After a continuance, the opinion of the Court was prepared by
Shepuet J.The object of the writ of replevin is to redeliver goods and chattels, or to restore the possession of them, to the person who has the general or special property in them. The statute prescribing the forms of writs, ch. 63, sec. 8, requires the allegation to be made in the writ of replevin, not only that the defendant took the goods, but that he has “ them unlawfully detained to this day.” It appears from the bill of exceptions, that the defendant never had the actual possession of the goods alleged in the writ to have been detained by him, but that the plaintiff, at the time of the attachment and ever since, has had the possession of them. The plaintiff, having receipted for the goods, as attached by the defendant, might ordinarily be regarded as holding them as the servant of the *416defendant, who would, in contemplation of law, have possession. But in this case the plaintiff has proved, that he was the owner of the property, and that the attachment was made wrongfully. Under such circumstances the defendant cannot be regarded as having the constructive possession by his wrongful act, unless he has the legal right to obtain possession. He can have no such legal right unless it arises out of the receipt of the plaintiff. The terms of the receipt are not in the usual form ; and the plaintiff does not therein admit, that the property was in the person against whom the attachment issued, or that it was in any -third person. He has not thereby disenabled himself to allege and prove it to have been his own property. To maintain this suit the defendant must be proved to have been in the actual or constructive possession of the goods.
In a suit upon the receipt, by the defendant against the plaintiff, he may prove, that the property receipted for was not the property of the debtor, and that it has been restored to the owner ; and the defence will be good. 13 Mass. R. 224, Larned v. Bryant et al.
This Court has expressed its approbation of that case; and when speaking of the claims of the creditor, debtor and owner, upon the attaching officer, says, “ and if the true owner should call on him for it, he might defend himself by proving, that such true owner had already the property in his possession, or had availed himself of its proceeds, or in some way appropriated it to his own use and benefit.” 8 Greenl. 122, Fisher v. Bartlett et al. Such proof has been offered in this case; the plaintiff being the true owner, has always had the possession, which cannot be legally disturbed by the defendant.
The plaintiff failing to prove any such unlawful detention, either actual, or constructive, as the statute requires, cannot maintain this suit.
The exceptions are overruled, and the nonsuit is confirmed.