This was an action of replevin, brought by the appelle against Little, in his lifetime, for a negro woman slave; to which he pleaded non cepit, and property in himself, and the proper issues joined. Little having died before any trial had in the cause, and his death suggested on record, further proceedings were had therein against Rector, as his administrator, against whom a verdict and judgment was rendered, from which the defendant appealed.

During the trial, several exceptions were filed to the opinion of the Court, which need not be stated, as the first matter assigned for error, will, if supported, render it unnecessary to take any further notice, either of them or of the several other matters assigned for error. The first assignment of error is, “ that by the death of Little, the action abated, and could not be revived against his administrator.”

*246Replevin is an action strictly in tort, and will not lie but where trespass does, for a. wilful and tortious taking: Schoales and Lefroy, 320, and there must be an unequivocal possession in the plaintiff, and an unequivocal taking by the defendant, in order to support the action: Lord Chancellor Reddesdales, Schoales and Lefroy, 324; Shannon v. Shannon. Replevin, therefore, being an action of tori, and not lying hut where trespass does, the maxim, actis personalis meritar cum persona, well applies.

The action, therefore, in the Court below, abated on the death of Little, the defendant being suggested of record, and ought to have been so entered. It could not have been revived, or further proceedings had against his administrator, even with his own consent, or at his own prayer: 4 Mass, Rep. 480, Mellen and others v, Baldwin.

Let the judgment of the Circuit Court be reversed. This Court, proceeding to give such judgment as the Court below ought to have given, do adjudge and consider, that the said action in this Court abated by the death of Little; and let the appellant have his costs in this Court, and also' in the Court below, from, the time of the suggestion of Little’s death-