
    Smith against Crockett.
    DECEMBER, 1824.
    The action of reolevin for property wronfully will not lie in this State.
    
      ■SAMUEL G. SMITH brought an action of replevin agamst IVilham Crockett, m the Circuit Court of Dallas County, charging him with having wrongfully taken and detained from the plaintiff eight negro slaves. The defendant demurred ; the- Circuit Court sustained the demurrer ; and on a writ of Error to this Court, Smith assigned this matter as Error.
    
      H. G. Perry, for the plaintiff.
    
      Thoringlon, for the defendant in Error.
   Judge Ellis

delivered the opinion of the Court.

The only question for consideration here is, can this action be sustained, either on the principles of the common law, or by any Statute of this State ? It seems that it would formerly lie in England, for property unlawfully taken from the rightful owner. The remedy seems to have been very ancient, and its abuses seem to have produced the Statute of Maltbridge, which gave the Sheriff’s Court power to try and determine the right of property. But it seems to have fallen into disuse when Justice Blackslone wrote his celebrated commentaries. For he speaks of this remedy as applicable only to cases of distress for rent. In most of the States of this Union it appears to have become obsolete ; and by our Statute of 1812, L. A. 702, distress for rent has been abolished. It was contended in the argument, that this remedy, being summary, would in many cases be preferable to the action of trover or detinue. But as it stood by the old common law, it seems to have been necessary for the plaintiff to sue out a pluries writ before the title could be tried. This same doctrine appears to have been recognized in Pennsylvania. If this be correct, the remedy would generally be delayed, rather than expedited, by resorting to this course. The Statutes of 1 and 2 Philip and Mary, 2 Hen. 7, and subsequent Statutes, appear to have regulated this proceeding in England. But there it appeal’s to have fallen into disuse, except in cases of distress for rent. To induce the Courts of this country to revive this ancient action, subject as it appears to have been to great abuses, the reasons should be strong and the necessity great. I am unable to discover this necessity, while our Courts of Chancery are always open to grant restraining orders and writs of ne exeat, by which the removal of the property can be prevented ; and our Courts of common law, in actions ol trover or detinue, are fully competent to restore it or its value to the party from whom it has been wrongfully withheld. It is the unanimous opinion of the Court, that the judgment be affirmed. Coke Litt. 145. 6 Com. Dig. 224. 7 John. 156. 2 Sellon Prac. 153, 4. 1 Dallas, 157.  