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13 E. 1, STAT. 1, CAP. 2, REPLEVIN. 133 lawfulness of the distress may turn upon it. See, however, Bullythorpe v. Turner, Willes, 475, that it is cured by pleading over. It is enough for the plaintiff to name the place where he finds the defendant in possession of the goods, per Chambre, J. in Abercrombie v. Parkhurst, 2 B- & P. 481. And it has long been held, that if the goods be taken in one county and carried into another, the plaintiff may replevy in either county, but not in both, for it is a caption in every county into which the goods are taken by the defendant, F. N. B. 69,* 1; Walton v. Kersop, 2 Wils. 354. But 100 it has been held that if the declaration state the taking to have been in Gay Street from the plaintiff's dwelling house, it is sufficient to prove the taking in Gay Street, and the party is not bound to prove the taking from the dwelling house, Faget v. Brayton, 2 H. & J. 350, in which case also judg- ment was reversed because no damages were laid in the declaration. A general description10 of the goods in the declaration, as quandam parcell' lintei et quondam parcel!' papyri is good on motion in arrest of judgment, Kempston v. Nelson, Bac. Abr. Replevin, H.; Bern v. Mattaire, Cas. temp. Hardw. 119. But a declaration stating a taking of "divers goods and chat- tels" is bad, and not cured by the Stat. 4 Ann. c. 16, after judgment by default. Pope v. Tillman, 7 Taunt. 642. To assimilate the proceedings still more to the action of trespass or trover, the plaintiff is not always per- mitted to retain possession of the goods replevied fill the right is deter- mined. It has been observed by the Court of Appeals, that the proceedings in replevin," so far as relates to the possession of the property involved, are regulated with exact minuteness by Acts of Assembly. "A description of the goods which can be made definite is good. It need not be so definite that the sheriff can find them without aid. If they can be pointed out, it is sufficient. The sheriff's return of "replevied and delivered to plaintiff" raises a presumption that he was able to identify the prop- erty and the burden is on the defendant to show that it is not the same which the plaintiff intended should be replevied. Where a defective descrip- tion is in the writ, a motion to quash is proper; if in the declaration, the objection should be made by demurrer. Anderson v. Stewart, 108 Md. 340. As to what an officer may do in executing the writ, see Gusdorff v. Dun- can, 94 Md. 160. Plaintiff may prove at the trial that all the property mentioned in the schedule is his without being required to prove title to each article sepa- rately. Smith v. Wood, 31 Md. 298. " Verdict and judgment.—If the verdict is for the plaintiff, judgment is entered for the property replevied and damages for its detention and costs; if for the defendant, it is for a return of the property and costs. Poe's Practice, sec. 445; Burnett v. Bealmear. 79 Md. 36; note to 7 Hen. S c. 4. See, however, the changes made in the practice by the Act of 1888 ch. 269 infra. But where the property has been eloigned, or otherwise withheld from the execution of the writ, and the declaration is in the detinet, the plaintiff, if he recovers, is awarded as well the value of the goods as damages for their detention. Benesch v. Weil, 69 Md. 276. No damages are recovered by the plaintiff except such as result from disturbance of possession. Herzberg v. Sachse, 60 Md. 426. If the right to possession covers all time, as in the case of absolute ownership, or is |
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Alexander's British statutes in force in Maryland. 2d ed., 1912
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