
    CONSTITUTIONAL COURT,
    CHARLESTON,
    JAN. 1804.
    Gourdine v. Graham.
    If an action of trover for the conversion of a slave, be brought within four years after the cause of action accrued, and discontinued ; and after-wards, but not within four years of the accrual of the cause of action, ano- ■ ther action on the ease, for harbouring the same slave, be brought, the latter action cannot be considered as a continuance of the former, so as to avoid the bar of the statute of limitations.
    If one of several joint owners of personal property,.be a minor, and the rest of full age, the rights of all will be saved from the operation of the statute of limitations, by the infancy of the minor. [Vide Henry v. Means, 2 Hill, 329, contra.]
    Motion for a new trial. Action on the case for harbouring, to try the title to certain negroes, tried in Georgetown district, betore Johnson, J. The act of limitations was pleaded by the defendant; and it appeared in evidence, that the plaintiff had pur. chased the right of two parceners, or joi it heirs of an intestate, of the negroes in question. That an action of trover had been commenced within four years after the eldest co-heir had attained the age of twenty one ; which was discontinued, and the present action was brought two years afterwards, but not within four years after the other co-heir came of age. The presiding judge charged in favor of the defendant, whereupon there was a verdict for the de« fendan . Two questions were made.: 1st. Wtieiher the infancy of a joint proprietor, will avail other proprietors, who are adults-2d. Whether the seco.id action in this case, could be considered asa continuance ot ihe first action.
    For the plaintiff, the same arguments were urged as in the case preceding, relative to the first question, and the. same authorities were quoted : and it. was insisted, that die same doctrine would apply in a case concerning personal property, as in a case concern.ng real est te. Lstt. Sect. (166 Where the right is insepa. Table, the ri^ht of one must extend to the whole, from necessity, because their several rights e'annoi be distinctly known and severed, And as their'remedy must be joint, and an infant may refuse to join, the same protection the law gives the infant, should be extend. e<;' to fiie adults. Co. List. 364. Runn. Ej. 223. An infaut may sue, but be must prosecuie by guardian ; but suppose the guardian appointed will not accept the guardianship, shall the joint owners who are of full age suffer in that event 1 The law ought not to bo construed to work injustice, or require impossibilities. Bac. Abr. Tit. Severance. Judgment of severance cannot be given in a personal action. Continual claim by one jointenant shall avail others not of age in respect of the pi ivity of estate. Co. Litt. 252.
    On the other ground it was contended, that the second action might be considered as a continuance of the first, being brought for the same cause of action in the same right, only a little variant in form: and that it would work great evil, if this construction should not prevail; because otherwise a man might bring his action in good time, but by a fatality not unfrequent, might mistake the form of his remedy, and before the mistake could be rectified, he would be barred by the act of limitations. He ought to be allowed to apply to the court for leave to change his remedy, to prosecute the same right in a different form.
    For the defendant it was contended, that the parties of age might have compelled the minors to join in a suit to recover their joint right. Empson v. Shackleton, 5 Bur. 2604. Wherever one may be dis-seized, another may acquire a right by the disseizin. Cited Pothier on Contracts, 2 vol. 148, respecting the distinction between contracts divisible and indivisible. Indivisible as a horse, or slave. Divisible as sheep, &c. So slaves, as here, were capable of division. 1 Poth. 188. 2 Polh. 148. Jones on Bailm. 321. The majors may be barred, although the minors may not. 5 Com. Dig. 556 — 7. Strange, 576. Bac. Abr. Tit. Severance. 1 Inst. 139.
    Further it was contended, that the second action could not be connected with the first, so as to make a legal' continuance thereof. Impey’s Prac. 561, was cited to shew the effect of a discontinuance of process. The second suit was not brought within a reasonable time after the discontinuance of the first. The opportunity of prosecution was lost. And a discontinuance implies a total abandonment of that action, and makes it as if it never had existed. 3 Term. Rep. 362, 632. A continuance must be by further proceedings on the original suit.
   The court were of opinion, that inasmuch as the rights of those persons under whom the plaintiff claimed were conjunct, and incapable of a distinct and several exercise and operation in law, he-fore partition, they must have sued jointly ; and although they might sue separately, and recover, yet the part owner so recovering could only recover a joint right, i. e. an undivided moiety of the whole, and could only enjoy the thing recovered as joint owner, and subject to the claims of the other co-proprietors : therefore the right of one of them, being saved by virtue of the exception in ille act ot limitations, saves the rights of the others, as the whole of their rights joined together constitutes bat a single .right, capable of supporting an action ; and their right of action could not be barred, until the right of each' joint owner was barred. On the other point, the judges were all of opinion, that the second action could not be considered a continuance of the first on any ground. The second action was different in form from the first. It was not brought until twelve months after the discontinuance of the first. A discontinuance cannot be .continued. If an irregular action be brought, it will prevent the limitation act from barring. Bac. Abr. Tit. Limitations. But a nonsuit is different from a discontinuance, and the second action must appear to be a revival of the original action.

Presóle, Desaussure, and Gaillard, for plaintiff. William Bratton, for defendant.

A new trial was granted.

Present, Waties, Johnson, Trezevant, and Brevard, Justices.

Note. See 2 Bos. & Pul. 157, as to continuance. Writ issued 8th Nov. 1799 Capias per continuance issued 13th Nov. 1799. The first was within a year after the offence was committed; the latter not. The first was not returned; the latter was served on the defendant It was decided, that the first writ ought to have been returned, otherwise the second could not be connected with it. See 6 T R. 617. 7 T. R. 6.

If one and the same right, belongs in common to many persons, the action entered by any one of them will interrupt the prescription for them all: for it is the whole right that is demanded, and every one preserves by this demand, that share of the right which belongs to him. See Domat’s Civil Law, b. 3, see. 4, 1 vol. 474, and see 2 p. 459.  