PLEADINGS, PRACTICE AND PROCESS AT LAW 2819

notice as to it shall seem proper, may allow and order any amendment of
the pleadings and the making of any new and additional parties that such
marriage may render proper.
Application of this section pointed out. Rowland v. Prather, 53 Md. 241.

Amendment.

An. Code, 1924, sec. 39. 1912, sec. 35. 1904, sec. 35. 1888, sec. 34. 1785, ch. 80, sec. 4.
1809, ch. 153. 1852, ch. 177, sec. 1. 1888, ch. 235.

39. In all suits and actions at law, any of the proceedings, including
the writ of summons, may be amended so that such case may be tried on
its real merits and the purposes of justice subserved; writs may be amended
from one form of action to another when the ends of justice require it;
and any amendment may be made at any time before the jury retire to
make up their verdict in cases of jury trial; and in cases of demurrer and
other trials before the court, at any time before judgment is entered.
Amendments may in like manner be made before justices of the peace.

Particular Cases.

This section justifies an amendment of narr, and writ, so as to change them from
covenant to assumpsit. Baltimore, etc., Co. v. McGowan, 16 Md. 53. And see Kirwan
v. Raborg, 1 H. & J. 296.

Where a suit for negligence causing death is brought by titling in name of state
for use of, etc., declaration may be amended by insertion of state as legal plaintiff.
Sec. 45 does not preclude such amendment. B. & O. R. R. Co. v. State, 62 Md. 481.

Allowing a plaintiff to withdraw a separate narr, against one of the defendants is
justified by this section. Mitchell v. Smith, 4 Md. 406.

An amendment may be made under this section and secs. 43 and 44, by striking
out name of one of two defendants. Pendergast v. Reed, 29 Md. 403.

This section applied where a declaration for slander was ruled bad on demurrer.
Terry v. Bright, 4 Md. 435.

This section applied where there was a motion in arrest of judgment on account
of error in declaration. Newcomer v. Kean, 57 Md. 125 (dissenting opinion).

This section referred to in upholding action of court in sending for declaration
after the jury had retired, and having certain blanks therein filled up. Spencer v.
Trafford, 42 Md. 21.

Where an omission in a narr, was evidently accidental, the case was remanded for
amendment. State, use Dodson v. Baltimore, etc., Co., 77 Md. 493.

Generally.

Amendments to pleadings cannot be allowed so as to nullify provisions of art. 75,
sec. 28 (108). Farmers' & Mchts.' Bank v. Harper, 151 Md. 362, 364. And see Commercial
Credit Corp. v. Schuck, 151 Md. 371.

This and the ten following sections are but a condensation of several statutes upon
the subject of amendment; whenever they speak affirmatively, they negative the
enlargement of right of amendment to another class of parties, unless a general ex-
pression embracing latter is used. This section is qualified by the following sections.
Thanhauser v. Savins, 44 Md. 414.

The plaintiff may amend his declaration at any time before jury retires, or at any
time before judgment is entered if trial is had before court. Gisriel v. Burrows, 72
Md. 373; Scarlett v. Academy of Music, 43 Md. 208; Ritter v. Offutt, 40 Md. 211;
Pendergast v. Reed, 20 Md. 403; Garrett v. Dickerson, 19 Md. 448.

The allowance of an amendment, provided it is within power of court, is not subject
of appeal. How amendments may be made. Scarlett v. Academy of Music, 43 Md.
208. And see Staley v. Thomas, 68 Md. 442; Lohrfink v. Still, 10 Md. 530; Thillman
v. Neal. 88 Md. 529; Mitchell v. Smith, 4 Md. 406. Cf. Union Bank v. Ridgely,
1 H. & G. 324; Schulze v. Fox, 53 Md. 43.

An appeal lies from action of the court in refusing to allow an amendment of
declaration after testimony on both sides has been taken; an amendment held proper
and that it should have been allowed, although the refusal did not in itself justify
a reversal. Sterling v. Marine Bk. of Crisfield, 120 Md. 398.

Some degree of discretion is reposed in the courts in allowing amendments, although
language of this section is extremely broad. While this section by its terms relates
only to pleadings in courts of law, since no formal pleadings are required in orphans'
courts, a more stringent rule should not be applied to proceedings in latter courts
than to cases in courts of law. Long v. Long, 118 Md. 200.

This section referred to in deciding that where a party has a choice between two
alternative forms of action and adopts one of them but dismisses the action before

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