Stewart, J.,
delivered the opinion of the Court.
In reviewing the judgment of the Circuit Court, overruling the defendants’ two demurrers — the one, to the entire declaration of the plaintiff, and the other, to the sixth count thereof; this Court must look to the declaration to see if there has been error in matters of substance, to the prejudice of the defendants.
The Code, Art. 75, secs. 2, 3, 4 and 5, require the plaintiff to make a plain statement of facts, as the ground of his action, and nothing more — the insertion of time is not necessary, except where it forms a part of the cause of action.
The subsequent pleadings on either side, are required to be of like character.
Special demurrers are abolished — general demurrers are prohibited for a mere informal statement of the cause of action. Secs. 6 and 7.
These provisions were intended in the trial of causes in the Courts, to prevent technical proceedings, and to regard only matters of substance.
According to these statutory provisions, the defendants’ demurrer to the entire declaration cannot be sustained, if there be one count sufficient in substance.
There are six counts in this declaration, five of which are good and stand unimpeached — if the sixth were defective, the demurrer could not be sustained because of the five remaining good counts. The demurrer to the whole declaration was properly overruled.
[16]*16The demurrer to the sixth cotint cannot be sustained, if that count contains a sufficient statement of the plaintiff’s grievance. The blanks are immaterial, unless they prevent a definite understanding of the complaint, which the defendants are required to meet.
That count, notwithstanding the blanks distinctly shows as the ground of the plaintiff’s complaint, that he was employed by the defendants for one year, to commence on the first of April, 1869, and for his services was to receive $1000, and he avers that he entered upon the performance of the services on the first of April, 1869, and faithfully labored for the defendants from that time to the-day of--— in the year 1870, and until he was discharged, without cause; that he was willing and offered to perform all -the services during the whole year; that he was prevented from doing so by the defendants; that he claims $2000.
It is apparent that the specification of the precise day or month in the year 1870, when he was discharged, was not of the substance of the plaintiff’s claim.
The averment of such time was not necessary to he proved; if the day and month had been stated, it would have been a mere formal averment.
Any statement of a fact not necessary to he proved, is not a matter of form. Art. 75, sec. 5 of the Code.
If the plaintiff proved that he worked for a less period than a year, and was discharged without cause, proof of such fact would be sufficient to entitle him to recover under the averment that he was engaged for the year.
If there had been an express averment that he was not paid, it was not necessary that it should be proved. The claim for damages is a sufficient allegation that the plaintiff was not paid.
If the jalaintiff could support by the proof the substantial averment, .that he had rendered the services alleged; the defendants must show that he was paid.
[17]*17The demurrer to the sixth count was properly overruled.
We think there was no error in overruling the defendants’ objection to the competency of the plaintiff as a witness in the first exception.
Thus far Saylor was proved to have been acting for the company of the defendants, with whom as agent, the contract was alleged to have been made. Because Saylor was dead, the plaintiff was not prevented from becoming a witness.
The Act of 1868, ch. 116, amending the Act of 1864, ch. 109, refers in terms to the parties to the contract, refusing the right of the one surviving to testify when the other is dead.
However equitable it might be to extend the provisions of the law to agents, where the contract had been made by the agent who was dead; not allowing in such cases the other party surviving to testify as to the contract; judicial construction cannot take the place of legislation, and give such effect to the law.
A majority of the Court agreeing with this opinion, in other respects entertain the view, that there was error in the ruling of the Circuit Court, in the defendants’ second exception, being of opinion, that the witness Howard Spencer, was a competent witness to prove that Saylor was a member of the firm, and for this error the judgment must be reversed.
There was no error in the ruling in the fourth exception.
The Court did in effect decide the question of the plaintiff’s competency as a witness, and the action of the Court gave the defendants another chance before the jury, which could not injure him. The Court has the right to do this in a civil case, although the rule is different in criminal cases, for good and sufficient reasons.
If the Court was not satisfied as to the proof of his incompetency, they had no right to exclude him; if it was [18]*18doubtful they could refer the question, which was really one of fact, to the jury. As to its effect, upon the hypothesis that the jury found the fact to be that Saylor was a party, the Court could instruct the jury, as was after-wards done by the granting of defendants’ fifth and sixth prayers. The defendants’ fourth prayer would have accomplished the same thing if it had not been properly ruled out on other grounds, hereafter alluded to. Whether the Court decided the question in advance, or in the event of the jury so finding, could make no difference to the defendants in a case of this nature.
See, as to the rule in civil cases, Trasher vs. Everhart, 3 G. & J., 234; Dement’s Adm’r vs. Stonestreet’s Adm’r, 1 Md., 123; Funk vs. Kincaid, 5 Md., 404; Nicholson vs. State, 38 Md., 140.
In the third exception question is made as to the effect of the rule on plaintiff to give security for costs. Code, Art. 27, sec. 10.
Under the rule the plaintiff has until the second day of ensuing term to give the security.
During the progress of the trial, and after the plaintiff had closed his testimony, the defendants then stated to the Court that it had just come to their knowledge, for the first time, that a rule, security for costs laid upon the plaintiff, had not been complied with; which being admitted by the plaintiff, the defendants asked the Court to stop the trial until that rule should be complied with, which the Court refused, being of opinion that the defendants had waived their right to insist upon the rule, by pleading to the merits.
We find no error in the refusal of the Court to suspend the trial on such account. The motion of the defendants came too late.
The law encourages diligence on the part of suitors in the maintenance of their rights, and laches is discountenanced.
[19]*19The rule did not pertain to the merits of the case, hut was prescribed for the protection of the defendants. It did not give them the power to use it ad libitum.
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Stewart, J.,
delivered the opinion of the Court.
In reviewing the judgment of the Circuit Court, overruling the defendants’ two demurrers — the one, to the entire declaration of the plaintiff, and the other, to the sixth count thereof; this Court must look to the declaration to see if there has been error in matters of substance, to the prejudice of the defendants.
The Code, Art. 75, secs. 2, 3, 4 and 5, require the plaintiff to make a plain statement of facts, as the ground of his action, and nothing more — the insertion of time is not necessary, except where it forms a part of the cause of action.
The subsequent pleadings on either side, are required to be of like character.
Special demurrers are abolished — general demurrers are prohibited for a mere informal statement of the cause of action. Secs. 6 and 7.
These provisions were intended in the trial of causes in the Courts, to prevent technical proceedings, and to regard only matters of substance.
According to these statutory provisions, the defendants’ demurrer to the entire declaration cannot be sustained, if there be one count sufficient in substance.
There are six counts in this declaration, five of which are good and stand unimpeached — if the sixth were defective, the demurrer could not be sustained because of the five remaining good counts. The demurrer to the whole declaration was properly overruled.
[16]*16The demurrer to the sixth cotint cannot be sustained, if that count contains a sufficient statement of the plaintiff’s grievance. The blanks are immaterial, unless they prevent a definite understanding of the complaint, which the defendants are required to meet.
That count, notwithstanding the blanks distinctly shows as the ground of the plaintiff’s complaint, that he was employed by the defendants for one year, to commence on the first of April, 1869, and for his services was to receive $1000, and he avers that he entered upon the performance of the services on the first of April, 1869, and faithfully labored for the defendants from that time to the-day of--— in the year 1870, and until he was discharged, without cause; that he was willing and offered to perform all -the services during the whole year; that he was prevented from doing so by the defendants; that he claims $2000.
It is apparent that the specification of the precise day or month in the year 1870, when he was discharged, was not of the substance of the plaintiff’s claim.
The averment of such time was not necessary to he proved; if the day and month had been stated, it would have been a mere formal averment.
Any statement of a fact not necessary to he proved, is not a matter of form. Art. 75, sec. 5 of the Code.
If the plaintiff proved that he worked for a less period than a year, and was discharged without cause, proof of such fact would be sufficient to entitle him to recover under the averment that he was engaged for the year.
If there had been an express averment that he was not paid, it was not necessary that it should be proved. The claim for damages is a sufficient allegation that the plaintiff was not paid.
If the jalaintiff could support by the proof the substantial averment, .that he had rendered the services alleged; the defendants must show that he was paid.
[17]*17The demurrer to the sixth count was properly overruled.
We think there was no error in overruling the defendants’ objection to the competency of the plaintiff as a witness in the first exception.
Thus far Saylor was proved to have been acting for the company of the defendants, with whom as agent, the contract was alleged to have been made. Because Saylor was dead, the plaintiff was not prevented from becoming a witness.
The Act of 1868, ch. 116, amending the Act of 1864, ch. 109, refers in terms to the parties to the contract, refusing the right of the one surviving to testify when the other is dead.
However equitable it might be to extend the provisions of the law to agents, where the contract had been made by the agent who was dead; not allowing in such cases the other party surviving to testify as to the contract; judicial construction cannot take the place of legislation, and give such effect to the law.
A majority of the Court agreeing with this opinion, in other respects entertain the view, that there was error in the ruling of the Circuit Court, in the defendants’ second exception, being of opinion, that the witness Howard Spencer, was a competent witness to prove that Saylor was a member of the firm, and for this error the judgment must be reversed.
There was no error in the ruling in the fourth exception.
The Court did in effect decide the question of the plaintiff’s competency as a witness, and the action of the Court gave the defendants another chance before the jury, which could not injure him. The Court has the right to do this in a civil case, although the rule is different in criminal cases, for good and sufficient reasons.
If the Court was not satisfied as to the proof of his incompetency, they had no right to exclude him; if it was [18]*18doubtful they could refer the question, which was really one of fact, to the jury. As to its effect, upon the hypothesis that the jury found the fact to be that Saylor was a party, the Court could instruct the jury, as was after-wards done by the granting of defendants’ fifth and sixth prayers. The defendants’ fourth prayer would have accomplished the same thing if it had not been properly ruled out on other grounds, hereafter alluded to. Whether the Court decided the question in advance, or in the event of the jury so finding, could make no difference to the defendants in a case of this nature.
See, as to the rule in civil cases, Trasher vs. Everhart, 3 G. & J., 234; Dement’s Adm’r vs. Stonestreet’s Adm’r, 1 Md., 123; Funk vs. Kincaid, 5 Md., 404; Nicholson vs. State, 38 Md., 140.
In the third exception question is made as to the effect of the rule on plaintiff to give security for costs. Code, Art. 27, sec. 10.
Under the rule the plaintiff has until the second day of ensuing term to give the security.
During the progress of the trial, and after the plaintiff had closed his testimony, the defendants then stated to the Court that it had just come to their knowledge, for the first time, that a rule, security for costs laid upon the plaintiff, had not been complied with; which being admitted by the plaintiff, the defendants asked the Court to stop the trial until that rule should be complied with, which the Court refused, being of opinion that the defendants had waived their right to insist upon the rule, by pleading to the merits.
We find no error in the refusal of the Court to suspend the trial on such account. The motion of the defendants came too late.
The law encourages diligence on the part of suitors in the maintenance of their rights, and laches is discountenanced.
[19]*19The rule did not pertain to the merits of the case, hut was prescribed for the protection of the defendants. It did not give them the power to use it ad libitum. It was the defendants’ duty to have insisted more promptly after the expiration of the time allowed the plaintiff to give security, for the enforcement of the rule. That should have been done before going to the trial of tbe cause.
After tlxat, the plaintiff had the right to treat the enforcement of the rule as waived.
Defendants’ fifth exception refers to the prayers, and is taken to the granting of plaintiff’s four prayers and refusal of the defendants’ first, second, third, fourth, seventh, eighth, ninth and tenth prayers.
The propositions ixx the plaintiff’s prayers are unobjectionable, fairly presenting the questions involved, leaving the jury to apply the evidence, which, however slight it might seem to the Court, it was their province to weigh and determine.
Defendants’ first prayer was properly rejected, because, in effect, it denied the liability of the defendants, Seyfert and McManus, unless the jury found they were, or had been members of the firm, known as “The Deer Creek Iron Works,” at the time of the alleged contract, ignoring their liability, if they held themselves out to the plaintiff as such.
The defendants’ second and tenth prayers were objectionable in asserting by the second that ixo evidence had gone to the jury that Seyfert and McManus had been members of the firm known as “The Deer Creek Iron Works,” or as averred in the tenth, held themselves out as such.
Any evidence, unless utterly inconclusive to a rational mind, however slight it might appear to the Court, must he weighed by the jury.
It was not the province of the Court to determine what effect it ought to have upon the jury.
[20]*20Besides the contract alleged-in the plaintiff’s sixth count, there were other counts of different import, and the jury were to apply the evidence accordingly to the issues.
The .third prayer of the defendants was objectionable in ■ making no discrimination, and there was no ground upon which the Court could have decided the question of variance presented in that prayer.
Defendants’ fourth prayer, we take it, was intended to present the proposition more clearly stated in the defendants’ fifth and sixth prayers, which were granted; that is, if the contract referred to in the sixth count was made out solely by the plaintiff’s testimony, and Saylor was a member of the firm and dead, then the jury must not regard the testimony of the plaintiff as to said contract; assuming this to have been the design of the prayer, otherwise it was utterly indefensible, yet if the plaintiff’s testimony to the special contract was to be disregarded, it was admissible, as to the other counts. The prayer was, therefore, properly refused.
Defendants’ seventh prayer was properly refused, and in fact seems to have been abandoned by the defendants’ counsel in his brief. The plaintiff must either recover on the contract, or on the quantum meruit — there could be no such measure of damages as that prayer required.
Defendants’ eighth prayer was properly rejected.
If the plaintiff rendered services, the jury could infer an agreement, express or implied, to pay him.
The mere fact of rendering services useful to the defendants would furnish prima facie evidence of their acceptance, and in the absence of some proof to the contrary, the law would raise an obligation to pay him what they were worth, there being no proof of special value.
Under the law, as settled in Adams’ Express Co. vs. Trego, 35 Md., 47, the propositions asserted in defendants’ ninth prayer were unobjectionable, and the prayer might have been granted if a similar instruction had not, in fact, [21]*21been given. But as the jury were substantially instructed under the theories of plaintiff's prayers, and this ninth prayer contained similar and no additional proposition, the refusal of the prayer was no ground of reversal.
Where the law has been stated by the Court to the jury in any prayer from the plaintiff or the defendant, any prayer embracing the same law, in substance, may be very properly refused, because it could only lead to embarrassment of the jury. Pettigrew vs. Barnum, 11 Md., 434; B. & O. R. R. vs. Resley, 14 Md., 424.
The Court’s modification of the ninth prayer of the defendants was not appealed from, and is not the subject of our review.
We find no error in the refusal to arrest the judgment.
The Code, Art. 75, secs. 23 to 33, provides for amendments in the proceedings in Courts. They have always received liberal construction for the advancement of substantial justice in the trial of causes. The Courts are bound to look to the merits of all questions, and the attainment of justice in proceedings before them.
The 8th section of Art. 75 of the Code expressly provides that judgment shall not be arrested for any formal omission.
The sending for the papers after the jury had retired, and the filling up of the blanks in the sixth count, as stated in the memorandum of the Court detailing the circumstances, was not material, and whether done or not, as we have stated in regard to the demurrer to that count, made no substantial difference. Some discretion in the trial of causes and directions to the jury, must, in the nature of things, be allowed to the Circuit Court, and unless attended with some injury to a party, is not the subject of review by this Court.
This Court can only judge of the validity of the verdict by reference to the pleadings and issues in the cause. Leopard vs. Chesapeake and Ohio Canal Co., 1 Gill, 222.
[22]*22(Decided 10th March, 1875.)
The reasons assigned for the arrest of the judgment where not ruled upon under „the demurrer, were more properly pertinent to the motion for new trial.
For the error in the second exception the judgment must he reversed.
Judgment reversed, and neto trial ordered.