1. Tbe gist of the action of detinue is tbe wrongful detainer, and not tbe original taking. — 1 Saund. PI. & Ev. 436.
2. It is said that to maintain tbe action, it must be shown tbe defendant, at tbe time the suit was sued out, bad tbe actual possession, or tbe controlling power over tbe property. Walker v. Flinn, 20 Ala. 192. Tbe reason given why it is required that tbe defendant in such action must have the possession, or power of control, at tbe time of demand or suit brought, is that be may surrender tbe possession, if be elects to do so. If out of possession by himself or bailee, be can not surrender possession; and hence, tbe action can not be maintained against him. “It is generally, therefore, incumbent on a plaintiff in this action, after showing that be has an absolute or special property, and also a right to tbe immediate possession, also to show an actual possession or a general controlling power over tbe chattel by tbe defendant, *594at tbe date of tbe suit.” — Charles v. Elliott, 4 Dev. & Bat. 468.
3. In tbe present ease tbe property bad been taken from tbe possession of Henderson, tbe defendant, under a search warrant, and brought to the justice or notary public who bad issued tbe warrant. On bearing tbe evidence be discharged tbe seizure, and directed tbe sheriff to restore tbe property to Henderson.- — Code of 1876, § 4021. Tbe property bad not in fact reached tbe defendant’s possession when tbe writ in detinue was sued out. In McArthur v. Carrie, 32 Ala. 75, 88, it was said, “We think it clear that if tbe sheriff, under instructions bom plaintiff, or her attorney, discharged tbe first levy before tbe second writ was sued out, this placed tbe slaves under tbe legal control of tbe defendant, and, on this point, justified tbe institution of tbe suit. After such discharge of tbe levy,tbe sheriff’s possession ceased to be in bis official character, and be held tbe slaves as the naked bailee of tbe defendant.” We can not perceive any real difference between tbe question raised in McArthur v. Carrie, supra, and tbe question presented by this record. We think Henderson must be regarded as having power of control over tbe chattels sued for, and that tbe action was rightly brought against him. Tbe rulings of tbe Circuit Court were in accordance with these views, and tbe judgment is affirmed.