#### JOHN McLEAN AND WIFE *vs.*MARY ANN JACKSON.

3n detinue by a husband and wife Tor a slave, when it appeared that the slave had been given to A. for life, and after her death to the *feme*plaintiff, who at the death of the tenant for life, was an infant and married, and had never since been discovert; Held, that the action was not be barred by the Statute of limitations.

Appeal from the Superior Court of Law of Pasquotank County, at the Spring Term 1.851, his Honor Judge Dick presiding.

This is detinue, for a female slave, named Anne, and three others, who are her children.' The pleas were *non detinet,*and the Statute of limitations. On the trial the case was this: Shadrack Davis bequeathed Anne, when quite young to Mrs. Sexton for her life, and then over to Susanna Williams, the feme plaintiff, who afterwards inter-married with the other plaintiff, while she was an infant and before the death of Mrs. Sexton, which happened in the year 1833. The defendant alleged, that the plaintiff John sold the girl Anne to one Owen Williams; and to establish the sale evidence was given, that soon after the death of Mrs. Sexton, one Shadrack Davis, junior, had the girl in possession, claiming her as his, and that the plaintiff John in the presence of the girl mentioned to a witness that he had sold her too low to Owen Williams and that he ought to have had $50 more for her; and that he said to another witness, that he had sold her to said Williams. Evidence was also given, that the plaintiffs resided in Pasquotank before 1833 and have resided there ever since ; and that Shadrack Davis junior resided there until his death in 1837, and that then hís administrator sold the girl publicly to one Jackson, and thatheand the defendant, who claims under him, have con*150tinued the adverse possession of her and her children in the same County up to the bringing of this suit in 1850.

The Court instructed the jury, that, if they should believe upon the evidence, that the plaintiff John McLean had sold Anne to Owen Williams, they ought to find for the defendant. And if they should not find that such a sale was made, but should believe that Jackson purchased the girl in 1837, as stated by the witnesses, and that he and the defendant under him have held her and her issue ever since as their own, the plaintiffs were barred by the Statute of limitations. The jury found for the defendant and the plaintiffs appealed.

*W. N. H.*Smith, for the plaintiffs.

*Ehringhans*and Heath, for the defendant.

Ruffin, C. J.

There is error in the instruction uposa the Statute of limitations. The action is in the-name of husband and wife in he? right, and would survive to her. There was no adverse possession until after the death of the tenant for life, and, consequently, it commenced during the coverture, which still exists. By the express words in the saving in the 4th section of the Statute of limitations, tbé feme plaintiff would have three years after being discovert to bring this suit in her own name, because she was under coverture, when the cause of action arose. Of course, she-is at liberty to bring suit at any time within that period,, though, if it be brought during the coverture, her husband! and she must join by reason of her want of capacity to sue alone. It is probable, indeed, that the action would not lie in the name of the husband and wife, for the reason that the right vested in the husband upon the death of Mrs. Sexton, as no adverse possession at that time appears. But that point is not raised, and therefore it may be that the facts are not stated respecting iu Consequently, the Coart cannot *151act on it; and as there was error in the instruction, as given the judgment must be reversed.

Per Curiam. Judgment reversed, and *-venire de*novo..