#### JAMES WEARE & AL. vs. JOHN BURGE & AL.

An action of trover does notábate by the death of the paity doing the wrong, under the Rev. Stat. Ch. 2, Sec. 10.

In actions of contract, the parties must all join in the action, or advantage may be taken of the non-joinder on the general issue; but, in actions of tort, the noii-joinder must be pleaded in abatement.

Where only one, of several tenants in common of a negro, su s in tort, tha Btatute of limitations cannot operate upon him, though it might against all, if his co-tenants, against whom it was available, joined in this action. Quere, how would It be, if the objection had been taken by a special plea 1

The case of Montgomery v. Wynns, 4 Dev. <f- Bat. 527, cited and approved.

Appeal from the Superior Court of Law of Rutherford County, at the Fall Term 1848, his Honor Judge Manly presiding.

The plaintiffs, jointly with four other persons, were the owners of the slaves sued for, by gift from their grand father Robert Webb, the testator of the defendants. At the time of the gift, all the donees were infants. The action is in trover for an alleged conversion by the testator. In order to shew the conversion, it was proved, that the donor came to the house of the mother of the plaintiffs, who was his daughter, and told her that she must give up to her brother, Elisha Webb, who was present, the negroes in controversy, or he would not convey to her a title for a tract of land she had purchased of him. . And, a few hours after, a slave, by the name of Peter, went to the house of Mrs. Weare, with a wagon and team, all of which had before that time belonged to Robert Weare, and carried off the negroes, without the leave of Mrs. Weare. At the time the action was brought, the right of action of all the donees was barred, by the statute of limitations, except *170that of the plaintiffs. The defendants objected to the plaintiffs’recovery, on four grounds: 1st. That trover would not lie. 2nd. That two of the six donees could not maintain the suit; the other four ought to be joined. 3rdly. That, part being barred by the statute of limitations, all were brtrred; and 4thly,that there was no conver-' sion. His Honor ruled the first three objections against the defendants, and left the question of the conversion to the jury,- as one of fact, after instructing them as to the law on the subject. The jury found that there was a conversion. And from the judgment thereon the defendants appealed.

Baxter, for the plaintiffs.

Bynum send Gaither,-for the defendants.

Nash, J.

We see no error committed by his Honor. On-behalf the defendants it is contended, that the plaintiffs had neither the title to the slaves sued for, ncr th.e possession. The case states, that the gift by Robert Webb was to the plaintiffs and other children, and the negroes being taken from their mother, with whom they lived, being infants, were taken from them — her possession being "their possession. The title was, therefore, in them, and they were entitled to the present possession. The defendants are answerable in this action for a conversion by their testator. The. action of trover is one of those enumerated in the 10th" sec. of the 2nd ch. of the Revised Statutes, as not abating by the death of the person, conVferting the property.- The first objectio'n is untenable, íhe secodd is equally "so. In actions upon a contract, all who are entitled to sue for its "violation,- must be made parties plaintiffs, and the non joinder of any may be taken advantage of, on the general issue. But in actions ex defacto, if any person is omitted, who ought to be made a party plaintiff, the defect must be brought to the no*171tice of the Court, by a plea in abatement, 1 Ch. Pl. 60; and the defendant cannot avail himself of the objection in any other mode, although it appear on the face of the declaration. 1 Saund. 201. In such, a case the defendant may avail himself of the omission, by an apportionment of the damages on the trial. 1 Ch. PL 66.' The 3rd objection is, as to the operation of the statute of limitations. It is urged that, when the Statute has begun to run, nothing stops it, and .as the donees, who have not .sped, are barred, that these plaintiffs, having the same title to the negroes, are also barred. It will be recollected, that the statute, which is relied on, b-irs the remedy only and not the right. If the persons omitt.ed had been joined, it would have been a joint action, and the Statute being a bar to a portion of the plaintiffs, would have been a bar to that action, 7th Cranch 154. Montgomery and Wynns, 4 Dev. & Bat. 527. What would have been the .effect of a plea in this case, we are not called on to decide. The defendants did not avail themselves of jt? and went to trial, as if the plaintiffs w.er.e -the .only persons, who ought to have sued, and cannot in„this action avail themselves of the disability of persons, who are not parties to the action.

The 4th objection cannot avail the defendants. The evidence of a conversion by the testator, Webb, was slight, it is true, but we cannot say there was none. He went with Elisha Webb, his son, to Mrs. Weare, and told, her she must give up the negroes to Elisha, or he would not make her a title to certain land, which he had sold her. In a few hours thereafter, the negroes were .carried off by a negro man in a wagon, and the negro and wagon and horse all had before that time belonged to the testator. There was, then, evidence to go to the jury, and.the-. question was fairly and fully left to them, and they have found that the testator had converted them.

Per Curiam,

Judgment affirmed.,