| Md. | Jun 19, 1862
delivered the opinion of this court.
This action was brought by the appellee against the appellants, for that they converted to their own use, and wrongfully deprived the appellee, of the use and possession of her piano.
The appellants, by their joint plea, denied that they, committed the wrong alleged.
At the trial of the cause, after the evidence had been submit ted to the jury, the defendants offered the following prayers:
“The counsel for the defendants prays the court to instruct? the jury, that there is no evidence in this case that Adam Snively, one of the defendants with John Keys, deprived the-plaintiff of the use and possession of the plaintiff’s goods, nor that said Snively, with said Keys, converted the plaintiff’s said goods to the use of. said Snively and said Keys, and that, as-against said Snively, said plaintiff is not entitled to recover in this case.
“2nd. .The defendant-further prays the court to instruct the-jury, that if they believe that.damages were sustained by the1
Which prayers the court rejected, but instructed the jury, that “if the jury shall find from all the evidence in this cause, (and find the same to be true,) that at the time of the judgments and execution issued in this case, and provided the jury find the same to have been rendered and issued, the property (a piano) was then in the possession of Mrs. Fahnestock, and so held by her under a bona fide bill of sale or deed, which was of record, and that she held it under this title, then the right of property and possession of the same was absolutely in her, and the defendant in seizing the said piano under a magistrate’s execution, has been guilty of a trespass, for which the plaintiff'is entitled to such damages as the jury may find upon all the facts and circumstances of this case.”
To the rejection of the defendants’ prayers, and to the instruction of the court, the defendants excepted.
As there was no evidence, whatever, that Adam Snively participated in depriving the appellee of the use and possession of the piano, or in any manner sanctioning the acts of Keys, the other .defendant, the appellants’ first prayer should have been granted. See 1 Chitty's Pl., 80, and cases there referred to.
The second prayer of the appellants was properly rejected. A plaintiff', in an action of trespass, may give in evidence for the purpose of enhancing the damages, the circumstances which accompanied and gave character to the wrong, and any inconvenience and injury occasioned to the plaintiff by taking the goods away under the peculiar circumstances of the case, are proper to be considered in estimating the damages of the plaintiff and the punishment of the defendant. See 12 Md. Rep., 108. 17 Md. Rep., 23.
As to the instruction given by the court-:—However, as a general rule, it may be proper to grantor refuse prayers in the terms
We consider the instruction of the .court manifestly defective in this important particular, that it makes no distinction, as to the defendants, in view of the evidence, and the language of the instruction is not explicit and intelligible to the jury as to the assessment of damages. Though the court used the word “defendant,” it is clear that the instruction was intended to embrace both defendants, and to submit the law of the case to the jury in .that .view, thus faking fi;om the jury the consideration of the material facts as to the participation of Snively in the alleged trespass, which it was necessary for the jury to pass upon, whatever might have been the state of the evidence. See 10 Md. Rep., 346. 16 Md. Rep., 445. Entertaining the opinion that the court below improperly rejected the appellants’ first prayer, and that the court’s instruction was erroneous, the judgment must be reversed.
Judgment reversed mid pr.ocedendo awarded.