28 Md. 176 | Md. | 1868
delivered the opinion of this Court.
This action of trespass for taking and carrying away certain mine cars and mining implements, was instituted by the appellant against the appellee, and tried on issue joined on the plea of non ml. The record is very confused and defective, and it becomes necessary to state substantially what we consider to be the undisputed facts in the case. Tough in his life time was assignee of a lease of certain mining lands and coal mines, of which Neff was the owner and lessor. By the lease and its modifications, the lessees were to pay Neff a certain rent for the surface of the land and a rent or royalty of fifteen cents per ton for the coal mined thereunder. The lease was assigned to Everett, who on the 4th of December, 1857, sold and assigned the same to Tough for $6,000. Tough continued to work the mines under the lease till his death in September, 1861, when Everett was áppointed his administrator, took possession of his personal estate, and under order of the Orphans’ Court advertised the same for sale. On the 26th of March, 1862, Avery and others filed a petition in the Circuit Court for Allegany county, alleging that Tough died largely indebted to them and others, for wages due for work and labor done for him in his business of mining, and praying for an injunction to restrain the administrator from selling the property and for the appointment of receivers to take charge thereof. This petition was filed under the miners’ law for Allegany county, contained in the Code of Public Local Laws, Art. 1, secs. 99 to 103,-inclusive, and its allegations will be found stated more at length in 19 Md. Rep., 136. The injunction was granted March 30th, and on the 7th of April, Everett, the only party made defendant, filed his answer
First Exception: The plaintiff having proved the taking of the property by Neff or by his authority and its value, offered in evidence the proceedings in the Circuit Court on the petition of Avery and others, vs. Everett, and then rested. The defendant then gave in evidence the lease and its modifications, and the assignments thereof, and then offered to prove by the witness Parker, that he had a copy of the books of accounts of Tough, showing the'amount of coal mined by him after February 1st, 1861, and also offered in evidence the distress warrant of the 8th of May, and the proceedings thereon. To the admissibility of all said evidence and to each and every part thereof the plaintiff objected, but the Court overruled the objection and permitted the evidence to go to the jmT-
There was no error in this ruling if any part of the testimony objected to was admissible The objection is a general one to all and each and every part of the testimony. At this
Second Exception: The plaintiff' then offered in evidence the distress warrant and papers of the 17th of April, and proved that the bailiff under this warrant seized all the personal property belonging to Tough at the time of his death, on the demised premises, including all that was subsequently taken and a good deal more. The defendant then offered in evidence the agreement between Neff and the petitioning claimants, before stated, and proved that the receivers consented to this agreement and agreed with Neff that he should abandon his distress, and that the receivers should and did receive from Neff, under and on the terms of this agreement, the property which he had taken under his said first distress. The plaintiff objected to the admissibility of the agreement and of the evidenee of consent thereto by the receivers, but the Court overruled the objection and allowed the evidence to go to the jury. This ruling is also correct, for if the testimony was admissible for any purpose there was no error in admitting it. It was competent for the defendant to show the agreement and the assent of the receivers thereto, in explanation of the motives under which he acted in abandoning his first distress, and in mitigation of damages, in case vindictive damages should be claimed by the plaintiff. It tended to
Third Exception: This exception-taken fto the refusal to grant the plaintiff’s prayers, six in number, presents the main question in the case.
The law is well settled that when a landlord has levied a distress, and taken thereunder property of sufficient value to satisfy the rent then due, he cannot, without the consent of his tenant or other lawful cause, abandon his proceedings and then levy a second distress for the same rent, upon the same or any other property of his tenant. “If there is a fair opportunity and there is no lawful or legal cause why he should not work out the payment of the rent, by reason of the first distress, his duty is to work it out by the first distress, and he cannot distrain again. * * * The principle upon which, as a general rule, a landlord cannot distrain twice is, that he must not vex his tenant by the exercise upon two occasions of this summary remedy.’’ 8 Excheq., 648, Bagge vs. Mawby; 50 Eng. C. L. Rep., 961, Dawson vs. Cropp; 45 Eng. C. L. Rep., 123, Lear vs. Caldecott; 6 Whart., 452, Quinn vs. Wallace. The same authorities show that the tenant’s remedy for the taking under the second distress is trespass, case or trover. The question then is, was there in this case any justifiable cause shown for the abandonment of the first distress? The agreement between Neff and the petitioning claimants, and the assent of the receivers thereto, do not, in our opinion constitute & sufficient excuse. Neff was not a party to the proceedings instituted by these petitioners; there is no pretence that Everett ever assented to this arrangement, and no agreement between Neff and these claimants could affect, injuriously, his rights, nor could the assent of the receivers thereto have any such effect. The duty
Judgment Reversed and procedendo awarded.