Weare v. . Burge , 32 N.C. 169 ( 1849 )

We see no error committed by his Honor. On behalf of the defendants it is contended that the plaintiffs had neither the title to the slaves sued for nor the 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 this 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 sec. 10, ch. 2, Revised Statutes, as not abating by the death of the person converting the property. The first objection is untenable. The second is equally so. In actions upon a contract, all who are entitled to sue for its violation must be made parties plaintiffs, and the nonjoinder of any many be taken advantage of an the general issue. But in actions exdelicto, if any person is omitted who ought to be made a party plaintiff, the defect must be brought to the notice of the court by a plea in abatement (1 Ch. Pl., 60); and the (171) 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 third 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 sued 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 bars the remedy only and not the right. If the persons omitted 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. 7 Cranch, 154; Montgomeryv. Wynns, 20 N.C. 667. 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 it, and went to trial as if the plaintiffs were 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 fourth 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.

Cited: Cameron v. Hicks, 141 N.C. 36.

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