ART. 75] AMENDMENT. 1657

1904, art. 75. sec. 37. 1888, art. 75, sec. 30. 1860, art. 75, sec. 25. 1828, ch. 199.
1845, ch. 54. 1846, ch. 328. 1880, ch. 135.

37. No writ or action shall abate because of the misnomer of any
plaintiff or defendant named therein, but the court, on suggestion, sup-
ported by the affidavit of the plaintiff or defendant or other proof to the
satisfaction of the court that by mistake the plaintiff has sued in a wrong
name or that the party summoned in virtue of said writ or action is,
in fact, the party intended to be sued by such writ, or in such action,
may at any time before judgment, direct the writ or any of the pro-
ceedings to be amended by inserting therein the true name of any plain-
tiff or defendant, at the discretion of the court; this section to apply to
foreign attachments, cases against corporations, and all other suits and
actions.

This section applied so as to allow the correction of a defendant corpora-
tion's name, there being two corporations of very similar names. Western
Union Tel. Co. v. State, use Nelson, 82 Md. 306.

This section applied to a misnomer of an individual defendant. Union
Bank v. Tillard, 26 Md. 452.

Prior to the act of 1880, ch. 135, a misnomer of the plaintiff could not be
cured by amendment. Thanhauser v. Savins, 44 Md. 414.

Ibid. sec. 38. 1888, art. 75, sec. 37. 1860, art. 75, sec. 26. 1856, ch. 112,

sec. 27.

38. If there be a non-joinder or misjoinder of plaintiffs, the court
may allow an amendment by which a plaintiff may be added or stricken
out, as the case may require.

The allowance of an amendment is confided to the discretion of the trial
court, provided it be within the power of the court to make it. Thillman v.
Neal, 88 Md. 529.

This and the two following sections do not affect the rule that where a
debt is due to a partnership or to several Individuals Jointly, they must all
join as plaintiffs, and if they fail to do so, the objection may be raised to
the proof (on the ground of a variance), under the general issue. Smith v.
Crichton, 33 Md. 107. And see Kent v. Holliday, 17 Md. 387.

Where a suit is brought by H. S., "next friend" of J. S., the declaration
may be amended so as to make H. S. and J. S. Joint plaintiffs without
amending the writ. Condon v. Sprlgg, 78 Md. 333.

This section referred to in construing section 41—see notes thereto. Wright
v. Gilbert, 51 Md. 153.

See notes to sections 35 and 37.

Ibid. sec. 39. 1888, art. 75, sec. 38. 1860, art. 75, sec. 27.
1856, ch. 112, sec. 30.

39. If there be a misjoinder or non-joinder of defendants, the court
may allow a defendant to be stricken out or added, as the case may
require; but if a new defendant be added, he shall be summoned and
have the same time to plead as if a new action were brought against
him.

Under this and the following section, the plaintiff is entitled in an action of
replevin, to strike out a misjoined defendant. Herzberg v. Sachse, 60 Md.
434.

An amendment of the affidavit before a notary, and the warrant of the
Justice to the clerk, in attachment cases, are not within the purview of this
section. (See article 9, section 28.) Halley v. Jackson, 48 Md. 260.

This section referred to in overruling a motion in arrest of Judgment.
Vernon v. Tucker, 30 Md. 463.

See notes to sections 35, 37 and 38.