Spencer v. Patten

Citations

• 84 Md. 414
• 35 A. 1097
• 1896 Md. LEXIS 119

Syllabus

<p>Plea in Abatement—When to be Filed—Pendency of Another Suit— Motion of Ne Recipiatur to Plea—Review of Ruling on Appeal— Trespass on Land Covered by Navigable Water— Fishery—Plea Amounting to General Issue—Demurrer—Harmless Error—Plea Amounting to the General Issue.</p> <p>A plea in abatement cannot be filed after a plea in bar, unless the facts relied on to abate the action arose afterwards, and in that case the plea in abatement should allege that the facts arose afterwards.</p> <p>After a plea in bar was filed, the plaintiffs amended the' declaration and the defendants were required to plead to the same. Held, that the defendants could not plead to the amended declaration matters which existed at the time of their pleading to the original declaration.</p> <p>In this case the original .suit for trespass was against six defendants, and they pleaded in bar. Afterwards the declaration was amended by striking out two of the defendants and the remaining four pleaded in abatement, the pending of another action by the same plaintiffs in another Court against two of the defendants and another party for the same cause of action. A motion of ne recipiatur to this plea was granted. Held, that the pendency of the suit for a joint trespass against these three was as much matter of abatement in the original suit to which all six were parties as in the amended declaration where two of the three and two others were defendants, and that the dilatory plea could not be filed under these circumstances.</p> <p>The rule requiring dilatory pleas to be filed promptly is important in the administration of justice, not only to save costs and prevent surprise to litigants, but also to save the time of the Court.</p> <p>The question as to whether a plea in abatement was filed in time or not should be raised by a bill of exception and not by a motion of ne recipiatur.</p> <p>If upon such motion a plea is not received and is not therefore technically a part of the record, it may be question