Joynes v. Wartman

Le Grand, C. J., delivered the opinion of this court. This is an action of replevin. In the court below the appellee avowed the taking of the property replevied by the appellants, as a distress for three months’ rent, due on the 9th of February 1851, under an alleged demise to them and ¹⁹⁷ Pomeroy & Co., of “The Sulphur Springs and furniture,” in Baltimore county, for $600, in quarterly payments, the rent to commence the 9th of May 1850, &c.; and averred, that within thirty days after the said rent had become due, the plaintiffs had fraudulently and clandestinely removed the same with intent, &c., and the defendant had pursued and taken it as a distress. It appears from the testimony that an account was made out and sworn to by the appellee, but the account does not state against whom it is — it is blank, “Dr., to Michael K. Wart-man.” The warrant to distrain was given to William Thomas, constable, who returned it nulla bona.

Subsequently the appellee went before a justice of the peace, in the city of Baltimore, and made oatli that the property had been removed from the demised premises, and under the warrant of the justice a certain D. H. White was appointed to assist the bailiff of the appellee to take and seize the property alleged to have been clandestinely removed. It was under this process the property replevied was taken. At the trial the appellants offered fourteen prayers, some of which were granted and some of them rejected. The appellee asked and obtained the instruction of the court to the effect, that if the jury found the facts set forth in it the appellants were not entitled to recover.

In the view we have of the case it is not necessary we should express an opinion in regard to each of these propositions. The record discloses a state of facts which, under no circumstances, would enable the avowant to defend his distress. The act of 1834, ch. 192, sec. 3, provides, “that to all and every warrant or warrants authorizing any