There was no error in holding that the agreement signed by Hinsdale was not a valid contract, and could not, therefore, operate as an estoppel against him. But the Court held it was admissible “for some purposes;” and we think it was admissible as a parol admission of the facts recited in it, and open to explanation and contradiction as such.
But, as we understand the finding of facts, we think the Court erred in holding the plaintiff below entitled to maintain the action of replevin for the goods in question, as they seem to have been already in his possession at the time the writ of replevin was issued: for though it is found that defendant Hickey, when he levied upon the goods in the dwelling house of Hinsdale, took them into his posession, it seems to have been only so far as merely to make an inventory and appraisal of them; as it is further found that “ he did not in fact remove the goods from the house, but that he made no release thereof, or of any part of them, from said levy, but left the house and property as he found it, still claiming the property, by virtue of said levy; and whilst said defendants’’ (plaintiffs in error) “ were absent from said house, and before the time had expired for perfecting' the settlement according to the agreement offered in evidence, the plaintiff issued his writ of replevin,” &c. It is clear from this that, whatever *103right of possession Hickey may have had or claimed, the property was in the actual possession of Hinsdale, the plaintiff below, at the .time he sued out his writ of replevin: while, upon the plaintiff’s own theory, Hickey had not even the right, but a mere claim of possession : since the bringing the action, and plaintiff’s affidavit to obtain the writ, denied the defendants’ right of possession. So far as the levy upon the property may have been illegal, or the defendants’ interference with it, under the claim of a levy, unauthorized, doubtless the plaintiff below might have had an action of trespass for such wrong, though the property had been returned to or left in his possession (and possibly of trover for a conversion). But the action of replevin (under our statute at least) is peculiarly a possessory action; and its primary object is to enable the plaintiff to obtain the actual possession of property wrongfully detained from him by the defendant at the time the action is brought. The statute, and the whole theory of the action, go upon the assumption that the plaintiff is not in actual possession of the property,, and that the defendant wrongfully withholds that possession from him. Why bring the action to obtain the possession if the plaintiff has it already without suit ? A mere claim to the right of possession by another cannot give the right to maintain replevin, while the plaintiff has the' possession in fact. An action of replevin is not in the nature of a bill quia timet.
But the counsel for defendant in error insists that section one of chapter one hundred and fifty two, Compiled Laws, gives the action in all cases of a wrongful taking. The language is, “ Whenever any goods or chattels shall have been unlawfully taken or unlawfully detained, an action of replevin may be brought for the recovery thereof,’’ &g. But it is very plain from the subsequent provisions of the statute, in reference to the affidavit, the writ, declaration, &o., as well as from the nature and *104object of tbe [action itself, that a wrongful taking alone will not sustain tbe action, if tbe possession bas been restored to tbe plaintiff, or he bas it at tbe time the suit is instituted.
At common law replevin could only be maintained where the -original taking (as well as tbe subsequent detention) was unlawful-: — 1 Chit. Pl. 186 to 190. Detinue was the common law action to obtain tbe property where tbe defendant came rightfully into possession, and tbe detention only was wrongful. The object of this provision of our statute was to extend the remedy by replevin, so as to include both classes of cases. But in both equally there must be an unlawful detention at tbe time of tbe institution of the suit. This detention is the whole gist of the action.
The finding of facts does not therefore support the judgment. The judgment must be reversed, and the plaintiffs in error must recover their costs in this Court and the Court below.
The other Justices concurred..