¶1— No case has been referred to establishing the principle, that an action of detinue, will lie after the destruction or death of the chattel sued for ; nor have our researches enabled •us to discover any: on principle, we think such an action cannot be maintained. The action is brought for the recovery of the specific article or its alternative value. We do not subscribe to the position that, it is at the election of the party to deliver the article after the judgment or not, at his pleasure, where it is in ;his power to deliver it. But the writ is framed, and its precise object is, to recover the article in specie, and where this is impossible at the time of the action brought, so that the object of the writ cannot be accomplished, the action will not lie.
¶2Where the evidence in a cause, is so precisely balanced that it is impossible to say on which side.the evidence predominates, there can be no decision, and consequently, the plaintiff' must' fail, as he undertakes to establish a cause of action against the defendant; and until he makes out a prima fads case, the defendant may remain passive. A case,' where the evidence on both sides, is of precisely the same weight, (if indeed such a case can be supposed) is the same as if there was no evidence at all.
¶3This, was, in substance, the charge of the court. The position of the counsel for the plaintiff in error, that regard in such a .case) should be had to the previous possession of the plaintiff in ¡error,i begs the. entire question, as that was the very thing to be 'proved before the jury.
¶4There is no error in the judgment, and it must be affirmed.