delivered the opinion of the Court:
This Nan action of detinue for the recovery of a slave. The plaintiffs in the court below chum title under their ancestor, William Robbins, The declaration contains two counts. The first count is founded on a supposed case of bailment, and the second .upon possession of property in the plaintiffs, and conversion of it by the defendant. Upon the return of the writ, the defendant applied, and filed two pleas in bar of the action. The first was a plea of non-deti-net, and the second plea of the Statute of limitations. An issue was taken by the plaintiffs upon the plea of non-dotinct, and a replication putin to the plea of the kliatutc, of limitations. The defendant demurred to the replication, and the demurrer was sustained. The plaintiffs then asked leave to plead over, which was granted; and they then filed an amended replication, to which there was a rejoinder, demurrer, and issue, and judgment entered up against the demurrer, and in favor of the joinder to the replication. Upon the issue thus formed the parties went to trial, and there tras a verdict and judgment rendered for the plainiiiS, from which an appeal was prayed and taken by the defendant, and which he now prosecutes in this court. During the progress of' the trial, the defendant filed several ■bills of exceptions to the opinion of the court below. In giving to the jury the instructions asked for by the plaintiffs, and in refusing to give them the instructions that were asked for on behalf of himself. — ■ These bills of exceptions are all regularly signed by the judge, and made part of the record. All the exceptions except two were given by the court upon mere abstract questions that were raised during the trial. The bills of exceptions do not contain, nor incorporate any part of the evidence, or testimony that was adduced upon the trial, this court is wholly unable to seethe relevancy or applicability of the instructions'given or refused. In this stage ¿of the enquiry, it becomes *443important to determine whose duly it was to incorporate such part or portions of the evidence as were essentially necessary to present the questions of law or testimony that wore drawn in controversy by the proof or pleadings. In deciding this point, we necessarily dispose of all the questions raised by the assignment of errors. The science of correct, special pleading has heretofore been fully explained by this court, and it is deemed unnecessary at present to enter again upon that subject. In every legal enquiry, he who holds the affirmative of the proposition voluntarily takes upon himself the burden of proof, and he is bound to establish his proposition, or fail in bis action. The party holding the affirmative must prove it; and this presumption arises not only by intendment and operation of law, but by the voluntary act and choice of the party himself. By applying these plain and obvious principles to the case now under consideration, we shall readily perceive whose duty it was to set out so much of the testimony or proof as would'properly raise the. question of law or evidence contained in the bill of exceptions. In Whitside vs. Jackson (1 Wen. 418) it is decided that the court cannot take notice of any matter that is not specially stated in the ground of the exceptions. And in Jackson vs. Caldwell, (1 Crow. 622,) it is held that a bill of exceptions does not draw the whole matter into examination, but only the the points upon which it was taken; and that the party excepting must lay his finger upon the points which arise either in admitting or refusing evidence, or in a matter of law arising from a fact not denied, in which he is overruled by the court. Frier vs. Jackson. 8 John. Rep. 495.
This is an action of detinue sor the recovery of a slave mentioned in the declaration, and the writ lieih,saith my Lord Coke, where any man comes to the goods by delivery or finding. 3 Co. Lit. 280, b. The plaintiff shall recover the thing detained, and therefore it must be certain that it may be known. Coke entries, 170, b.; 10 Rep. 119, b.; Glanville, title 10, chapter 13, 3 Black. Com. 151. KIn order to ground an action of detinue which consists in detaining, four things are necessary: First, that the defendant came into possession, of the goods; second,that the plaintiff have properly; third, that the goods themselves be of some value; Fourthly, that they be ascertained in point of identity.” In detinue, the plaintiff must prove a general or special property in the goods, and a detainer by the defendant. 2d. Star-Jtie on Evidence, 493. Under the plea of non-dctinct the defendant may give in evidence any matter which shows he is not guilty of the de-*444gainer. 1 Salkeld, 223. Actual possession by the plaintiff is not necessary to maintain detinue. Tunstall vs. McClelland, 1 Bibb, 186. en^e plaintifif a verdict proof of possession in the defendant, anterior to the bringing of the suit, is sufficient, unless he has been lawfully dispossessed; and that is, for him to show. Burnly. vs. Lambert, 1st Washington, 308, Formerly, it was held that detinue did not lie, unless the defendant came lawfully into possession; but that opinion is now overruled, and the action can be maintinedon a tortious taking. Kettle vs. Brunson, Willes, 120, the reason assigned is, if that was not the case, a party might be greatly injured, and have no adequate remedy; for in tresspass or trover damages alone can be recovered, and the thing detained may be of such a description that a judgment for damages would not be complete compensation, &c. Jackson vs. Preston, Cameron & Norwood, 464. In detinue the plaintiff may have judgment for damages and costs, even though the property be restored to. him. So he may have judgment, though the slave for which the action is brought die after demand. 1st Martin R. 18; Shippen vs. Hargrove, 1 Martin, 74; Carrel vs. Early, 4 Bibb, 270.
This action was formerly very little used in England, because the defendant was permitted to wage his law; that is, to exculpate himself on oath, and thereby defeat the plaintiff of his remedy,, which privilege was originally grounded on the confidence, that the bailor reposed in the bailee, and the like, from which arose a strong presumption that the defendant was worthy of credit. 3 Black. Com. 152.— Since the Statute 3rd & 4th William IV, c. 42, sec. 13, abolishing wa-gerof law in all cases, the section is nowfreqently adopted, and in very general use. 1 Ch. Pl. 140, 1, 2. Ithas already been observed thatthe declaration contains two counts: ore upon bailment, and the other upon possession of propety by the plaintiffs, and a supposed conversion by th.e defendant; and the plea of non-detincnt goes to the whole cause of action, and puts in issue the detainer of the property. The plea of the Statute of limitations goes to defeat the plaintiffs’ right to, recover, upon the ground that if the right of property, whether general or special, ever existed in the plaintiffs; that the remedy by which that right could be enforced is barred and cut off. And consequently, that they have no good cause of action now remaining.
To the plea of the Statute of limitations, the plaintiff put in his replication, which alleges “that their right of action is not barred by the Statute of limitations, because they fall within its express saving. *445The defendant’s plea of the Statute of limitations, is, “that the plaintiffs ought not to have or maintain their aforesaid action thereof against him; because he says the said several supposed causes of action, in the said declaration mentioned, did not, nor did either of them accrue to the said plaintiffs at any time, within five years next before the commencement of this suit, and this he is ready to verify, wherefore, &c. The replication to this plea asserts, “ that the plaintiffs ought not to be precluded, because they say that, at the time the cause of action did accrue, all the plaintiffs were infants, and under the age of 21 years, and so continued infants as aforesaid up to the day of in the year of and within five next years before the institution of this suit; and this they are ready to verify wherefore, &c.” — upon which replication there was an issue taken.
The declaration shows that the plaintiffs who brought the action, were Alfred Edwards, and Martha his wife, late Martha Robbins, John R. Robbins, and William Robbins, infants- who sued by their next friend, Polly Robbins, all heirs and legal representatives of William Robbins, deceased. The replication avers that all these plaintiffs were infants, at the time, and under the age of 21 years, within five years next before the institution of this suit. The defendant denies this fact, and that is the issue to be tried by the jury.
The plaintiffs have taken upon themselves the burden of proof, and they are bound to prove that all the persons who sued were infants, when the cause of action accrued to them; and their right of action depends upon establishing that fact. It is true, that the plaintiffs might have put in a special replication, and have averred that Martha Edwards, late Martha Robbins, and the two other infants heirs of William Robbins, deceased, were under the age of 21 years, within five years next before the institution of this suit; and that Alfred Edwards claimed though the right of his wife. This they did not, however, choose to do. The replication asserts that all the plaintiffs were infants, and issue is taken on that fact; and of course the plaintiffs are bound to prove the allegations as laid. They hold the affirmative of the issue, and cannot be permitted to escape from the legal presumption that it imposes. What now was the instruction the court gave upon this point ? On motion of the plaintiffs the court instructed the jury, that it was not nc','T:, av io prove that Alfred Edwards or Polly Robbins were infants within the age of 21 years, within five years next before the commencement of this suit.
*446The declaration avers that Polly Robbins sued as the next friend 0f John R. Robbins, and William Robbins, infant heirs and legal representatives of William Robbins, deceased, and of course she was--a mere nominal plaintiff; but it does not show that Alfred Edwards in the right of his wife: it merely avers that Martha, his wife,. was late Martha Robbins. Therefore, the instruction of the court* that it was not necessary to prove that Polly Robbins was an infant under the age of 21 years, was correct; because the declaration Shows in what capacity she sued, and her infancy was not put in issue-by the replication; neither was it necessary to put in issue the infancy of Alfred Edwards, but the replication has expressly done so; and consequently the plaintiffs had no right to recover unless Alfred Edwards, together with the other infant heirs was saved by the exception in the Statute. The court, however, expressly say, that it was not Hecessary to prove the infancy of all the plaintiffs; whereas, that was-the express point in issue, as averred in the replication; and therefore-the instruction upon the point was evidently erroneous. The right of' the plaintiffs to recover depended upon the fact of the infancy of all of them, and this they voluntarily assumed to prove. The instruction of the court directly contradicts the facts asserted in the replication, and releases the plaintiffs from the affirmative issue, which they held, and were bound to establish. If it was not necessary to prove the infancy of all of them, then why prove the infancy of any one of them? For if it was not necessary to prove that Alfred Edwvrds was an infant, neither was it necessary to prove that Martha Edwards, late Martha Robbins, or that John II. Robbins, or William Robbins, were-infants; consequently, the defendant’s plea of the Statute of limitations did not form a valid bar to the plaintiff;’ right of action.
The Statute of limitations is a good plea, and if the plaintiffs’ cause of action comes within the operation, the remedy by which that right can be enforced is forever destroyed and extinguished.
It necessarily follows, from these positions, that the opinion of the Circuit Court was manifestly erroneous in refusing, first, to give the instruction asked for by the defendant, which was, that to entitle the plaintiffs to recover, it was necessary to prove that they were all infants, and the opinion was equally erroneous in giving the instructions applied for by the plaintiffs, that it was not necessary to prove that Alfred Edwards was under the ageef 21 years, within five years next before the institution of this suit.
*447As tbe decision of this point disposes of the whole case, the court ■does not deem it necessary to examine the other questions raised upon the assignment of errors. They would barely remark that all the other instructions, either given or refused, are mere abstract propositions, and, whether wright or wrong, could have had no effect upon the verdict, so far as the record shows. There is no proof embodied in the bills of exceptions taken by the defendant, and consequently the judgment of tbe court below upon these points must be presumed to be in accordance with the testimony adduced upon the trial; for the rule is that every thing- is to be taken in support of the verdict, and judgment •of the court below; and nothing is to be presumed against its legality, except what affirmatively appears upon the record, or which the court above is bound judicially to take notice of. It is because the pleading affirmatively shows that the opinion of the court below was erroneous upon the issue made up by the parties, that it is now declared to be erroneous.
The judgment of the court below must therefore be reversed with costs, the cause remanded to be proceeded in agreeably to the opinion here delivered; and that the parties respectively, if they shall .ask leave so to do, be permitted to amend their pleading.