PLEADINGS, PRACTICE AND PROCESS AT LAW. 2393

cannot be measured or located on the plats by reason of the same having
become inaccessible by falls of earth or otherwise or by the closing or
partial closing of the galleries, headings, rooms or other excavations con-
stituting or leading to such trespasses, then and in all such cases it shall
be lawful and proper to prove such trespasses by any evidence otherwise
competent and admissible, notwithstanding such trespasses cannot be and
have not been located on the plats and notwithstanding that the defendant
has taken defense on warrant.

This section referred to in construing sec. 85—see notes thereto. Kelso v. Stigar,
75 Md. 395.

See notes to sec. 76.

An. Code, sec. 84. 1904, sec. 84. 1888, sec. 81. 1852, ch. 177, sec. 7. 1829, ch. 186.

89. The plats and certificates of survey in every case may be amended
at bar; where the locations do not correspond with the variation the same
may be amended at bar to correspond therewith; objects to which the proof
applies may be placed on the plats and witnesses may be examined who
were not sworn on the survey; provided, the court shall be satisfied the
ends of justice will be attained by such amendment of plats and admission
of witnesses.

The amendments of plats must be made according to law and practice of eject-
ment, so that something may be supplied which was unknown or overlooked at time
of survey. No location may be made by amendment which could not have been
permitted at time of survey. Tome Institute v. Davis, 87 Md. 608.

This section dispenses with necessity of having a witness sworn on survey in
order to make him competent at trial, but does not render a witness who was not
on survey competent at trial, with regard to location of any object upon plat. Law
prior to this section. Morrison v. Hammond, 27 Md. 619.
See notes to sec. 76.

An. Code, sec. 85. 1904, sec. 85. 1888, sec. 82. 1852, ch. 177, sec. 8. 1882, ch. 372.

90. In no action shall plats be considered as pleadings or evidence
per se.

This section referred to in deciding that in an action for flooding land, a witness
might testify to existence of other ditches besides those located on a plat used for
illustration under sec. 85. New York, etc., Co. v. Jones, 94 Md. 33.

For a case dealing with this section as it stood in the Code of 1860, see Clary v.
Kimmel, 18 Md. 246.
See notes to secs. 76 and 85.

Equitable Defenses.

An. Code, sec. 86. 1904, sec. 86. 1888, sec. 83. 1888, ch. 547.

91. It shall be lawful for the defendant in any action at law (including
plaintiff in replevin where avowry or cognizance is made) in which, if
judgment were obtained, he would be entitled to relief against such judg-
ment on equitable grounds, to plead the facts which entitle him to such
relief by way of defense, and the court in which said action is pending
is hereby empowered to receive such defense by way of plea; provided,
that such plea shall begin with the words: "For defense on equitable
grounds," or words to that effect.

When plea under this section is good.

A plea under this section is not good unless it sets up such facts as would entitle
defendant to relief in equity against judgment if recovered. That conveyance to