delivered the opinion of the Court. It appeared from the plaintiff’s own showing, that he had, for a valuable consideration, let the oxen to hire to Haskins for three months, which were unexpired when the replevin was sued, and that Haskins then had the actual possession of the cattle in virtue of that contract of bailment. And it further appeared by the plaintiff’s showing, that the defendant attached the property as belonging to Haskins, upon a writ in favor of a creditor of Haskins, and that the action against Haskins is pending. The three months during which Has-kins was to have the oxen, have expired. And the question raised by the parties is, whether this action can be maintained. We are all of opinion, that inasmuch as the plaintiff had no *65right to the possession of the oxen at the time when this action was commenced, he cannot support an action of replevin ; for to maintain replevin it is one of the indispensable requisites, that the plaintiff should have a right to the possession of the goods. Wheeler v. Train, 3 Pick. 255.
And as the plaintiff had no right to' his replevin, we are of opinion that the defendant is entitled to have a return of the property, to be disposed of according to law, as it was wrongfully taken from his possession. Butcher v. Porter, 1 Salk. 94 ; Crosse v. Bilson, 6 Mod. 102.
It has been contended, on the authority of Wheeler v. Train, 4 Pick. 168, that the defendant is not entitled to a return. That case is in some respects like to the case at ■ bar. The plaintiff failed to recover, because he had leased the goods, and they were in the possession of the lessee when the action was brought. The lease had expired before the verdict, but it was proved in that case, that the plaintiff was the general owner. His counsel contended, that under those circumstances there should be no return to the officer who had attached the goods as the property of a third person. If the property was in the plaintiff, it is very obvious that the attaching creditor could have no benefit from a return ; and the counsel for the defendant consented to have a judgment for costs only, without a return. But in the case at bar the question in whom the general property was, has not been tried. It may be that upon the trial of that question it will be found to be in Haskins, and then the defendant should have the property returned, to be taken by any execution that the attaching creditor may obtain against Haskins.
We are therefore all of opinion, that the plaintiff must be nonsuit, and that the property should be returned to the defendant, and that he should recover his costs.