majority">Houston, J.,

delivered the opinion of the Court:

The main question presented in this case is whether an action of replevin for a horse wrongfully taken and detained by the defendant below from the plaintiff below, on a demand made by him for the possession of it, is a local or a transitory action in the Courts of this State ? At common law in England it was ruled as early as the reign of Queen Elizabeth, at least, that the action of replevin is a local action, and that it is necessary to allege in the declaration in it the place of taking, as well as the vill or parish^ otherwise the defendant may demur; but the omission is cured by pleading over or after verdict. The place, and vill or parish are material and traversable. 1 Saund., 347, n. (1.) by William Hob., 16; Reade v. Hawke, Cro. Eliz., 896; Ward v. Lavile, Moor., 678, Ward v. Lakin, 1 Brownl., 176; Read v. How, 1 Sid., 9, 10; Weston v. Carter, Carth., 186; Traverton v. Hicks. Where the defendant took the goods in another place than is mentioned in the declaration, he may plead non cepit, and give that fact in evidence, and non-suit the plaintiff. 1 Str., 507, Johnson v. Wollyer. The report of the case is brief. It was tried at Guildhall before Pratt, C. J., in the 8th year of the reign of George the First. Replevin in London, defendant appears upon an elongata, plaintiff declares for taking guns in quodam loco vocal’ the Minories in London-, defendant pleaded non cepit modo et forma. At the trial' the plaintiff proved the taking at Rotherhithe in Surrey; upon which it was objected that the plaintiff had not proved his issue, for the place is material, and therefore part of the issue under the modo et forma. The counsel for the plaintiff admitted that it was traversable; but insisted that by not traversing it particularly, the place *583was admitted, and could not be insisted on upon non cepit But the Chief Justice held that where the defendant avows at a different place, in order to have a return, he must traverse the place in the count, because his avowery is inconsistent with it; but where he does not insist upon a return, he may plead non cepit, and prove the taking to be at another place, for it is material. Whereupon the plaintiff was non-suit.

In the same note Williams also says: The plea of cepit in alio loco is to be considered as a plea in bar and not in abatement ; and it is upon this authority and the cases cited by him that Mr. Greenleaf in his American work on evidence lays down the rule of the common law on this question in the action of replevin in the following terms: “The general issue in this action is non cepit, which admits the plaintiff’s title, and under which it is incumbent on the plaintiff to prove, that the defendant had the goods, in the place mentioned in the declaration; for the action being local, the place is material and traversable. Proof of the original taking in that place is not necessary, for the wrongful taking is continued, in every place in which the goods are afterwards detained. But under this issue the defendant cannot have a return of the goods; if found for him, it merely protects him from-damages. If he would defend on the ground that he never had the goods in the place mentioned, he should plead cepit in alio loco which is a good plea in bar of the action. This plea does not admit the taking as laid in the declaration; and therefore, the plaintiff must prove such taking or fail to recover. 2 Greenl. Ev. Sec. 562. And this so far as the venue of the county, at least, is concerned, we have always understood and considered to be the rule in the courts of this State in all actions of replevin for the wrongful taking or detention of personal property, and not merely when the action is for distress for rent, or for cattle damage feasant; as it has long been, and still is an action of more frequent occurrence in this State for the wrongful taking or detention of goods and chattels with out such a claim, than with such a claim on the part of the defendant, and has as long existed here without any distinction being recognized between them in respect to the application of this rule, either by statute or the decision of our Courts, until this case occurred in the Court below; for we do not think *584that the statutory provision contained in chapter 106, section 12, Rev, Code, 648, abolishes, or was designed to abolish this rule and principle of the common law so long established in the pleading and practice of the Courts of this State, as to the materiality of the place of talcing mentioned in any action of replevin, nor in any other action or case where the place of taking, or in which the act is alleged to have been done, the place may be material or traversable. ■ The words of the section are, “ It shall not be deemed necessary, in any declaration, or other pleading, to lay the venue in the county in which the action is brought, nor to set forth in any manner the place in which an act is alleged to have been done, unless when, from the nature of the case, the place may be material, or traversable.” But we have seen from the authorities before cited that at common law, and according to the long established course of pleading and practice in actions of replevin in the Courts of our State, the place of the taking of the goods alleged in the declaration, on an issue presented by the plea of non cepit modo et forma, or of cepit in alio loco, which have been and still continue to be very common pleas here in the action, has uniformly been considered to be material and traversable; and so far from considering that the Legislature intended to alter or abolish this rule of pleading and practice in the action replevin in this State, we are strongly inclined to think it was designed to exempt and exclude it from the operation of the section just read under the exception embraced in the concluding words of it, as follows: It shall not be deemed necessary in any declaration, or other pleading, to lay the venue in the county in which the action is brought, nor to set forth in any manner the place in which an act is alleged to have been done, “ unless when from the nature of the case, the place may be material, or traversable.” As we understand the rule of the common law and the pleading and practice in the Courts of this State at the time of the enactment of the section and chapter referred to in all cases of civil actions, there is none to which this exception would more clearly and conclusively apply than in an action of replevin as then known and recognized here. Nor can we think there,is any good ground for a difference or distinction in the meaning and import of the terms themselves between “ the nature of the case ” as it occurs in this clause of this section, and “ the *585nature of the action ” as usually employed by members of the profession and writers on the law. “A case,” as here referred to and the word employed imports means a civil action of some form and nature between two or more parties in a Court of law, either decided or still pending, which may be of different kinds, but the first and most prominent distinction between them, when they differ from each other, is the form and legal nature of the action in which the case is instituted, and the best general indication of this distinction in the nature of these different cases in Courts of law, is the different forms of action in which they are commenced. The judicial record of such cases when completed and made up in Court consist of the original writ which fixes the form of the action at common law, the declarations, pleadings and issues joined in it, and the judgment of the Court thereupon. And if the plaintiff mistakes the nature of his case or the nature and form of the action adapted to it, in general at common law he cannot maintain the action, but will be non-suited by the judgment of the Court if demanded on the other side. The pleadings also vary very considerably in these various actions and cases at common law with the several forms of action appropriately adapted to them, and with the issues of fact as well as law joined and presented in the pleadings; but whatever may be the form of the action or the difference of the pleadings in it from those in any other action, each is alike usually termed a case, or an action at law, and usually import one and the same thing; and accordingly the words “ the nature of the case,” as employed in this provision of the section, means the same as if the words employed in this connection had been “ the nature of the action,” instead of the nature'of the case, for it is the difference in the nature and character of the various actions at law which constitutes the substantial distinction between them; and we therefore consider this exception in the 12th section of the chapter to mean in general terms the same thing in this case now before the Court, as if it had specially provided, in the following terms: “ unless when, from the nature of the case, as in an action of replevin, the place may be material, or traversable.”

As it appears from the record that the Court below declined to sustain the motion for a non-suit on the alleged ground that the plaintiff had failed to prove the venue of the action in Kent *586County as laid in the declaration, but concluded to leave the question as to the proof on that point to be decided by the jury subject to the instructions of the Court when it should come to charge them generally on the evidence and the points of law in the case, with our conviction and belief that the action of replevin is a local action in all cases under the rules of pleading and practice long established in the courts of this State, we have come to the conclusion that the Court; below should have instructed the jury in explicit terms in its charge to them in the case, with the further instruction under the circumstances that unless they were satisfied from the evidence before them that it had been proved that the cause of action, the taking or detaining of the horse in question by the defendant from the plaintiff, was in Kent County, the plaintiff could not recover in the action, and their verdict should be for the defendant. But as it declined to give such instructions to the jury, although prayed for by the counsel for the defendant below, we consider that it was error in the Court to do so ; and therefore the the judgment of this Court is, that the judgment of the Court below must be reversed, and it is reversed.

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