Though an officer who attaches, and a plaintiff who directs him to attach A’s goods, on a writ against B, are joint trespassers, and may be sued jointly in an action of trespass or trover, yet they cannot be sued jointly in an action of replevin. The grounds and incidents of a replevin suit are incompatible with the joinder of the creditor and officer as defendants. The writ of replevin assumes that the goods which are to be replevied have been taken, detained or attached by the defendant, and are in his possession or under his control; and it *443directs that they shall be replevied and delivered to the plaintiff, provided he shall give bond conditioned, among other things,’ to restore and return the same goods to the defendant, and pay him damages, if such shall be the final judgment in the action. But attached goods are in the legal custody and possession of the officer only. The attaching creditor has no property in them, general or special; no right to the possession of them ; and no right of action against a third person who may take them from the officer or destroy them. Ladd v. North, 2 Mass. 516. How then can the goods be returned, on a writ of return or reprisal, to him who never had possession of them, nor the right of possession ? Or how can he be entitled to damages for the taking and detaining of goods in which he had no property ?
The plaintiffs’ counsel cited Allen v. Crary, 10 Wend. 349, as an authority for sustaining these actions. In that case the plaintiff, whose goods had been taken on an execution against a third person, maintained replevin against the judgment creditor who directed the officer to take the goods. The court proceeded on the ground that, as both the officer and creditor were trespassers, replevin would lie against either of them, because it would lie wherever trespass de bonis asportatis would. And in a subsequent case in the same state, the court maintained an action of replevin against the officer and creditor jointly. Stewart v. Wells, 6 Barb. 79. But we cannot admit the position that replevin will lie wherever trespass de bonis will. The two actions are not, in all cases, concurrent. By the common law, replevin cannot be maintained where trespass cannot; for, by that law, an unlawful taking of goods is a prerequisite to the maintenance of replevin. 2 Leigh N. P. 1323. Meany v. Head, 1 Mason, 322. Hopkins v. Hopkins, 10 Johns. 372 But trespass will lie in cases where replevin will not. Replevin, being an action in which the process is partly in rem, will not lie where it is impracticable or unlawful to execute that part of the process according to the precept. Thus, replevin will not lie against him who takes goods and destroys them, or sells and delivers them to a stranger; yet he might be sued in trespass. So where an officer seized A’s property, first on an execution *444against B, and then on an execution against A, it was held by the court which decided the case of Allen v. Crary, that although A might maintain trespass for the first seizure, yet he could not replevy the property; because he had no right to the possession of it after the last seizure. Sharp v. Whittenhall, 3 Hill, 576. In that case, and in Brockway v. Burnap, 12 Barb. 351, the former dicta, that replevin would lie wherever trespass de bonis would, were denied; and in the latter case it was said that in Allen v. Crary the court, by sustaining replevin against a defendant who had not the property in his possession, “ pushed out the analogy between trespass de bonis asportatis and replevin further than is warranted by the cases.” See also Roberts v. Randel, 3 Sandf. 712, 713.
In our opinion, replevin cannot be maintained, in this commonwealth, against a person who has nó possession or control of the goods to be replevied ; replevied goods cannot be restored and returned to a person from whom they were never taken; and such person cannot rightfully be made a defendant, sole or joint, in an action of replevin.
Exceptions sustained, in the first case ; overruled, in the second