In order to avoid the plea of the statute of limitations to an
action by joint tenants, it is necessary to show that all the
plaintiff's were under a disability to sue.
It is a rule of pleading that a replication should contain of
itself a full and complete answer to the bar, and that a joint
plea, which is bad, affects with its consequences all the parties
joining in it.
It seems to be a settled rule that all the plaintiffs must be
competent to sue, otherwise the action cannot be supported.
Page 11 U. S. 157
This was an action of trespass for mesne profits after a
recovery in ejectment by the present plaintiffs against the present
defendant, who pleaded the statute of limitations, to which the
plaintiffs replied in substance that Christiana, the wife of one of
the plaintiffs, and Elizabeth, the wife of another of the
plaintiffs, in whose rights they sue, "were
femes covert
when the cause of action accrued, and have ever since continued
femes covert" -- and "that Kitty Hunter," one of the
plaintiffs, "was a
feme covert," and that the other
plaintiffs, in whose right the suit was brought, were infants at
the time the cause of action accrued and also at the commencement
of the action. To this replication there was a general demurrer and
joinder, on which the court below rendered judgment for the
defendant.
Page 11 U. S. 158
STORY, J. delivered the opinion of the Court as follows:
The plaintiffs in error brought an action of trespass
quare
clausum fregit -- to which the defendant in error pleaded the
statute of limitations. The replication in substance states that at
the time when the cause of action accrued, Christiana, wife of one
of the plaintiffs, and Elizabeth, wife of another of the
plaintiffs, "were
feme coverts, and ever since have
continued
feme coverts", and "that Kitty Hunter," one of
the plaintiffs, "was a
feme covert," and that the other
plaintiffs in whose right the suit was brought, at the time when
the action accrued and also at the commencement of the suit, were
infants. To this replication there is a general demurrer and
joinder, on which the court below gave judgment for the
defendant.
It is contended by the defendant that this replication is
insufficient inasmuch as it does not allege that Kitty Hunter
continued a
feme covert until within five years, the time
prescribed by the statute of limitations for the pursuit of this
remedy. And it is further contended that even if the replication be
good, yet the plaintiffs ought not to recover because the
declaration charges the trespass by way of recital -- "for that
whereas the defendant with force and arms," &c., and not by
positive and direct allegations as the law requires. On this last
exception the Court does not intend to give any opinion, but unless
the point were fully settled by authority, it would feel little
inclination to sustain an objection which would seem directed more
to the form than the merits of the action.
The objection to the replication deserves more consideration. It
is certainly a rule of pleading that a replication should of itself
contain a full and complete answer to the bar, and that a joint
plea which is bad affects with its consequences all the parties
joining in it.
Page 11 U. S. 159
In the present case it may be true that Kitty Hunter was a
feme covert at the time when the action accrued, and yet
it may be equally true that five years have elapsed since the
disability was removed. It was therefore incumbent on the
plaintiffs not barely to show a coverture, but, by a proper
averment, to show its continuance to a time within which it would
have been a perfect avoidance of the bar. The objection then would
have been fatal in a several action brought by Kitty Hunter.
But it is said that though the replication be bad as to one of
the plaintiffs, yet it can only bar he; that the infancy or
coverture of the other plaintiffs entitles them to a recovery in
this action for the injury done to them; and that, as parceners and
tenants in common are compellable to join in actions of this
nature, it would be hard to affect them with the disability of a
co-tenant.
It seems, however, to be a settled rule that all the plaintiffs
in a suit must be competent to sue, otherwise the action cannot be
supported, and the case of
Perry v. Jackson, cited from 4
Term Reports 516, decides that a plea of the statute of limitations
which is good as to one partner bars them both in a joint action.
When once the statute runs against one of two parties entitled to a
joint action, it operates as a bar to such joint action.
It is therefore the opinion of the Court that as this answer to
the objection fails, the replication must be adjudged insufficient,
and of course the bar must prevail.
Judgment affirmed.
