and then separated, each taking the slaves claimed by himself. It further appeared that, some time after the taking and before suit brought, the plaintiff demanded of Abraham the slaves he had in possession, and of Josiah the slaves he had in possession. The defendants’ counsel insisted that the plaintiff could not recover, as no joint taking or possession of the said slaves was proved. The court charged the jury, that, if the defendants went together for the purpose of assisting each other, and took the slaves away jointly, although they separated a short distance from the house, each one taking such as he claimed, yet the plaintiff could main*415tain his action against them for the joint act; but that, if there was no concert between them, and they did not assist each other in taking the negroes, then, although they went together, and started away together, the plaintiff could not recover. There was a verdict for the plaintiff, a new trial moved for and refused, and judgment being rendered pursuant to the verdict, the defendants appealed.

fl. *F. Caldwell*and *Bynum*for the defendants,

to shew that this joint action of detinue could not be supported, cited the following authorities: 2 Leigh’s N. P. 781, 782. 3 Black. Comm. 152. *Bethea*v *McLennan,*1 Ired. Rep, 523. 2 Saund. on plead. &. evid. 530, 533. 5 Term. Rep. 112. 1 Chitt. on Plead. 116.

*Alexander, contra,*

cited 1 Chitt. Plead. 119, 120. *Garth*v *Howard,*24 Eng. C. L. Rep, 353. *Jones*v *Green,*4 Dev. & Bat. 354.

Ruffin, C. J.

In our opinion this joint action cannot be maintained; and, as that point is decisive of the plaintiff’s case, we shall confine our observations to it. If the plaintiff had brought trespass, he might have maintained it' on the joint taking of the defendants, or by their taking severally what each claimed, both being present and each giving countenance and aid to the other. But the gist of the action of detinue is not the original taking, but the wrongful de-tainer. 3 Black. Com. 152. It is founded on the possession of the defendant at the time of the action brought; and that notion has been carried so far, that, where there were several executors and one only had the possession, it was held that the action must be brought against him alone. Bul. N. P. 51. We neéd not say whether that would now be held or not; for, possibly, in that case the possession by one executor, might be deemed the possession of both, if they themselves so regarded it; that is, if the one, with whom the actual possession was not, was still considered as having a control over, and power of, disposition of the chattel. But the passage is quoted for the purpose of shewing the nature of the action, and the acts of the defendant ne*416cessary to its support. Now, in this case it is clear, that, though both oí the defendants were present at the taking, and might have had the purpose of assisting each other, yet they, respectively, took possession of different slaves, each for himself, upon distinct and several claims of title; and they have so held them ever since. There was, at no moment, any thing like a joint possession, or claim or pretence of such possession. Indeed the plaiutiff himself made his demands of the defendants severally, for the negroes in his possession; thus admitting the possession to be exclusive, and the detainer several. In such a case it would be clearly wrong to make one defendant liable for the value of the chattels held by the other and which the former would have no power to surrender in discharge of the recovery; or liable for profits made exclusively by the other.

The counsel, however, relied on the case of *Jones v Green,*4 Dev. & Bat. 354, and that of *Garth*v *Howard, 5*Car. & P. 346, as authorities in favor of the action. Neither of them seems to us to warrant the position. In the case in this court, the reasoning goes altogether upon the circumstances, which shewed that the possession, alleged to be in Lane, was in law and truth in Creen; and that the latter had, in fact, the entire control of the negro, notwithstanding the pretence to the contrary. But, here, there is nothing to base such an hypothesis on. *Garth*v *Howard*proceeded on something of the same principle. The rule established in it is, merely, that if one pledge a chattel belonging to another, the owner may maintain detinue against both the pledger and the pawn-broker; upon the ground of the personal possession by the latter, and of the potential possession and dominion of the former. That is carrying the doctrine as far as it will bear, but certainly, if received in its full extent, will not give color to an action against two, where each took distinct chattels upon several claims of title and has constantly had a separate *possession, without*any *centrol*assumed by one over the property held by the other.

Per Curiam, New trial awarded.