The position taken by the defendant, that the object and purpose of the writ of replevin are to transfer the possession of the article replevied to the plaintiff in replevin, is certainly well maintained, if by possession be understood a possession for the time being. The further position, that the plaintiff in replevin, after the service of the writ, has a right to sell the property thus replevied, and may give to the pur-., chaser a good, indefeasible title, which will not be affected by a judgment in favor of the defendant in replevin, is one more difficult to be sustained. If it were limited to replevin in cases of wrongful distress of personal chattels for rent, or of cattle damage feasant, it might be more readily assented to ; as in such cases the property is held by the defendant in replevin for a particular purpose, and he does not claim to be the owner of it. And where the plaintiff in replevin, who in such case is the actual owner, has given the requisite security, by a bond, to pay such rent, or such damages, if the property is not returned, it may be all *hat is requisite to do perfect justice between such parties. Whether a like principle should be applied to the case of replevin, in its extensive use now sanctioned by the laws of Massachusetts, requires more consideration.

*445The proposition is, that any one who will avail himself of the forms of law in instituting his action of replevin, merely alleging property in himself, and giving bonds, may, upon the service of the writ of replevin, sell the property replevied, absolutely and by an indefeasible title, and thus divest the real owner of his property, irrespective of the judgment in the action of replevin. The language of this court, in Gordon v. Jenney, 16 Mass. 469, is strongly relied upon as sustaining such a doctrine. Taken literally, and without any restriction to its application to the facts before the court, it would sustain that view of the question. But, as it seems to us, it is to be qualified by reference to the circumstances of that case. The plaintiff in replevin was there insisting upon his right to recover damages, by reason of a deterioration of the value of the goods pending the action of replevin. In answer to this claim, the court say, he is entitled to no damages on this account: “ He may sell them. They are delivered to him upon the assertion that they are his property, and he has it in his power to deal with them as such.” But the case before the court was that of a plaintiff in replevin who was the real owner of the property replevied. That had been already settled. Such a plaintiff in replevin may, of course, deal with the goods replevied as his own. He has the possession and the right of prdperty, and therefore all the facilities, and all the legal rights too, requisite to make a legal transfer. In ordinary cases, the purchaser buys subject to the question of the vendor’s title; and we think none the less so because the vendor has acquired his possession under a writ of replevin issued upon his own representation, and which may be wholly unfounded in truth. We perceive no sufficient reason for sanctioning the broad doctrine, that by reason of the mere fact that he has acquired his possession through the instrumentality of a writ of replevin, his vendee has acquired thereby an indefeasible title as against every body. It is doubtless true that the plaintiff in replevin has, by virtue of his writ, acquired the right of possession pending the action ot replevin, and that the real owner cannot lawfully disturb that right *446during the pendency of the action, nor' institute an action against a third person who may become possessed of the goods. And this is precisely the extent of the right exercised by force of a writ of replevin. This view of the question is fatal to the defence, as presented upon the general position, that by virtue of the writ óf replevin and giving of bonds to prosecute the same, the property absolutely vested in the plaintiff in replevin.

The defendant, however, further insists, that before the defendant in replevin can, in any case, be entitled to a return, or be authorized to regain the possession, by any legal process, he must have a judgment for a return; the judgment de retorno must actually be entered. That principle, so far as it applies to the institution of an action on the replevin bond, looking to that as the remedy, seems to be well sustained. Cowdin v. Stanton, 12 Wend. 120. But the further inquiry is, whether a discontinuance of the suit may operate to defeat a right of possession of a chattel acquired under a writ of replevin, and' having no other foundation besides that which results from such writ. Such, we think, may be the effect; and if the defendant in replevin is content to resort to the property itself, and to forego his remedy upon the bond, he may, upon the discontinuance of the suit by the plaintiff in replevin, avail himself of his antecedent title, as the lawful owner, to regain the possession, although he may not have a formal judgment for a return of the property.

The next question is, whether there was any such termination of the action of replevin brought by Barnes against the present plaintiff. The case stated by the parties finds that the action was abated by the death of Barnes, and the case terminated before the institution of the present action of replevin. Such being the fact, the right of possession acquired temporarily by Barnes ceased, and the real owner was no longer prevented from regaining possession of his property, which had been unjustly taken from him, through the instrumentality of a process in replevin, by one having no claim thereto. Judgment for the plaintiff.