PLEADINGS, PRACTICE AND PROCESS AT LAW. 2379

by " B. as next friend," lower court may permit an amendment of petition so that
it will read " A., Infant, by B., Next Friend." By such amendment this section is
not violated. Baltimore v. Yost, 121 Md. 375.

Where a suit is brought against a railroad company on a cause of action originat-
ing during federal control, the railroad not being a proper party defendant, the
declaration may not be amended by making the director general of railroads a
party defendant. Atkinson v. P., B. & W. R. R. Co., 137 Md. 636.

No amendment can be made by which a party becomes sole plaintiff in a new
and distinct capacity from that in which he appeared as plaintiff prior to amendment.
Wright v. Gilbert, 51 Md. 153; Fidelity Co. v. Singer, 94 Md. 131.

This section construed in connection with sec. 39—see notes thereto. B. & O. R. R.
Co. v. State, 62 Md. 481.

See notes to secs. 39 and 41.

An. Code, sec. 42. 1904, sec. 42. 1888, sec. 41. 1785, ch. 80, sec. 1.

46. Where an heir at law or devisee has been omitted as a defendant,
the plaintiff may amend by making such heir or devisee a party and such
proceedings shall be had as will produce a fair trial.
See notes to secs. 39 and 41.

An. Code, sec. 43. 1904, sec. 43. 1888, sec. 42. 1852, ch. 177, sec. 11.

47. Nothing in the preceding sections of this article relating to amend-
ments shall affect any plea of limitations, in abatement, to the jurisdiction
or other dilatory plea.

Leave to amend pleadings by filing a plea in abatement after pleas in bar is
properly refused unless matter in abatement has arisen since filing of the plea in
bar, and then only if prompt action is taken. Eschbach v. Bayley, 28 Md. 495.

As to pleas in abatement, see sec. 28, sub-sec. 81, et seq.

See notes to secs. 39 and 41, and sec. 28, sub-sec. 50.

An. Code, sec. 44. 1904, sec. 44. 1888, sec. 43. 1785, ch. 80, sec. 4. 1809, ch. 153, sec. 1.

48. Where an amendment is allowed after the jury is sworn and the
court shall consider a continuance necessary to a fair trial for the cause a
juror shall be withdrawn, but if the court considers that a continuance is
not necessary to a fair administration of justice the jury may proceed and
try the case after the amendment.

The matter of granting a continuance is within discretion of trial court, and is
not subject of appeal. Clagett v. Easterday, 42 Md. 626; Adams Express Co. v.
Trego, 35 Md. -59.
See notes to secs. 39, 40 and 41.

An. Code, sec. 45. 1904, sec. 45. 1888, sec. 44. 1785, ch. 80, sec. 4. 1809, ch. 153, sec. 1.

49. In all cases of amendment the allowance of costs shall be in the
discretion of the court.

As to costs, see also sec. 44.
See notes to secs. 39 and 41.

Arbitration and Award.

An. Code, sec. 46. 1904, sec. 46. 1888, sec. 45. 1778, ch. 21, sec. 8.

50. Any cause instituted in any of the courts of this State may, by
rule of court and by consent and agreement of the parties thereto, be sub-
mitted and referred to the award and arbitrament of any person or per-
sons, and the court may give judgment on the award of the person or per-
sons to whom such submission and reference shall be made as of the term