Thanhauser v. Savins

Bowie, J., delivered the opinion of the Court. The question presented by the bill of exceptions in this case, is whether the appellee, who instituted suit against the appellant, in the Court of Common Pleas, and declared in the name and by the description of “B. Savins,” could amend the writ and proceedings in the cause, by inserting the real name of the plaintiff, viz., “Benjamin,” for “B.” The defendant pleaded in abatement, “that the plaintiff’s name was not CB. Savins,’ but that his real name was unknown to him.” The plaintiff demurred to the plea, but afterwards withdrew his demurrer, and asked leave to amend by inserting as above, to which the defendant objected, but the Court overruled the objection and allowed the amendment as prayed, to which ruling and action of the Court, the defendant excepted. ⁴¹⁴ This involves the construction of Art. 75 of the Code, title “Pleadings, Practice and Process,” secs. 23, 25, 26, 28, 29. Although, from the general spirit of the Article, manifested in the introductory sections, the most liberal system of pleading seems to have been designed by the Legislature ; and sec. 23, standing alone, appears broad enough to warrant any amendment, yet contemporaneous construction has held otherwise.

Mr. Evans, in his work on Practice, (2nd Ed.,) says: “It may be briefly said that every pleading may, in Maryland, be amended in every conceivable way. To this sweeping assertion it is only necessary to make three exceptions. The first is, that when the plaintiff’s attorney has mistaken his client’s name, he is not allowed to amend his error,” etc. Evans’ Prac., 150. “ It grows out of the omission in the Oocle of all provision upon the subject.” ******** “The present law in relation to the amendment of pleadings will be found in the Code, Art. 75, secs. 23 to 33, both inclusive. The general effect has been stated in the last paragraph.” However- much some may regret this apparent anomaly, it is explained by the learned writer in the brief but terse expression, “It grows out of the omission in the Code,” etc. At common law such amendments lucre not admissible.

All amendments of pleadings are authorized by statutes of Jeofails, and where these statutes are silent, the right of amendment does not exist. The Code is but a condensation of the several statutes of our State upon this subject; wherever it speaks affirmatively, it negatives the enlargement of the right of amendment to another class of parties, unless a general expression, embracing the latter, is used. “Expressio unius est exclusio alterius.” There is much force in the