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4 ANN. CAP. 16, PLEA IN ABATEMENT. <) 905 scire facias that there are others not warned, see Foxwist v. Tremaine, 2 Wins. Saund. 210 n. e.; Prather v. Manro, 11 G. & J. 261; Doub v. Barnes, 4 Gill, 1; to a plea in abatement that the writ was never returned, though in giving oyer the plaintiff had not set it out, Sherman v. Alvarez, 1 Str. 639; and it has been expressly decided by the Court of Appeals that infancy of the plaintiff is matter in abatement and such a plea must be verified by affidavit under this Statute, Graham v. Fahnestock, 5 Gill, 215; see Code Art. 75, sec. 22, sub-sec. 82," for form of the plea. A plea of cover- ture, that the defendant has married since she entered into the contract or committed the tort, is a dilatory plea within the Statute, and the plain- tiff is entitled to judgment for want of a plea, though part of the cause of action occurred after the coverture, LoveII v. Walker, 9 M, & W. 299. So coverture of the plaintiff is matter in abatement, Bender v. Wakeman, 12 M. & W. 97; Morgan v. Cubitt, 3 Exch. 612.20 But the section has been held not to extend to matters apparent on the record, see Grey v. Sidneff, 3 B. & P. 397; 1 Chit. PI. 452, 453. If there be no affidavit, or it be defective, or if it be not in time, see Whittington v. Farmers' Bank, 5 H. & J. 489, the plaintiff may treat the plea as* a nullity and sign judgment or 668 move the Court to set it aside, and the practice here is to move the Court to strike it out, Deheaulme v. Boisneuf, 4 H. & McH. 413; Graham v. Fahnestock supra.21 And a case is reported where the plea and affidavit being wrong entitled the plea was set aside, Clixby v. Dines, Barnes, 348. It is not necessary that the affidavit should be made by the party him- self; the affidavit of the attorney to the truth of it is sufficient, Lumley v. Foster, ibid. 344; see Horsfall v. Matthewman, 3 M. & S. 154. The affidavit ought to be positive to the truth of every matter of fact contained in the plea and leave nothing to be collected by inference; the words probable cause in the Act only relate to a matter of record, 2 Harr. Ent. 271, or some other collateral matter as to the truth of which there cannot be a positive affidavit, and a mistake in the name of the parties is fatal, though the affidavit give a right reference, Richards v. Settree, 3 Price, 197; Pearce v. Davis, Sayer, 293. See the form of the affidavit, 2 Harr. Ent. 276, Code Art. 75, sec. 22, sub-sec. 84.22 As the affidavit is only required for the benefit of the plaintiff it may be waived by him, Grahame v. Ingleby, 1 Exch. 651. By the Code, Art. 75, sec- II,23 1785, ch. 80, sec. 3, the plea of ls Code 1911, Art. 75, sec. 24, sub-sec. 82. 20 See Poe's Pleading, secs. 397, 659. Of course, since the Act of 1898, ch. 457, (Code 1911, Art. 45, see. 5), a plea of coverture is no longer possible. 21 A motion of ne recipiatur seems improper, at least where a review of the action of the lower court is desired. This should be presented on appeal by a bill of exception. Spencer v. Patten, 84 Md. 423. 22 Code 1911, Art. 75, sec. 24, sub-sec. 84; Carroll v. Bowen, 113 Md. 154. Replying- to a plea in abatement which is without affidavit does not waive the defect in a criminal case. Quaere, as to a civil action? Johns v. State, 55 Md. 356, 23 Code 1911, Art. 75, sec. 11; State v. Duvall, 83 Md. 124. |
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Alexander's British statutes in force in Maryland. 2d ed., 1912
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