filed the following concurring opinion.
I concur in the result in this case, but disagree with the view of the majority as to the effect which should be given to a motion to dismiss (or the equivalent of such a motion)' submitted at the conclusion of the plaintiff’s case. The opinion of the Court states that no Maryland case has been found which expressly passed upon the point, and I agree. However, motions similar to that in the instant case have been involved in two recent decisions of this Court, Tribull v. Tribull, 208 Md. 490, 119 A. 2d 399; and Wardrop v. Wardrop, 211 Md. 14, 124 A. 2d 576. It is true that the propriety of making such a motion was not challenged in either of those cases; but, I may add, it was not challenged by either party in the instant case. Since I happen to have written each of the opinions just referred to, it may not be amiss to confess that the impropriety of such motions now announced by the majority did not occur to me at the time of the preparation of those opinions.
In the Wardrop case, the propriety of offering a motion to dismiss at the conclusion of the complainant’s case seems to me to be implicit in the express holding that it was within the discretion of the Chancellor to grant or deny such a motion. There have been several other cases in this Court recently in which motions similar to that in the present case have been made, and no question as to the propriety of their being offered (as distinguished from the obvious impropriety of what some of them have been called — “a motion for a directed verdict”) has been raised. What has been the recent seem*38ing growth of their use, and their tacit or express acceptance in the Tribull and Wardrop cases, suggest to me that our actual practice in equity has progressed beyond the rigidity-of the rule adopted by the majority opinion. To me, this is at least as significant as the fact that Rule 565 of the present Maryland Rules (entitled “Demurrer to the Evidence”) is applicable only to law cases or that Rule 741 b of those Rules applies only to criminal cases.
It seems to me, despite expressions to the contrary in some of the cases cited in the majority opinion, that the rule now announced is a product of the ancient practice of submitting equity cases on written, not oral, testimony. An interesting historical account of the development of the taking of testimony both in England and in Maryland will be found in Chancellor Bland’s opinion in Winder v. Diffenderffer, 2 Bland 166, at 184-191 (1829). Complete secrecy veiled the taking of the answers of witnesses to the interrogatories propounded to them under the English practice until the commissions were returned to court. When all of them had been returned an order would be entered for their publication— i. e., “that they be opened, read, and copies taken by all concerned, if required.” Chancellor Bland added (p. 186) : “The examinations being thus brought to a conclusion and made public, no further testimony can be taken in relation to the matter in issue between the parties; unless under very special circumstances.” Such secrecy did not prevail in Maryland after the passage of Chapter 72, Section 15, of the Acts of 1785, under which the _ parties and their solicitors were permitted to be present at the taking of testimony. As Chancellor Bland points out, the examination and cross-examination of witnesses proceeded in the same manner as in a court of law, “except that it is all in writing.” (Emphasis supplied.) See also Phelps, Juridical Equity (Abridged Ed., 1894), § 70, which indicates that the practice was much the same in 1894 as it had been in 1829. See also Miller, Equity Procedure, §§ 213, 223.
It was not until 1896 that general provision was made by Chapter 35 of the Acts of that year for taking the testimony *39of witnesses in open court upon demand of any party or upon the court’s own motion. Miller, op. cit., § 223.1
*40Some search of works on equity practice when all testimony was submitted in written form has failed to reveal any mention of a motion to dismiss the bill' at the conclusion of the complainant’s case. It seems to me, however, that the fact that such a motion was probably unknown under the old equity method of taking testimony does not require the conclusion that it is therefore improper under the comparatively recent and frequently used method of taking testimony orally in open court.
Even under the old equity practice, which generally barred the production of additional testimony after a case had been set down for hearing, absolute rigidity did not prevail and the Chancellor, in his discretion, might allow defects of proof to be supplied in some circumstances. Miller, op. cit., § 218; Salmon v. Clagett, 3 Bland 125, 167; Worthington v. Hiss, 70 Md. 172, 16 A. 534, 17 A. 1026. In the latter case Judge Miller, speaking for the Court, said (70 Md. at 188) : “In fact we think it the plain duty of a Court of equity to allow .further proof to come in at any time during the progress of a cause when, in its judgment, the taking of such proof will subserve the ends of justice.”
The cases cited by the majority in support of the rule now announced are all of comparatively recent origin. Among them is Bach v. Friden Calculating Machine Co., 148 F. 2d 407 (C. C. A., 6th). In applying Rule 41(b) of the Federal Rules of Civil Procedure (even prior to the 1948 amendment thereof), the Court expressed what I believe to be the general modern trend of thought on such matters in saying (at p. 410): “When it is remembered that the purpose of the *41Rules of Practice is to expedite the trial of cases, it would seem that the trial court should be able to dispose of cases at the earliest opportunity and to this end, that it should have the power to weigh the evidence and consider the law at the end of plaintiff’s case in jury-waived actions or in equitable proceedings.” 2
The argument that because a court of equity is a court of conscience, the Chancellor should hear both sides before deciding the case is of little force or applicability in a situation of this sort, as I see the matter. It would, I think, be a strange manifestation of conscience to require a defendant to meet and disprove a case which the Chancellor, after a full hearing of the plaintiff’s side of the matter, considered to be groundless or ill founded. The rule adopted by the majority requires the defendant to do just that, unless he is willing to gamble (a) that the Chancellor is ready to find in his favor and (b‘) that this Court will either sustain the Chancellor’s conclusion or at least will not upset it without affording the defendant an opportunity to adduce his evidence.
It is true that this Court does have power to remand a case, without affirming or reversing the decree, and to direct that further testimony be received. It seems to me, however, to reverse the normal course of the judicial process to deprive the trial court of the power to exercise judicial discretion as to whether or not the defendant should be required or permitted to go forward with his proof, and to insist that the exercise of such discretionary power be placed solely in the hands of the appellate court. In saying this I have not over*42looked General Ins. Co. v. U. S. Ins. Co., 10 Md. 517, and Judge Tuck’s statement therein, which is quoted by the majority, as to the power of the Court of Appeals under Ch. 312 of the Acts of 1832 (now incorporated in Rule 871 a of the Maryland Rules) to do more than the trial court could have done, by remanding a case for further proceedings, despite its having been submitted to the trial court for final decree. It may be noted that in that case there had been a clear submission of the case (more than twenty years after it had been instituted) and that the power to remand was not exercised. One reason for its non-exercise was that the appellant failed to show that the ends of justice required such a remand.
Although most of the cases which have considered the question support the majority view, not one of those decisions is binding upon this Court. I am in agreement with the views expressed in a concurring opinion by Justice Woods of the Supreme Court of South Carolina in Garner v. Garner, 52 S. E. 194, and with the views of the court in Powell v. Canaday, 95 Mo. App. 713, 69 S. W. 686. Justice Woods said in part: “I do not assent * * * to the view * * * that the circuit judge should never dismiss an equity cause upon .hearing the evidence of the plaintiff, however conclusively it may show he is not ehtitled to recover. The authorities cited in the majority opinion fully establish that where an issue of fact is referred to a jury a nonsuit cannot be granted. * * * But on the trial of an issue from an equity cause submitted to a jury the practice of directing a verdict for defendant when it is plain the plaintiff has not established his case is sustained in Brock v. Nelson, 29 S. C. 49, 6 S. E. 899, and Gilreath v. Furman, 57 S. C. 289, 35 S. E. 516. It follows inevitably that where the circuit judge is trying the cause on evidence taken in open court, or by a master or referee under the order of the court, and it appears clearly from the plaintiff’s own showing that in no view of the facts could there be a decree in his favor, the circuit judge may dismiss the complaint without consuming the time and labor necessary to take the evidence on the part of the defendant.” (52 S. E. 195.)
*43In Powell v. Canaday, supra, the Appellate Court (not the Supreme Court) said: “Although a demurrer to the evidence is not strictly applicable to a proceeding in equity, it may be treated as a practical mode of arriving at the view of the trial judge in a proceeding of this kind. At the close of plaintiff’s testimony, the learned judge announced as his opinion that plaintiff had no case in equity. We see no reason why he might not so declare, and thereby save public time, and the annoyance of unnecessary proceedings. This the learned trial judge did. There was no substantial error in his procedure in so doing.” (69 S. W. 686.)
In summary, the rule announced by the majority seems to me not to be required by any authority binding upon this Court to be inconsistent with our own recent actions in the Tribull case and (even more so) in the Wardrop case and to run directly counter to modern efforts to reduce the time, effort and expense of litigation. I hope that this matter may receive the early consideration of the Rules Committee.
. Briefly, the development of equity rules and of statutes relating to this matter was as follows:
In 1883 this Court first promulgated its General Equity Rules. Rule 45 (later included in the Code of 1888 as Sec. 225 of Art. 16) permitted the examination of witnesses in the Circuit Court of Baltimore City, by agreement of the parties and with the concurrence of the court, “orally in court, in the presence of the judge thereof”. It further provided that the evidence so taken should be written down in such manner as the court might direct and that it be filed in the case “to be used as if taken before an examiner”. By Chapter 86 of the Acts of 1890, this method of taking testimony of the witnesses, or of any of them, was made available in equity courts generally “if the court in the exercise of its sound discretion to serve the ends of justice shall so order on application of a party, or [on] its [own] motion”. By Chapter 35 of the Acts of 1896, oral examination of the witnesses, or any of them, in open court might still be ordered by the court of its own motion, but was made mandatory upon application of a party in interest. Testimony so taken was still required to be filed and used as if taken before an examiner.
By Chapter 377 of the Acts of 1914, it was provided that testimony taken in open court in equity cases be taken “in the same manner and under the same rules as testimony is now taken in actions at law”; and the provisions with regard to writing down the oral testimony and filing and using it as if taken before an examiner were changed to read: “and when so written down shall, with such documentary proof as shall have been with it offered and admitted, be filed as a part of the proceedings”. The Section amended by this Act of 1914 was Sec. 261 of Article 16 of the 19,11 Code. A new section, 261-A, was added by this same Act, which provided for proffers of proof if objections to evidence were sustained, so that the rulings thereon could be reviewed on appeal.
These Sections continued without change into the 1951 Edition of the Code as Secs. 320 and 321 of Article 16, except that a proviso was added by Chapter 397 of the Acts of 1937 to the earlier Section dispensing with the need of transcribing testimony taken down in shorthand if no appeal was taken. These Sections were superseded by Rule 581 of the Maryland Rules and were repealed by Chapter 399 of the Acts of 1957. They were not altered in substance when incorporated in Rule 581.
The 1937 proviso emphasized (though I think it certainly did not originate) the complete and final breaking away in cases where *40the testimony was submitted orally in open court from the old practice of requiring all evidence in equity cases to be in writing.
It is hardly necessary to refer to the well established rule under which great weight is accorded on appeal to the findings of fact of the Chancellor based upon the evidence and due regard is given to his opportunity to see and hear the witnesses and to judge their credibility. The difference in this respect between cases where testimony was taken before an examiner and where it was taken before the court has been commented upon by this court more than once.
. It would serve no useful purpose to review some differences of opinion in the Federal courts prior to 1948 as to whether or not the analogy of jury cases should be carried over into cases where the judge was the trier of facts, so that he should not grant a motion to dismiss made at the conclusion of the plaintiff’s case if there was enough evidence to have taken the case to the jury, if there had been one. The 1948 revision of the Federal Rules of Civil Procedure adopted the view that the judge, as the trier of the facts, could dispose of the case, on motion, at the conclusion of the plaintiff’s evidence, if he thought that the plaintiff had failed to meet the burden of proof.