
    GENERAL COURT,
    MAY TERM, 1801.
    Smith vs. Williamson.
    Right of possession only, necessary to support an action of replevin.
    A father is the natural guardian of his children, and where they have no other guardian, may maintain replevin for their personal property* *
    This he may do, though the children be females, and upwards of sixteen and under twenty one yeavs ol age, at the time the property is taken from them, or at the institution of the sniti
    Limitations in replevin cannot be taken advantage of unless pleaded.
    ArrijA.li from a judgment in an action of replevin for slaves, rendered in Calvert county court, for the plaintiff below.. The replevin was issued on the 17th * 1 of October 1799, and the defendant pleaded the general issue pleas.
    1, The plaintiff! below, (the present appellee,) at the trial, proved that William Lyles was in 1779, the owner of the slaves mentioned in the declaration. That his daughter Elizabeth intermarried with the plaintiff in that year, and that Lyles gave said slaves to his daughter, upon her marriage. That about the year 1732, tito plaintiff reconveyed the slaves to Lyles. That in the month of May 1783, Lyles gave the slaves to the children of ithe plaintiff by said Elizabeth his daughter, to wit, Elisha, Martha and Elea-‘nov, that thereupon the said slaves, were for five years in the possession of the plaintiff, as the father and natural guardian of his said children; and that after the death of Elizabeth, the plaintiff’s wife, which happened in 1788, Lyles took the negroes again into his possession, and retained them until the time of his death in 1790; that during this last period, Lyles, from bis own confession, was to pay the sum of Si. a year to the plaintiff for the use of his said children, asa hire for the negroes, and had admitted that they were the property of the said children. The plaintiff also proved, that in 1790 he claimed the said negroes of the executrix of Lyles, and that the executrix and the plaintiff agreed to refer the dispute or claim to the negroes to arbitrators; that accordingly an agreement to that effect was drawn, but not executed, and nothing farther was done between them. That said executrix, and those claiming under her, retained possession of the negroes from the death of Lyles until the institution of the present action. Whereupon the defendant prayed the opinion of the court, and their instruction to the jury, that if they should be of opinion, from the evidence offered, that the negroes mentioned in the declaration were the slaves and property of the children of the plaintiff at the time this action was instituted, that then the plaintiff was not entitled to recover; and that their verdict should be for the defendant. But the county court, (Stone, Ch. J.) refused to give that opinion and instruction. But directed the jury, that if they found that the plaintiff had, at the time •of bringing this action, and hath the right to the possession of the negroes mentioned in the declaration, that he can recover m this action; and if the jury find that the said negroes were and are the property of the infant children of the plaintiff as aforesaid, and that no other person was or is guardian, or had the care and custody of the said children, and their property, that then the plaintiff, being the natural guardian of the said children, may maintain this action. The defendant excepted.
    A father* being the natural guar* dinn of his chit* dren, may main*» tain replevin tor their pvopei *y, though the children be ibmales, and upwards of sixteen and under twenty-one years of age, at the time the property is taken from them, or at the’institor» tion of the suit#
    limifetions in replevin cannot be taken advantage of unless' pleaded,
    2, The defendant then offered evidence to prove, that the said Martha, one of the said children of the plaintiff, was dead, and that she died in 17"9l/ that the said Eleanor, another of the said children, was born about the year 1780, and that the said Elisha, the other of the said children, was born about the year 1788. Whereupon the defendant prayed the opinion of the court, and their instruction to the jury, that if they were of opinion, from the evidence offered, that the said Eleanor was upwards of sixteen years of age at the time this action was brought, that in such case the plaintiff was not entitled to recovef in this cause. But the county court, (Stone, Cb. J.) refused to give the opinion as prayed; but was of opinion, apd so directed the jury, that if they found that the said Martha was dead, and that she died in the year 1791, and that the said Eleanor was not sixteen years of age when the taking of the negroes aforesaid happened, nor twenty-one years of age when this action was brought, and that the said Elisha was not sixteen years of age when this action was brought, that the plaintiff may well maintain his action. The defendant excepted.
    3. The defendant gave in evidence to the jury, that in 1793, Mary Lyles, the executrix of William Lyles, was in the actual possession of the negroes mentioned in the declaration; that in that year she sold the said negroes to the defendant for the sum of Jf50; that the purchase money was paid for the said negroes by the defendant; that from the year 1793 to the issuing of the writ in this cause, the defendant was in the actual adversary possession of the said negroes, claiming them and using them as his own; and that during all that time the plaintiff in this, action was not under any of the savings mentioned in the third section of the act of assembly, entitled, “An act for limitation of certain actions, for avoiding suits at law,” passed in the year 1715, ch. 23, Whereupon the defendant prayed the opinion of the court, and their instructions to the jury, that if they should he of opinion, from the evidence offered, that the defendant had been in the actual adversary possession of the said negroes, by the purchase aforesaid, from the year 1793 to the issuing of the original writ in this cause, that during all that time the defendant resided in Calvert county in this state, and that during the time aforesaid the plaintiff was resident in this state? and was not under any of the disabilities, and did not prove himself under any of the savings mentioned ip the act of assembly aforesaid, that then the plaintiff was not entitled to recover in this action. But the county court, (J&lqne, Ch. J.) refused to give the opinion and direction, as prayed; but was of opinion, and so directed the jury, that inasmuch as the act of limitations, is not pleaded in this cause, that the adversary possession aforesaid of the defendant is no bar to the plaintiff in this, action. The deiendant excepted.. Verdicts and judgment being for the plaintiff, the defendant appealed to this court.
    
      Gantt, for Appellant.
    
      ICilty and Johnson, for the Appellee.
   The GeNeiiai Court affirmed the judgment of the County Court, concurring with that court in the opinions expressed in all the bills of exceptions.  