Rogers v. Roberts

• Decision Date: 12 July 1882
• Citation: 58 Md. 519
• Parties: CHARLES ROGERS v. MARGARET ROBERTS, by her next friend and husband, THOMAS ROBERTS.
• Court: Maryland Court of Appeals

58 Md. 519

CHARLES ROGERS v. MARGARET ROBERTS, by her next friend and husband, THOMAS ROBERTS.

Court of Appeals of Maryland

July 12, 1882

APPEAL from The Baltimore City Court.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., GRASON, MILLER ROBINSON and IRVING, J.

E J. D. Cross, for the appellant.

When there has been a recovery in replevin with damages, this suit is a bar to a suit for damages for illegal distraint. Phillips vs. Berryman, 3 Douglas, 286; Moore vs. Watts, 1 Ld. Raymond, 614.

The suit by the husband, independent of any circumstances of knowledge or acquiescence by the wife, was an assertion of his marital rights. The goods being on the premises rented by him, were presumptively in his possession. The recovery by him was a bar to any subsequent suit by the wife. Herman on Estoppel, 40; Schindel vs. Schindel, 12 Md., 108; Outram vs. Morewood, 3 East, 346, 366; Dicey's Parties to Action, 392, 393; Willson vs. Sands, 36 Md., 38; Keller vs. Keller, 45 Md., 269; Woods, et al. vs. McKenna, 14 Md., 269.

The appellee by assenting to the bringing of the suit in replevin by her husband, by consenting that Ruth, the security on the bond, should hold the goods to indemnify him from any possible loss therefrom, by her necessary knowledge prior to the replevin having been issued, must be presumed to have authorized it. She consented to this suit: "I knew of this replevin, and desired to get the goods back." She authorized the surety to hold the goods until the replevin suit was decided, and would have signed the receipt to the schedule had she been present when the sheriff delivered the property.

Her knowledge of, authority for, and assent to, this mode of obtaining possession of her property is clearly shown. By the judgment in replevin, damages were awarded for the taking and detention of the property. The replevin suit by the husband therefore, was a bar to the trespass suit by the wife. Schenk vs. Saulter, 73 Missouri, 46; Connolley vs. Braustler, 3 Bush, 702.

C Dodd McFarland, for the appellee.

MILLER J., delivered the opinion of the Court.

The appellant, Rogers, rented a house to one Roberts, and the latter being in arrear for rent for nearly thirteen months, the landlord distrained therefor and seized and carried away certain furniture in the house which was the property of Mrs. Roberts, the tenant's wife. There was a fatal defect in the distraint papers, which rendered the proceeding void, and Roberts, the husband, recovered the goods in an action of replevin with $50 damages and costs, which sum was paid by Rogers, the defendant in that suit. Afterwards, Mrs. Roberts by her next friend and husband, brought the action in the present case against Rogers, of trespass de bonis asportatis, founding it upon the taking and carrying away of the same goods which were recovered by the husband in the replevin suit.

At the trial the verdict and judgment were in favor of the plaintiff for $100 damages, and the only material question presented by the record and brought up for review by the defendant's appeal is, was there any error in the action of the Court in sustaining a demurrer to his second plea, and in rejecting his first and third prayers. This plea and these...