In actions ex delicto, each of the defendants is liable for his own wrongful act, and it is competent for the plaintiff to proceed jointly or severally against those who have participated in it.. If the plaintiff brings his action against several, but only makes out a case against one, he is entitled to a verdict and judgment against him on whom the proof fixes a liability. [Arch. Civ. Pl. 240, a.; 1 Chit. Pl. 65, etpost.] But independent of any statutory regulation, the law is otherwise as it respects actions ex contractu. There the declaration supposes the contract to be entire, and jointly obligatory upon all who are sued, and if the plaintiff fails to make out his case against either of the defendants, he is not entitled to judgment against such as may be justly chargeable. [Arch. Civil Pl. 240; 1 Chit. Pl. 65, et post.
The material inquiry in this case is, to which of the general classes of actions, the action of detinue is assignable. The older editions of Chitty’s Pleading considered it under the head of actions ex contractu, for the reason doubtless, that in its origin it was regarded as an action of debt in detinet; and in many of the elementary books, it was said not to be sustainable when the goods came tortiously into the defendants possession. This latter notion it is said originated with Brian, C. J. in the reign of Henry VII. who held that detinue could not, in such case, be supported; because, by the trespass, the property of the plaintiff was divested, and in order to support detinue, the property in the chattel must be vested in the plaintiff at the time of the commencement of his action. This very fallacious reasoning, if ever followed, has been long since repudiated. The gist of the action is the wrongful detention of the thing, not. the original caption, and it is regarded as wholly unimportant whether the defendant’s possession was acquired by a bailment or trespass.
*671Different writers upon the law of pleading have assigned detinue to each of the classes of actions, according as their respective opinions inclined, while others have considered it, as partaking according to circumstances, of either class, but not susceptible of classification. We think that detinue cannot be always considered an action ex contractu. Conceding that such is its character when the defendant’s possession commences under a contract of bailment, yet where the taking is tor-tious, the detention must be alike wrongful. Without reference to the manner of taking and detaining, the form of the declaration is always the same, so that we cannot learn from the pleadings whether the possession was legally acquired. And whatever may be the law in such case, (which we need not determine,) wherever there is a tortious taking, the action is ex delicto. The inference being allowable that the proof established such a caption, the verdict which is against one, and in favor of the other defendant, afforded a warrant for a judgment accordingly.
The consequence is, that the judgment of the Circuit Courtis affirmed.