delivered the opinion of the Court.

On the 11th day of September, 1878, the appellant brought this action of assumpsit against the appellee in the Circuit Court for Baltimore County. The declaration -contained the ordinary money counts, together with counts ■on three several promissory notes.

*616On the 27th of September, the defendant pleaded in abatement, that, before the commencement of this action,. “ to wit, on the sixth of July, 1878, in the Superior Court of Baltimore City, the plaintiff had impleaded the defendant on the same promises and undertakings, and that said suit was pending, and undetermined in the Superior Court of Baltimore City, at the commencement of this suit.”

The appellant (plaintiff below) replied that “ the said former suit in the plea mentioned was not pending at the time of filing of said plea in this suit, in manner and form as the defendant (appellee here) in. his plea had alleged,, but that the same has been discontinued by an order filed in the said Superior Court of Baltimore City, on the 17th of September, 1878.” To this replication a demurrer was. entered, and the same having been sustained, and judgment having been entered for the defendant, appeal was taken.

Before proceeding to consider the question raised by the demurrer it is proper to note, that the record discloses, that, on the 15th of July, 1878, the appellee filed, in the Superior Court of Baltimore, a motion, verified by affidavit, to dismiss the suit brought against him in the Superior Court on the 6th of July, 1878, because the defendant was not a resident of Baltimore City, hut resided in Baltimore County.

We think there was error in the ruling of the Circuit Court, in sustaining the demurrer to the plaintiffs replication ; for if the appellee’s plea had been perfect, the replication would have been a good reply to it. The-demurrer mounts up to the first error in pleading, and the plea being bad, in omitting to allege the pendency of the prior suit at the time of plea pleaded, the demurrer should have been overruled. If in order to make-a plea of prior suit brought for the same cause of action available as a good plea in abatement, it was necessary that the prior suit he pending and undetermined at the *617time of plea pleaded, it was also necessary that it should he so averred in the plea. There is some conflict of authority on this subject, hut the great weight of authority establishes the doctrine that the first suit must he pending at the time of plea filed, to effect an abatement of the-second suit, and that if the first suit he dismissed before-plea pleaded, it will prevent the abatement of the second suit. Mr. Evans in his valuable work on Practice in this State, page 250, expresses the belief that the case of Parker vs. Collard, (2 N. H., 36,) would he followed as the law of Maryland. We do not think that decision is in accord with the hitherto prevailing practice in Maryland. It is at variance with the rule laid down by Mr. Chitty in his work on Pleading, and which is followed in most of the other States. In the absence of express decision on this question, in this State, the best evidence of what the law is, can be found in the precedents. Resorting to them,, we find in Harris’ Entries the practice in Maryland to he to aver in the plea the continuing pendency of the-suit. The precedents of Mr. Chitty furnish the same evidenbe of what the law is in England, as well as in this-country in most of the States. On page 410 of Chitty on Pleading, (16th Am. Edition,) this learned author uses this language “ the plaintiff cannot after plea in abatement of the pendency of a prior suit, avoid the effect of' the plea by discontinuing the action which was pending at the time of the plea.” This statement is a plain recognition of the right to discontinue before plea pleaded and thus avoid the abatement. Some respectable authorities question even this restriction of Mr. Chitty, and allow dismissal after plea pleaded to be rejoined with effect; hut the exigencies of this case do not require us to pass on that question, for the replication we are considering alleges dismissal before plea pleaded. The rule we recognize is maintained in Marston vs. Lawrence & Dayton, 1 Johnson’s Cases, 397; Toland vs. Tichenor, 3 Rawle, 324, and *618Wales vs. Jones, 1 Michigan, 254. Id the last cited case the Court most forcibly assigns as a reason for the rule allowing abatement, that the second suit is “vexatious,” and says, “ where the record shows apparent good faith and that the first suit was discontinued before the defendant is called on to plead, so that he is not unnecessarily' harassed by the defence of two suits, at once, for the same cause, the second suit cannot he' deemed vexatious, and cannot therefore be abated by the pendency of a prior suit when it toas commenced. On the contrary, to hold the second suit abatable for that cause, would be to make the law favor, rather than abhor, a multiplicity of suits, inasmuch as it would render another suit necessary.” In this case the second suit was ' necessary by reason of the non-residence of the defendant suggested by motion of the defendant and sworn to by him. In numerous cases it has been decided, that, where the second suit is necessary to secure the demand by reason of a defect in the first suit, the first suit may be discontinued after plea in abatement filed, so as to avoid the effect of that plea. Durand vs. Carrington, 1 Root, 168; Rogers vs. Harkins, 15 Georgia, 270; Langham vs. Thompson, 5 Texas, 127. But as we have already said, it is not necessary to consider the effect of the defendant’s non-residence in the jurisdiction where the suit was first instituted, upon the plea in abatement of the second suit; for in fact the record shows discontinuance of the first suit before the plea in abatement was filed in the second suit, and we express no opinion on that point raised by the appellant.

For the reasons assigned we must reverse the judgment of the Circuit Court.

Judgment reversed, and new trial awarded.