'Replevin for a stove. There was •evidence tending to show that, prior to the date of the writ, ¡the defendant had sold the stove in controversy to his father, .and that at that time the same was in the possession and under the control of the father, and not of the son. The •defendant requested the presiding Justice to instruct the *547jury, if the stove was thus iu the possession and control of the father and not of the son, that, in such case, the action could not be maintained against the son, but he ruled otherwise, and that the action was maintainable.
The question presented is whether in a replevin suit, A against B, the officer by virtue of his process may replevy the goods in controversy in whose soever hands they may. be found, they being neither in the possession nor under the control of the defendant.
The action of replevin is to a certain extent a process in rem, It lies for the recovery in specie, of any personal chattel which has been taken and detained by the defendant from the owner’s possession, with damages for its detention. The action must bo against the person having possession of and unlawfully taking or detaining the chattel to be replev-ied.
The action of replevin is regulated in this State by R. S., 1857, c. 96. The statute assumes that the property to be replevied is in the possession of the defendant, from whom the officer is to take it and restore the same to the plaintiff, upon his giving the bond required by law. If the plaintiff recovers, he is entitled to damages. If he fail, the goods are to be restored to the defendant, who may recover damages for the taking. A writ of return issues and, if not restored, the defendant in replevin has his remedy on the replevin bond as well as the writ of reprisal. The statute in all its provisions implies that the property replevied was in the possession of the defendant, that it was taken from his possession by the writ, and, in case of failure on the plaintiff’s part, is to be restored to the possession of the defendant.
The form of the writ is prescribed by R. S., 1821, c. 63, § 9. The direction is to the sheriff that he replevy the goods and chattels following (here describe them) belonging to P. D. of B., in the county of P., now taken, detained or attached (as the case may be) by S. P. of B., county of P., at said B, and them deliver unto the said P. D., &c. The *548goods to be replevied are now, that is, when the writ is made and served, taken, detained and attached by the defendant. The mandate of the writ is to take the goods from the person taking and detaining them, and not from the public generally.
The defendant is to " answer unto the said plaintiff in a plea of replevin; for that the defendant, on the day of A. D. 186 at said unlawfully and without any justifiable cause, tools the chattels of the said plaintiff as aforesaid, and them unlawfully detained to this day,” &c. The declaration, it will be perceived, implies, not merely a wrongful taking, but a wrongful and continuing detention.
The officer is to serve the process "providedhe, the said plaintiff, shall give bond to the said defendant, with sufficient sureties, in the sum of dollars, being twice, the value of the said goods and chattels, to prosecute the said replevin to final judgment, and to pay such damages and costs as the defendant shall recover against and also to return and restore the same goods, in like good order and condition as when taken, in case such shall be the final judgment.” The person from whom the goods are taken is the person to whom they are to be restored. He is the only person injured, if replevied without right. He is the one who can claim damages. In the case at bar, the case finds that the defendant neither owned the property nor had it in his possession at the date of the plaintiff’s writ. The defendant, therefore, was entitled neither to a return nor to damages. The real owner, who was in possession, is thus left without protection. At any rate, he could not vindicate his rights, in this action. His property is taken from him by a process to which he is a stranger.
It seems to have been held that, at common law, replevin would not lie for an unlawful detention, but that in such case detinue or trover was the proper remedy. Meany v. Head, 1 Mason, 319. But, in this State, it was early decided that the statute so far altered the common law, that this action may be maintained for goods unlawfully detained, *549though the original taking was lawful. Seaver v. Dingley, 4 Greenl., 300. The same was held to be the law in Massachusetts. Baker v. Fales, 16 Mass., 151.
The ruling of the presiding Justice is based upon the decision in Sayward v. Warren, 27 Maine, 453. But, upon a careful examination of the opinion in that case, we are satisfied it is against the spirit of the statute as well as against the weight of judicial authority. The decision is predicated upon the assumption that trespass de bonis as-portatis and replevin are concurrent remedies. The Court cite the remarks of Suthekuand, J., in Chapman v. Andrews, 3 Wend., 240, in which he says, "the doctrine of this Court I consider as settled, that replevin lies for such a taking as will sustain an action of trespass de bonis aspor-tatis.” But such cannot bo regarded as sound law. If the chattel is destroyed it cannot bo replevied, though the owner may bring trespass de bonis. So, in case of a tortious detention, when the taking was lawful the owner may bring trover or replevin, though he cannot maintain trespass for such detention. It is obvious one may be maintained and the other not. The remedies, therefore, are not in all cases concurrent. Sharp v. Wittenbach, 3 Hill, 576; Roberts v. Randel, 3 Sandf., 707.
In Pangburn v. Partridge, 7 Johns., 140, the Court say, " the old authorities are, that replevin lies for goods taken tortiously, or by a trespasser.” In this as well as in the other cases cited, as Thompson v. Bullen, 14 Johns., 84, Clark v. Skinner, 20 Johns., 465, and Chapman v. Andrews, 3 Wend., 240, the articles replevied were in the possession and under the control of the defendants. The language of the court has reference to the existing state of facts. Tho remedies are concurrent, if the trespasser has the goods in his possession, and while and as long as they remain under his control. With this qualification, and only as thus qualified, can the conflicting authorities be reconciled.
"In Comyn, title Replevin, A, it is laid down,” remarks WiimiAN, C. J., in Sayward v. Warren, "even, that if *550cattle, after the taking, return to the owner, still, that replev-in lies for the. wrongful taking.” By recurring to Comyn, it will be found that his reference is to Fitzherbert de Natura brevium, 69, H, where the law is thus laid down : — "And if the lord distrain his tenant’s cattle wrongfully, and after-wards the cattle return back unto the tenant: — yet the tenant shall have replevin against the lord for these cattle, and shall recover damages for the wrongful distraining of them, because he cannot have an action of trespass against his lord for that distress; but against a servant or bailiff he may. 1 H, 6, 7.” This reasoning cannot be regarded as having any weight at the present day; certainly not as against the plain intent of the statute.
The result is that the action of replevin for chattels is only maintainable against the individual having them in possession, either personally or by his' servant. Such is the law in Massachusetts, as determined in Richardson v. Reed, 4 Gray, 441, and in Pennsylvania, as decided in English v. Dalbraw, 1 Miles, 160. Exceptions sustained.
Cutting, Kent, Dickerson and DaNEORth, JJ., concurred.