The opinion of the court was delivered by

The chain in question at the time of the service of this replevin writ, was under attachment in a suit in favor of this defendant against John Tripp, a son of the plaintiff. The only question presented is whether replevin will lie against this defendant, the attaching creditor, under the circumstances disclosed by the evidence ; or if so, whether it will lie without joining the attaching officer as co-defendant. It is insisted that the officer who attached the property is the proper and necessary party defendant. In Allen v. Crary, 10 Wend., 349, it is hold that replevin lies *492against a plaintiff in an execution, by whose direction the execution is levied on specific articles of personal property, which do not belong to the defendant in the execution, but are the property of a third person, the plaintiff in the replevin suit, notwithstanding the creditor in the execution was never in possession of the property. The court put it on the ground that in such case the officer is trustee as the servant or agent of the creditor at whose direction he attached the specific property in question. But in Richardson v. Reed et al., and Skilton v. Winslow, 4 Gray, 441, (the first being against the attaching officer and the creditor, and the second against the creditor alone,) it was held that the action would not lie against the attaching creditor alone, or jointly with the officer. In these two last cases also the attaching creditor was never in possession of the property. In such case, where the attaching creditor is liable in trespass or trover, looking simply at the rights of such creditor, there does not seem to be any satisfactory reason why he might not as well be held liable in an action of replevin. But there are some difficulties in allowing an action of replevin, in ordinary cases, against the attaching creditor alone, at the suit of a third person. These objections are summed up by Metcalf, J., at the close of his opinion in the cases above referred to in 4 Gray, in which he says: “In our opinion replevin cannot be maintained in this commonwealth against a person who has no possession or control of the goods to be replevied; replevied goods can not 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.” It may with propriety be said that in case of attachment of property by several creditors, the attaching officer would be a proper, if not a necessary party, to protect the rights of all the attaching creditors. It is unnecessary to say whether we should follow the decision in New York, or that in Massachusetts, if nothing appeared in this case to distinguish it from the cases in which those decisions were made. In the case at bar, when the attachment was made by Smith, the deputy sheriff, this defendant was present and participated in the taking and carrying *493away the chain, either by taking it and handing it to the officer for that purpose, as the plaintiff’s evidence tended to show ; or, as the defendant’s evidence tended to show, by looking over and handling this plaintiff’s chains, this among the rest, and pointing it out, and directing the officer to take it, as the officer did in this defendant’s presence. .Again, when the writ of replevin was served, and the chain taken upon -it, it was either in the actual personal possession of this defendant, according to the plaintiff’s evidence ; or in the possession of Mr. Sartle, his attorney in the slander suit, and in the suit on which it had been attached, as the defendant’s evidence was.

We are not prepared to say that these facts, if we should adopt the principle of the Massachusetts decision, would be sufficient to obviate all the difficulties that might arise in sustaining replevin of this character against the attaching creditor alone. But in this case it appears that the defendant in this replevin, before he caused the property to be attached, and subsequently, was claiming to be the owner of the chain, or a part of it; that John Tripp, this plaintiff’s son, then had an action of slander pending against this defendant for accusing him of stealing this chain ; and that the purpose of attaching this chain was to get possession of it for the purpose of using it as evidence in the defense of the slander suit, or in preparing the evidence for the defense of that action. The officer would be a competent party defendant to try his right to the custody of the property, so far as that right was created by the attachment he had made. But to try the question of this defendant’s ownership of the property, which he was asserting, he himself was the proper party. The plaintiff, knowing that the defendant claimed title to the property, had a right to suppose that title would be asserted and relied on in defense of the action of replevin ; and was justified in bringing his action as he did against the proper party for that purpose. The defendant having thus asserted title to the property independent of the attachment, and obtained possession of it in the manner and for the purpose already stated, can not be permitted to defeat the action by an attempt to shield himself from liability on the ground that the *494remedy is against the officer. The ruling of the county court was correct. So far as the officer has a right to the possession of the property, by virtue of the attachment in favor of the plaintiff, he only represents the interest of this defendant acquired by his attachment. The attaching officer had notice of this suit, as he was a witness for the defense on.the trial, and it is to be taken that no other liens, by attachment or levy, existed in favor of the officer under process in favor of any other creditor, as he disclosed none. Ye see no inconvenience or detriment that can result from sustaining this suit, without the officer being made a party defendant.

The judgment of the county court is affirmed.