#### *Elam v. Bass’s Executors.

Argued Saturday, November 12th, 1814.

i. Detinue† — Plea of Non Detinet — Statute of Limitations.)‡ — The defendant in detinue may protect himself, on the plea of non detinet, (without pleading the act of limitations,) by proving that he, and those under whom he claims, had possession of the property in controversy more than five years before the emanation of the writ.

3. Same — Same — Same — Suspension — Dismission — Legal Proceedings.§ — And such evidence cannot be rebutted by the plaintiff’s proving that, before the *131five years had elapsed, lie brought a suit in chancery to recover the same property; (which suit was dismissed on the ground that his claim was exclusively cognizable at law;) and that, within one year after such dismission, he took out the writ in detinue.

See Gray’s admx. v. Berryman, ante; and Newby's admrs. v. Blakey, 3 H. & M. 57.

In an action of detinue, brought by the appellees against the appellant, on the 8th of October 1810, for several slaves, the defendant pleaded non detinet and the act of limitations ; on which pleas the plaintiffs joined issue. Afterwards, by consent of parties, the plea of the act of limitations was withdrawn, and a jury impanelled to try the cause upon the issue joined ; whereupon, the defendant, on his part, “proved that he and those under whom he claims had possession of the slaves in the declaration mentioned for more than five years before the emanation of the writ in this action ; to wit, ever since the 13th day of December 1804 : to rebut which testimony, and to avoid the operation of the statute of limitations, the plaintiffs offered to introduce the record of a suit, lately pending in the Superior Court of Chancery of Richmond, wherein the plaintiffs in this action were plaintiffs, and the defendant in this action, together with his wife Elizabeth Howlett, and Judith Bass administratrix of Edward Bass, deceased (under whom the now defendant claims) were defendants, the object of which suit was to recover for the now plaintiffs the same two slaves, Dolly and her child Polly (among others,) to recover whom this suit is broughtthe record of which suit was exhibited in hasc verba ;(1) “and it appeared, from the said recited record, that the said suit in chancery was commenced within less than five years after the said 13th of December 1804, (at which time the possession of the defendant and those under whom he claims accrued,) the said suit in chancery having been commenced on the 8th day of April 1807; and it was admitted that the slaves Doll and Polly in the declaration mentioned are the same slaves as the slaves Doll and Polly in the above recited record mentioned : and it appeared by cornparison *of the date of the decree in the said suit in chancery, (which was the 21st Eebruary 1810,) with the date of the writ in this suit, (which is the 8th of October 1810,) that the writ was sued out within one year after the rendition of the said decree : whereupon, the defendant by counsel moved the court to exclude the above recited record from going in evidence to the jury ; but the court overruled the said motion, and suffered the said record to be read in evidence, to avoid the effect of the statute of limitations so as aforesaid relied on by the defendant in his defence ; to which opinion the defendant by counsel excepted. Verdict and judgment for the plaintiffs, from which the defendant appealed.

Wickham, for the appellant.

Eeigh, for the appellee.

Wednesday, December 7th, 1814,

†

 Detinue. — See monographic *note*on “Detinue and Replevin” appended to Hunt v. Martin, 8 Gratt. 578.

‡

Same — Plea of Non Detinet — Statute of Limitations. —To the point that a defendant, in an action of detinue, may protect himself on a plea of non detinet by proof of five years’ possession of the property before the emanation of the writ, the principal case was cited in Austin v. Jones, Gilm. 355. And in Layne v. Norris, 16 Gratt. 240, Judge Moncure, who delivered the opinion of the court, citing the principal case and Garland v. Enos, 4 Munf. 504, said that whenever the act of limitations would be a bar to an action for property, it gives to the defendant such a title to the property as enables him to maintain his defense under the general issue, and would even enable him to maintain an action for the property. To the same effect, the principal case and Enos v. Garland, 4 Munf. 504, are cited by Stanard, J., in his opinion in Owen v. Sharpe which is appended to Montgomery v. Rose, 1 Pat. & H. 9, 10: Morris v. Lyon, 84 Va. 334, 4 S. E. Rep. 734; Huffman v. Alderson, 9 W. Va. 623.

For when the period prescribed by statute has once run, so as to cut off the remedy one might have had for the recovery of property in the possession of another, the title to the property, irrespective of the original right, is regarded in law as vested in the possessor, who is entitled to the same protection in respect to it which the owner is entitled to in other cases. It is vested as completely and perfectly, and is as safe from legislative interference as it would have been if it had been perfected in the owner by grant, or any species of assurance. Thornburg v. Bowen, 37 W. Va. 543. 16 S. E. Rep. 827, quoting from Cooley Const. Lim. 365, and citing the principal case. To the same effect, the principal case is cited in Hall v. Webb, 21 W. Va. 325.

See further, monographic *note*on “Limitation of Actions" appended to Herrington v. Harkins, 1 Rob. 591.

§

 Statute of Limitations — Suspension—Dismissed Legal Proceedings. — See principal case cited in *foot-note to*Gray v. Berryman, 4 Munf. 181; Catlett v. Russell, 6 Leigh 372.

(1)

 Note. See a report of this case, in the Superior court of Chancery, 4 H. & M. 478. — Note in Original Edition.

the president pronounced the court’s opinion, that the five years quiet possession of the slaves in controversy, before the institution of the appellee’s action at law to recover them, vested the legal right to the slaves in the appellant, and those under whom he claims; and that, according to the decision of this court in the case of Gray v. Berryman, the suit in chancery, instituted by the appellees for the recovery of them, is no bar to the act of limitations stated in the bill of exceptions ; and that the said judgment is erroneous.

Judgment reversed, verdict set aside, and cause remanded for a new trial.