SYLLABUS.

MARGARET ASPIN vs. CHARLES P. CORNELL.

Case-Damage to Real Estate-Possession and Reversion— Pleading-Evidence- Variance-Amendments.

1.

Where the allegations of plaintiff's declaration, in an action for damages to real estate, go to the damage of the person in possession of the premises only, and the evidence shows the plaintiff not to be in possession of any part of the premises, there is a fatal variance between the proof and the allegations in the narr, which should have alleged damage to the reversionary right of plaintiff.

2. In such case plaintiff's application to have a juror withdrawn, and that he be allowed to amend the declaration, will not be granted.

(November 27, 1900.)

LORE, C. J., and SPRUANCE and GRUBB, J. J., sitting.

Harry R. Bringhurst for plaintiff.

The defendant was unrepresented by counsel at the trialHenry C. Conrad having withdrawn as counsel.

Superior Court, New Castle County, November Term, 1900.

ACTION ON THE CASE (No. 116, September Term, 1899), for damages to certain real estate, the title to which was in the plaintiff, said real estate being in the possession of tenants. The first count of the declaration was as follows:

"For that whereas, the said plaintiff heretofore, to wit, on the first day of October, A. D. 1896, was, and from thence hitherto has been, and still is, lawfully possessed of certain closes, pieces or parcels of land situate in the City of Wilmington, and New Castle County aforesaid, at the north-east corner of Fifth and Adams streets, extending along the said side of Fifth street easterly seventyeight feet to the westerly side of a four feet wide alley, and extending northerly that width to the line of the land and close of the

STATEMENT OF CASE.

said defendant, and that the said defendant during the time aforesaid was, and still is, possessed of and in the occupation of a certain close, piece or parcel of land situate and being in the City of Wilmington aforesaid, and contiguous and next adjoining to the said closes of the said plaintiff; and the said defendant during all the time aforesaid by right ought to have repaired and amended, and still by right ought to repair and amend a certain stone wall along the northerly boundary line of the said closes of the said plaintiff as often as occasion hath required, and to have kept the same in repair and properly amended, yet the said defendant, well knowing the premises, but contriving and wrongfully and unjustly intending to injure and aggrieve the said plaintiff in that behalf, whilst the said plaintiff and defendant were respectively possessed of their said respective closes, with the said appurtenances as aforesaid, to wit, on the day and year aforesaid, and on divers other days and times between that day and the present time, to wit, at the county aforesaid, wrongfully and unjustly suffered and permitted the said stone wall to be and continue and the same then was ruinous, prostrate, fallen down and out of repair, and in great decay for want of needful and necessary repairing and amending of the same, whereby the said stone wall, and the fence thereon erected, overhung and encroached upon and still overhangs and encroaches upon the said closes of the said plaintiff, to the damage of the said plaintiff," etc.

The second count differed from the first only in that it alleged that the defendant "wrongfully and unjustly suffered and permitted the water, rain and snow falling and the ice forming upon the premises of the said defendant to discharge upon the said closes of the said plaintiff, and by means thereof divers large quantities of water, snow, dirt and filth issued and flowed from the said lands of the said defendant upon and into the said premises of the said plaintiff and greatly injured and damaged the said plaintiff," etc.

The third and last count of plaintiff's declaration alleged the damage as occasioned by the defendant's unjustly suffering and per

OPINION.

mitting his said soil, earth and dirt to be discharged upon the said closes of the said plaintiff, etc.

During the taking of testimony at the trial, it having developed that none of the said closes of the said plaintiff was in her possession, but that all of the same were in the possession of tenants, the Court held that there was a fatal variance between the proof and the allegations in the narr, which should have alleged damage to the reversionary right of plaintiff.

Mr. Bringhurst thereupon asked that a juror be withdrawn and that the plaintiff have leave to amend her declaration in conformity with the above facts.

LORE, C. J.:-We decline to withdraw a juror and amend the declaration. The case does not present such facts as would warrant us in granting your application.

The allegations of the declaration go to the damage of the persons in possession of the premises only, while the evidence shows the plaintiff not to be in possession of any part of the premises.

On the application of plaintiff's counsel, the case is discontinued.

SYLLABUS.

JOHN MAC FARLANE vs. ARTHUR H. G. GARRETT and WILLIAM A. BARR, trading as GARRETT & Barr.

Case-Demurrer; Special-Amendment-Discretion of CourtConstitution Statute-Pleading.

I.

The Court will, in a proper case, and in the exercise of its discretion, per. mit a defendant to withdraw his pleas after issue joined, for the purpose of demurring specially.

2. In an action for damages for causing a restraining order to be issued out of the Court of Chancery against the plaintiff, it is necessary that the narr should aver that said restraining order was procured maliciously and without probable cause. If the narr does not contain such an averment, and is demurred to, the demurrer will be sustained.

(December 1, 1900.)

LORE, C. J., and SPRUANCE and GRUBB, J. J., sitting.

Lilburne Chandler for plaintiff.

Howell S. England and Herbert H. Ward for defendant.

Superior Court, New Castle County, November Term, 1900.

ACTION OF TRESPASS UPON THE CASE (No. 15, November Term, 1899). Demurrer.

Counsel for defendant asked leave to file special demurrers to the plaintiff's declaration; the defendant having first pleaded to the action and obtained leave to amend and withdraw his pleas.

Chandler, for plaintiff, objected; contending that the defendant could not be allowed to demur specially after pleas to the action, joinder of issue thereon, leave to amend and withdrawal of pleas.

Robinson and Ponder vs. Holland, 2 Harr., 445; Stephens on Pleading, 151; Chitty on Pleading, 672.

OPINION.

SPRUANCE, J.:-The provision of Section 24 of Article 4 of the Constitution of 1897 relating to amendments is as follows:

"In civil causes, when pending, the Superior Court shall have power, before judgment, of directing, upon such terms as it shall deem reasonable, amendments impleadings and legal proceedings, so that by error in any of them, the determination of causes according to their real merits, shall not be hindered."

A similar provision is found in the Constitution of 1792, Art. 6, Sec. 7, and in the Constitution of 1831, Art. 6, Sec. 16.

A very restricted interpretation of this power was given by the Court as early as 1838.

In that year, in Waples vs. McGee et. al., 2 Harr., 444, leave to amend for the purpose of pleading the act of limitation, or any plea not going to the merits was refused, and in Robinson, et al., vs. Holland, 2 Harr., 445, the Court refused, after issue joined, to permit the defendant to withdraw his pleadings for the purpose of demurring specially.

By Chapter 112 of the Revised Code of 1852, relating to "Defects in pleading and the amendment thereof," which is the same as Chapter 112 of the Revised Code of 1893, a distinct advance was made toward "the determination of causes according to their real merits."

The following is Section 11 of said Chapter: "In any civil cause pending before the Superior Court, the said Court shall have power, at any time before judgment, to allow amendments either in form or substance, of any process, pleading or proceeding, in such action on such terms as shall be just and reasonable." The purpose of the statute appears to have been to enlarge the power of amendment.

While this section is not expressly mandatory as to the allowance of amendments either as to form or substance, it clearly indicates that the exercise of the power is not to be limited to matters of substance merely, but is to be extended as well to matters of form in any proper case.