Eschbach v. Bayley

delivered the opinion of this Court.

This is an action of assumpsit, brought on the 10th day of December, 1862, in the Superior Court of Baltimore city, by the appellee against the appellants, to recover the amount of two promissory notes. At the following May Term of the said Court, the defendants appeared by counsel and filed two pleas.; the case was then regularly continued to the May Term, 1864, of said Court, when upon the affidavit of one *495of the defendants, it was removed to the Circuit Court for Baltimore county; it was continued in that Court until its May Term, 1866, at which term it came up for trial. Upon the day of trial issue was joined on the two pleas of the defendants, which pleas were: “never indebted as alleged” and “did not promise as alleged.” The defendants then asked leave of the Court to amend their pleadings by adding a plea of payment, which leave was granted by the Court, the amendment was made and issue was joined by the plaintiff on the amended pleas. After the issues had been thus joined and the jury were about to be sworn, but before they were sworn, the defendants asked leave further to amend the pleadings on their part, by filing a plea in abatement, a plea of set-off and an account in bar. This leave the Court refused, and from that refusal this appeal was taken. Much has been said in argument to show that the 17th rule of the Circuit Court for Baltimore county, is in conflict with .Article 75, sections 12 and 13 of the Code of Public General Laws, relating to amendments, and it is supposed that such conflict renders the rule void, and for that reason the ruling of the Court below must be reversed. By the 31st sec. of Art. 75, it is provided that nothing in the preceding sections of this Article relating to amendments, shall affect any plea of limitations, in abatement, to the jurisdiction or other dilatory plea. Hence it is clear that the refusal of the Court to receive the plea in abatement does not violate the 75th Art. of the Code, and that the law stands as it did before the passage of that Article. From the view we have taken of this case, whether the rule in question is or is not in conflict, in other respects, with the provisions of the Code, is a question we do not deem it necessary to decide. The leave asked was to amend the pleadings by tiling a plea in abatement, a plea of set-off and an account in bar, this was one entire proposition, the Court has signed and sealed it as one entire proposition, it is made the one and entire cause of exception, and the Court could consider it only as an entire proposition, and if one part of the leave asked was erroneous and not proper to be *496granted, it was the right, as it was the duty of the Court to reject the whole. It was not for the Court to segregate the proposition — to reject a part and grant a part — it was not for the Court to say we refuse the leave to interpose the plea in abatement, and grant leave to file a plea of set-off and an account in bar.

This would have been doing what the Court was clearly not bound to do, even if it had the power and right to do so. Was there error in the Court in rejecting the application of the defendants thus made ? We think not. It appears from the record that at the time the writ issued from the Superior Court of Baltimore city, the declaration of the plaintiff was filed,'this was on the 10th day of December, 1862, that the case was continued under a general imparlance until the second Monday in May, 1863, at which time, the defendants appeared by counsel and filed two pleas in bar to the action. This was a waiver on the part of the defendants of all abate-able matter and they could not afterwards be permitted to interpose such a plea. We think it well settled that a plea in abatement cannot be received after a general imparlance, and equally as well settled that such a plea cannot be pleaded after a plea in bar, unless the matter in abatement has arisen since the filing of the plea in bar, and then only when it is done at the first opportunity that offers after such matter has arisen. See the case of Chapman’s Adm’r vs. Davis, Ex’rx, and the cases there cited, 4 Gill, 166.

We think there was no error in the Circuit Court, in rejecting the application of the defendants, and the judgment must therefore be affirmed.

Judgment affirmed.

Bartol, C. J., and Robinson, J., dissented.