OF MARYLAND PLEADING C by ALLAN HERBERT FISHER Assistant Attorney General SECOND EDITION by JAMES P. GORTER Chief Judge of the Supreme Bench and MORTON P. FISHER of the Baltimore Bar BALTIMORE PUBLISHERS 1922 PREFATORY NOTE. The objects of the authors in publishing this second edition of "Essentials of Maryland Pleading" are several. The first is to present in convenient form the many unusually important statutory changes in the law of pleading enacted since the first edition of this book, especially because, to the knowledge of the authors, no work on Maryland Pleading has been published since the first edition. Another object of the authors is to make the book more adaptable for use by the class in pleading at the University of Maryland, and to this end the arrangement of the book has been altered materially. It is the hope of the authors that the rearrangement will permit the pleading class to cover the subject more completely than heretofore. The authors also indulge the hope that attorneys may find some merit and value in the book, because it contains the statutory changes in the law of pleading, which, as set out above, are not treated elsewhere, and also because it permits quick reference to the essentials of a subject important to all practicing attorneys. With a view to making the book more valuable to attorneys, and with the knowledge that case authority is of greater value to attorneys than statement of general principle, the authors have made an effort to gather together all decisions on pleading rendered in Maryland since the first edition, and have cited these cases in connection with the principles for which they are authority. J. P. G. December 28, 1921. M. P. F. INTRODUCTION. The object of law is to define and enforce rights. From this viewpoint, law may be classified as (1) substantive, and (2) procedural, to the latter of which classes pleading obviously belongs. Like all human institutions, a legal system is an evolution; it, consequently, does not start out with definition and classification. We find, therefore, in the early stages of the English common law system, little if any abstract discussion of rights; the question is about remedies; "substantive law is gradually secreted in the interstices of procedure." Common law pleading deals with the procedure in the king's common law courts, which were at first, and for some time continued to be, competitors for business with the older feudal, popular and ecclesiastical courts. The king furnished a better article than the suitor could obtain elsewhere; but it was not a gift. The judges of the king's courts could not take jurisdiction of a case unless specially authorized by an Original Writ issuing out of the king's Chancery, which the suitor bought with a price. From an early date this writ, in addition to performing the office of a summons, described the plaintiff's cause of action; it was only such cause of action, so described, that the judges had jurisdiction to hear and determine; and from the case as described in the writ there could not be, in the subsequent proceedings, any variableness or shadow of turning. It was obviously beyond the power of the judges, whose authority was a delegated one, to permit any amendment of the writ from which their authority was derived; and if the suitor had sued out a writ which proved unfit for the facts of his case, it was manifestly in the interest of the revenue that a new one should be obtained and the proceedings begun over. Whether for this or for some other reason, the fact is that the right to amend, which (except in the case of dilatory pleas and pleas of limitations) finally became a matter of course, became such through legislation and not through judicial encouragement. It is also true that this opposition to amendment accounts for much of the repetition and technicality |