
    MILNER vs. DAVIS.
    
      From the Madison Circuit Court.
    
    Hardin, for appellant; Talbot, for appellee.
    Nov. 30.
    Trover, for slaves; plea, statue of limitations; replication, the infancy of one of the plaintiffs, concluding with a verification; no rejoinder was filed, but the record stated that the defend’ts joined issue; verdict for the plaintiff: Held, that no judgment ought to have been rendered.
    The infancy of one plaintiff in an action of trover, will not prevent the statute from running against all.
   Opinion of

the Court.

THIS was an action brought by Richard Davis and Lewis Davis, by their next friend, and John Davis, Robert Brooks and Polly his wife, and Thomas Santer and Polly his wife, against Benjamin Milner, for the trover and conversion of a slave. The defendant pleaded, 1st, not guilty, upon which issue was joined; and 2dly, not guilty within five years before the commencement of the suit.

To the second plea the plaintiffs replied, in substance, “that the said Richard Davis was, at the time the cause of action accrued, an infant under the age of 21 years, and so continued until the emanation of the plaintiffs’ original writ in this case,” and concluded with a verification. To this replication there is no rejoinder; but, after stating the plea and replication, the record adds, “ and the defendant joined issue.”

On the trial in the court below, the plaintiffs obtained a verdict and judgment, to which the defendant prosecutes this writ of error.

There was evidently no issue joined upon the second plea. The replication does not traverse the allegations of the plea; but attempts to avoid it, by alleging new matter; and an issue could have been formed upon the replication, only by the defendant’s rejoining and traversing its allegations. The verdict, therefore, cannot be supposed to have decided either against the truth of the allegations of the plea, or in favor of the truth of those in the replication, and of course was insufficient to warrant the judgment of the court.

The want of rejoinder by the defendant in the court below, would not, perhaps, be an available objection, if the plea were defective, or the replication contained matter which, in law, was a sufficient answer to the plea. But the plea is unquestionably a good bar to the action; for the statute of limitations allows an action of trover and conversion to be brought only within five years after the cause of action accrued, unless the person or persons entitled to such action shall be within some of the exceptions contained in the statute. And that the replication is no sufficient answer to the plea, is no less incontrovertible; for the replication only alleges the disability of one of the plaintiffs, and it is now well settled, that where several persons are entitled to an action, in order to avoid the effect of the statute of limitations, the whole of them must labor under the same disability.

There are other points made by the assignment of error, which arose in the progress of the trial of the cause in the circuit court; but as they may not again occur, when the issue shall be properly made up, on the plea of the statute of limitations, we have not thought it material to notice them.

Judgment reversed.  