12 Md. 491 | Md. | 1859
delivered the opinion of this court.
This is an action of replevin, and comes before us on the ruling of the court below on an agreed statement of facts. The suit involves the title to a piano. The facts agreed upon, which are material to be stated for the decision of this case, may be thus enumerated: The piano in controversy belonged to the plaintiffs, and was by them hired to one Stinebecker, a music teacher, in Cumberland, in the summer or fall of the year 1854; Stinebecker boarded and lodged with one Helfelfinger, the keeper of the “Revere House,” and the tenant of the defendant. The “Revere House” was a public hotel. After the piano had been for some time in the room occupied by Stinebecker, in consequence of his removal to a smaller
The question which arises on this state of facts is, was the piano, so circumstanced, under the law, exempt from liability to distress for rent? We are of the opinion it was not.
We have carefulIy examined the cases referred to by counsel in argument, and duly weighed the reasons addressed to our judgments, but in neither do we discover any justification for us, as a court in Maryland, to decide in favor of the exemption of the piano from liability. As a general principle, all movables found on the demised premises are subject to distress. To this there are, however, some exceptions, and the question in the present case is, does this piano, under the circumstances, fall within any of these exceptions? In the case of Simpson vs. Hartopp, Willes, 512, Lord Chief Justice Willes, in an opinion of clearness and precision, lays down the whole law as applicable to what is, and what is not, liable to distress. After stating the general principle, he proceeds as follows to state the exceptions to it:
“1st. Things annexed to the freehold.
“2nd. Things delivered to a person exercising a public trade, to be carried, wrought, worked up, or managed in the way of his trade or employ.
“3rd. Cocks or sheaves of corn.
“4th. Beasts of the plough, and instruments of husbandry.
“5th. The instruments of a man's trade or profession.
“The first three sorts were absolutely free from distress, and could not be distrained, even though there were no other goods besides. The last two are only exempt sub modo; that is, upon a supposition that there is sufficient distress besides."
If the present case can be brought, under any of the heads or classes of exempted articles specified by Eord Chief Justice Willes, it must, be under the 5th, which is, “the instruments of a man’s trade or profession.” Now we have seen this freedom from distress is not absolute, but dependent on circumstances which are not in this case, the article was not in use as an instrument of trade or profession, nor was there a sificiency of other goods on the premises to meet in full the distress. In the case before us, there is an absence of both of those ingredients. Tt is not shown, by the agreed statement of facts, that this piano, at the time of the distress, was in use as an instrument of profession, nor are we permitted, by the terms of the submission, to infer such use from the profession of music
If, as we have said in other cases of supposed hardship, the rules of the common law are found unsuited to a case like the present, the constitution has confided to another branch of the government the power of alteration — it is with the legislature.
There was but one prayer submitted in the case, and that by the defendant, which was refused by the court. It is as follows: “If they (the jury) shall believe all the matters agreed upon in the agreement now in evidence before them to be true, then they may also find that the piano-forte now in question was liable to distress for the rent of said Treiber, and that said piano-forte was legally sold to Treiber, under said
It is objected to this prayer, on behalf of the plaintiffs, that it is defective in submitting a question of law to the jury, and this defect is supposed to consist in the use of the words, “they (the jury) may also find that the piano-forte, now in question, was liable to distress from rent.,” instead of the words, “they shall find,” sfcc. It is clear from what we have said, that in our opinion the plaintiffs, on the facts in the case, ought not to maintain their action, and surely it is a strange objection to urge against the defendant that he asked less from the court, than he was entitled to. We perceive no force in the objection. We reverse the judgment.
Judgment reversed and procedendo awarded.