(dissenting):
This is an application by the defendant after issue joined upon the merits, to withdraw all pleas, and file a special demurrer, to a matter of form only.
There has never been any doubt in my mind as to the power of the Court to permit amendment of pleadings, either in form or in substance, at any time before judgment. This power is expressly given in Section 24, Article 4 of the present Constitution; and is the same as in that of the Constitution of 1831. Section 11 of Chapter 113 of the Revised Code, in no wise enlarges this power. The exercise of this power is in the discretion of the. Court.
The Court in the exercise of that discretion, after a large experience, decided that after issue joined upon the merits, it would not permit the plea of statute of limitation, a special demurrer, or any plea not going to the merits.
Burton vs. Waples, 3 Harr., 75; Waples vs. McGee, 2 Harr., 444; Robinson and Ponder vs. Holland, 2 Harr., 445.
In the last named case it was decided that a special, demurrer would not be allowed—the very question now before us.
This ruling has been acquiesced in and found to operate wisely for the last sixty years. It is founded upon the constitutional and true purpose of all pleading, viz., the attainment of an issue, either of law or fact, and the determination of causes according to their real merits; and not suffering time to be wasted or frittered away upon mere matters of form.
It is now proposed to overrule these decisions, in the absence of any new condition, and to depart from a safe, wise and absolutely uniform rule; and to embark upon the uncertain field of what amendments in mere matters of form the judicial mind for the time being may deem admissible. It will tend to encourage laxity in pleading; to delay trial of causes upon their merits and introduce confusion for certainty. In my judgment it is a very dangerous ruling.
It is admitted in this case that the special demurrer is to *42mere matter of form and does not go to the merits. If it was a matter of substance, a general demurrer would avail, which is always admissible.
On December 20th the demurrer was argued.
The narr consisted of three counts; the first of which was as' follows:
“ For that whereas, before and at the time of the committing of the grievances by the said defendants, as hereinafter next mentioned, the said plaintiff was the owner of a certain messuage, or open lot of land, with the appurtenances, situated and being at No. 312 East Second Street, and in the City of Wilmington, County aforesaid, and a certain action of complainant, called an injunction bill, had been commenced by defendants, against the said plaintiff and then was depending for restraining the plaintiff from building, or completing any building or work, or placing any structure, or material upon the lot of the plaintiff with the appurtenances, above mentioned and described, in the Court of Chancery of the State of Delaware, in and for New Castle County; wherein said defendants were the complainants and the said plaintiff in this suit was the defendant, and the plaintiff in this aforesaid Chancery Bill or suit had been served with a rule and restraining order, issued for the plaintiff in this suit and served upon him by John E. Taylor, Sheriff of New Castle County, to wit; the twenty-fourth day of August, A. D. 1899, to wit: at New Castle County aforesaid, and the said Sheriff made return August twenty-ninth, A. D. 1899 to said Court, as follows, to wit: “Served personally on John MacFarlane, August 24, 1899.” And the said plaintiff was the owner of said mentioned lot of land, with the appurtenances, and had the right to build thereon, and was building and constructing, a dwelling house thereon, for his own use and purposes, yet, the said defendants contriving and wrongfully and unjustly intending to injure the said plaintiff, and to subject him to costs of said action, damages, loss of material, time and money, heretofore, to wit; at New Castle County against the will of the *43said ¡ilaintiff, caused and procured the said rule and restraining order to be issued by the said Court of Chancery to wit; on the twenty-fourth day of August, A. D. 1899, to wit; at New Castle County, and such proceedings were thereupon had without the license, notice to, or knowledge, of the said plaintiff, in and concerning the said action, or Bill of Complaint, as by the records and proceedings thereof, in the said Court of Chancery more fully appear; and the said plaintiff further saith that afterwards to wit 1 on etc., the aforesaid rule and restraining order, directed to the said Sheriff of New Castle County, was duly executed in due form of law, by virtue of which rule and restraining order, the said plaintiff, was restrained, hindered and prevented, from putting and placing any building, structure, or material, upon the said lot and open space of the plaintiff for a long time, to wit; from the twenty-fourth day of August, A. D. 1899, to the fourth day of October, A. D. 1899, at the County aforesaid, when, &c., at said last mentioned day, October 4, A. D. 1899, the said rule and restraining order was dismissed and discharged and the injunction bill dismissed, by means of which said several premises he, the said plaintiff, whilst he was so restrained as aforesaid, was not only greatly exposed in his credit and circumstances, but was hindered and prevented from performing and discharging his necessary affairs and business, and his timber, brick, mortar, wood and sand, for said dwelling house were destroyed and taken away from the premises? pending the restraining order, and he, the said plaintiff, lost the use, and rental of the premises during the time &c., he was restrained, and unable to build on said land, and the plaintiff was kept out of the possession of the said land and premises, and was forced and obliged to, and did, necessarily pay, lay out and expend a large sum of money to wit the sum of two hundred dollars ($200), in procuring and paying counsel and attorney fees to defend said suit in Chancery and also three hundred dollars in and about purchasing other material at an increased cost, including timber and bricks, sand, mortar &c., and by means of the premises *44was greatly injured to the damage of the plaintiff of one thousand dollars ($1000), to wit; at New Castle County aforesaid.”
The charging part in the second count of the declaration was as follows: “ yet the said defendants, contriving and wrongfully and unjustly intending to injure the said plaintiff in this behalf heretofore to wit: in the Court of Chancery of the State of Delaware, in and for New Castle County,” * * * * * “on the twenty-fourth day of August A. D., 1899, at New Castle County aforesaid, wrongfully and injuriously and without right caused and procured a restraining order in said Chancery action to be issued from and out of said Court of Chancery and suffered and permitted said restraining order and the proceedings to be thereupon had without right and against the will and consent of the plaintiff.” ***** “That afterwards to wit: on the fourth day of October A. D., 1899, the said bill and the said restraining order were dismissed and discharged by the said Court of Chancery;” The third count was exactly similar to the above.
The cause of demurrer relied upon by counsel for defendant as to each of the three counts of the declaration was that the same did not aver “ that the said alleged action in the Court of Chancery of the State of Delaware was begun, or that the said rule or restraining order was issued maliciously and without yyrobable cause.”
H. H. Ward, for defendant, contended that an action for damages for the issuance of a restraining order or injunction was exactly similar to an action for damages for malicious prosecution and that therefore the narr should aver that said restraining order was procured maliciously and without probable cause, and cited in support of the above contentions, the following authorities:
10 Ency. Pl. and Prac., 1119 ; Russell vs. Farley, 105 U. S., 433; Meyers vs. Block, 120 U. S., 206 (211); Robinson vs. Kellum, 6 Cala., 399; Asevado vs. Orr, 100 Gala., 293; Lawton vs. Green, 64 N. Y., 326 (331); Palmer vs. Foley, 71 N. Y., 106 (108—9) ; Mark vs. Hyatt, 135 N. Y., 306; Garton vs. Brown, 27 Ill., 489; 13 Ency. Pl. and Prac., 436 and 442; Wells vs. *45 Parsons, 3 Harr., 505; Rhodes vs. Silvers, 1 Harr., 127; Anderson vs. Calaway, 2 Houst., 324.
Chandler, for plaintiff, replied that he followed the form laid down in Chitty on Pleading, page 700, and cited 2 Sawnders on Pleading, 652 ; 1 Saunders on Pleading, 212,—note 2.
Grubb, J.:—Do you agree with Mr. Ward, that this action is upon the same basis as an action on the case for malicious prosecution.
Mr. Chandler:—Yes; 1 think so.
The Court sustained the demurrer, and remarked that the form relied upon in Chitty on Pleading, page 700, was for an entirely different action.
Demurrer sustained.