FLINT v. FLINT. March 4, 1912.) (Superior Court of Delaware. moves the court here to now remove fre said suit the said James H. Kenton who was New Castle. heretofore duly admitted in the said suit by this court here to prosecute said suit as the INFANTS ( 88*)-SUIT BY NEXT FRIEND-next friend of the said Martha J. Flint, and Upon the infant plaintiff in a divorce action becoming of age after the award of a decree nisi, her next friend, suing for her, may, upon motion showing that she had become of age, be removed, and plaintiff be substituted to herself prosecute the suit to final judgment. [Ed. Note.-For other cases, see Infants, Cent. Dig. §§ 253, 254; Dec. Dig. § 88.*] Action by Martha J. Flint, an infant, by her next friend, James H. Kenton, against Thomas W. Flint. On motion for removal of next friend, and substitution of infant as acting plaintiff. Motion granted. Argued before BOYCE and RICE, JJ. Action for divorce (No. 59, January term, 1911). Decree nisi granted March 6, 1911. Martha J. Flint, an infant under the age of 21 years, by leave of the court, brought an action for divorce by her next friend, K., to the January term, 1911. She was awarded a decree of divorce nisi at the succeeding March term. Franklin Brockson, attorney for the plaintiff and the next friend, presented to the court at the March term, 1912, before the expiration of one year from the granting of the decree nisi, the following petition: "Now, to wit, this fourth day of March, A. D. 1912, Franklin Brockson, attorney for Martha J. Flint, the plaintiff, and James H. Kenton, the next friend of said Martha J. Flint, in the above stated suit, suggests to the court here that the said Martha J. Flint is now over twenty-one years of age, and that she became twenty-one years of age on the sixteenth day of June, A. D. nineteen hundred and eleven, and the said Franklin Brockson, attorney for the said Martha J. Flint and James H. Kenton, as aforesaid, to permit and authorize the said Martha J. Flint in her own name and right to prosecute said suit to final judgment. "And the said attorney further moves the court here that the above suggestion and motion be entered upon the records of this court in said suit." In presenting the said petition, counsel for the plaintiff referred to the case of Baldwin, Infant, by Her Next Friend, B., v. People's Ry. Co. (No. 24, May Term, 1907) 7 Pennewill, 81, 76 Atl. 1088, in which, during the pendency of said action, the infant having died and counsel for the administrator of the deceased infant having presented a petition similar in form to the one here, the next friend was removed from said cause and the administrator of the deceased infant was substituted as plaintiff in said action. PER CURIAM. Leave is granted to file the petition. The court made the following order: And now, to wit, this 4th day of March, A. D. 1912, the within suggestion having been made, and the said motion having been made to the court here, and the same having been maturely considered by the court, it is ordered and decreed by the court that the said James H. Kenton, who was duly admitted in the said suit, by the court here, to prosecute said suit as the next friend of the said Martha J. Flint, be, and he is, hereby now removed from said suit as such next friend, and that said Martha J. Flint be, and she is, hereby permitted and authorized to prosecute, in her own name and right, the said suit to final judgment; and it is further ordered and directed by the court that the said suggestion and motion and this order and decree be entered on the records of this court in said suit. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes and special jurisdiction, and of such jurisdiction only as is conferred by the Constitution, and the statute laws of the state enacted in conformity therewith. Section 15 of the charter of the city of Wilmington (page 40, Charter Laws and Ordinances of the City of Wilmington 1910) provides: "The said municipal court shall have sole and exclusive jurisdiction to inquire of, hear, try and finally determine all those criminal matters and offenses enumerated in the fifteenth section of the sixth article of the amended Constitution and committed within the said city and to punish all persons convicted of said offenses or any of them agreeably to the laws of the state." Wilmington City Charter, § 15 (Charter Laws and Ordinances of the City of Wilmington 1910, p. 40), provides that the municipal court shall have exclusive jurisdiction to determine all those criminal matters and offenses enumerated in the fifteenth section of the sixth article of the amended Constitution and to punish persons convicted of such offenses. Const. 1831, art. 6, § 15, referred to, permits the General Assembly to give to any inferior courts jurisdiction of certain offenses, including "keeping without license a public house of entertainment, * * * retailing or selling without license, wine, rum, brandy, gin, whisky or spirituous or mixed liquors, contrary to law." The information charged that accused, not having a proper license to sell intoxicating liquor according to law, * * * did then "The General Assembly may by law give and there sell intoxicating liquor" contrary to to any inferior courts by them to be establaw. Held, that the information did not affirm-lished, or to one or more justices of the atively show an offense of which the municipal court of Wilmington city had jurisdiction, not peace, jurisdiction of the criminal matters showing that the intoxicating liquors accused following, that is to say: was charged with having sold were of the kind enumerated in the Constitution. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 216; Dec. Dig. § 197.*] Certiorari to Municipal Court of City of Wilmington. Isaac Anderson and another were charged with unlawfully selling intoxicants, in an information filed by the State, and they bring certiorari to the municipal court of the city of Wilmington to review a judgment sustaining the jurisdiction of that court. Reversed. Argued before PENNEWILL, C. J., and WOOLLEY, J. This statute was passed when the Constitution of 1831 was in force, section 15, article 6, of which was as follows: "Assaults and batteries, keeping without license a public house of entertainment, tavern, inn, ale house, ordinary or victualling house, retailing or selling without license wine, rum, brandy, gin, whisky or spirituous or mixed liquors contrary to law,'" etc. The language of the present Constitution is similar to the Constitution of 1831, respecting the jurisdiction of inferior courts, as to the matters pertinent to this case. It appears therefore that the sale of "intoxicating liquors" is not specifically mentioned as within the jurisdiction of the municipal court, which is an inferior court, and created by the authority of the constitutionPhilip L. Garrett, for plaintiffs in certiora-al provision aforesaid. While all the beverri. John Lynn, Asst. City Sol., for the State. ages mentioned in the Constitution are intoxicating liquors, there are nevertheless inPENNEWILL, C. J. (delivering the opin-toxicating liquors that are not enumerated ion of the court). The information filed in the above stated case in the municipal court alleges: "That the said Isaac Anderson and Amanda Ray then and there being the occupants of said house, and that the said Isaac Anderson and Amanda Ray then and there not having a proper license to sell intoxicating liquor according to law, that the said Isaac Anderson and Amanda Ray did then and there sell intoxicating liquor to one Cornelia Starkey contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state." It is contended by the defendants below that the offense charged in the information is not within the jurisdiction of the municipal court, and that therefore the judgment below should be reversed. therein. The term is broader than the constitutional provision, and might cover an offense that is not within the jurisdiction of the municipal court. In this case the record does not disclose the kind of intoxicating liquor that was sold, and therefore the jurisdiction of the court does not affirmatively appear. For this reason we think the judgment below should be reversed. But, while we so hold, it must not be understood that the sale of beer and other intoxicating liquors not enumerated in the Constitution is not unlawful, and the seller cannot be punished. This decision only means that such offenses are not within the jurisdiction of the municipal court. Not being within the jurisdiction of that court, they are within the jurisdiction of the Court The municipal court is a court of limited of General Sessions. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes STATE ex rel. BRUMLEY v. JESSUP & MOORE PAPER CO. (Superior Court of Delaware. New Castle. Feb. 2, 1912.) 1. MANDAMUS (§ 187*) - RETURN - AMEND MENT. On appeal from a decision of the Superior Court refusing to quash the return to an alternative writ of mandamus, the Supreme Court held that such decision was a final judgment, reviewable by it, although formal judgment was not entered below, reversed the judgment, quashed the return, and remanded the case for the purpose of issuing a peremptory writ. Held, that the Superior Court could not thereafter permit the filing of an amended return, both Const. art. 4, § 24, and Rev. Code 1852, amended to 1893, p. 849, c. 112, § 11, limiting the power to allow amendments to amendments before judgment, and also because, the original return having been quashed, there was nothing to amend. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 427-437; Dec. Dig. § 187.*] 2. MANDAMUS (§ 187*) - JURISDICTION OF LOWER COURT AFTER REMAND. After the reversal of a judgment quashing a return to a writ of mandamus, the Superior Court had no power, except to issue the peremptory writ directed by the Supreme Court, and to take such proceedings as were necessary for this purpose. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 427-437; Dec. Dig. § 187.*] 3. MANDAMUS (§ 153*)-AMENDMENT OF RE TURN. After the executrix of the relator has been substituted as a party to a mandamus proceeding, objections to such substitution cannot be raised and considered on a motion to amend the return. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 294, 295; Dec. Dig. § 153.*] Mandamus (No. 129, September term, 1908) by the State, on the relation of Irene Brumley, executrix of Horace T. Brumley, deceased, against the Jessup & Moore Paper Company. Application for leave to file an amended return after a final judgment by the Superior Court on a motion to quash the return, and after final decree in the Supreme Court on a writ of error reversing the judgment of said lower court and quashing the return. Application denied. See, also, 7 Pennewill, 397, 72 Atl. 1057. Argued before PENNEWILL, C. J., and BOYCE, J. Robert H. Richards, for relator. Willard Saulsbury and Hugh M. Morris for respond ent. PENNEWILL, C. J. (delivering the opinion of the court). The original petition in the above entitled cause was filed July 1, 1908, and a rule was then issued upon the defendant to show cause why a peremptory writ of mandamus should not issue against it to permit the original relator, Horace T. Brumley, to inspect and make copies of certain books of the defendant. A motion was made September 26, 1908, by the defendant to quash the rule and dismiss the petition, which, after argument was refused; and the court on December 8, 1908, ordered that the alternative writ of mandamus issue. The alternative writ was issued December 28, 1908, and the return thereto filed January 16, 1909. A motion was filed March 24, 1909, to quash the return on the ground that it was insufficient to prevent the relator from having the relief sought, which motion was refused. The court decided that the return was sufficient, but no formal judg ment was entered. Upon such decision a writ of error was taken to the Supreme Court, which writ counsel for the defendant moved the court to dismiss on the ground that no final judgment had been rendered by the Superior Court which could be reviewed on writ of error. This motion was fully argued, and, after consideration, was refused, the court holding, upon the authority of Union Church v. Saunders, 1 Houst. 100, 107, 63 Am. Dec. 187, and the following cases in other states: Johnson v. Gillett, 52 Ill. 358; Chance v. Temple, 1 Iowa, 179; that there had been a final judgment, or proceeding within the meaning of the Constitution, of the Superior Court, and that the same was reviewable on writ of error by the Supreme Court. The case was afterwards argued on the merits, and an opinion delivered by the Supreme Court reversing the judgment of the court below, and directing "that the record be remanded to the said Superior Court, in and for New Castle county, in order that such proceedings may be had as shall be in accordance with this judgment and with the opinion herein rendered by this court, and with the practice of the said Superior Court. The said judgment of the Supreme Court was remanded to the Superior Court, where a motion was afterwards made by counsel for the relator that the executrix of the relator, Horace T. Brumley, who had died, be substituted as relator for the said Horace T. Brumley. This motion, which was opposed by the defendant, was after argument, granted, and the substitution ordered to be made. State ex rel. Brumley v. Jessup and Moore -, 80 Atl. 350. Paper Co., 2 Boyce, Counsel for the defendant now make application to this court for leave to file an amended return, which is a new return, and described as being "in lieu of the return heretofore made." The application is opposed by counsel for the relator, who contends "that there is no justification or legal authority, in this state or elsewhere, to permit the defendant to le this new return at this stage of the case." [1] The question for this court to deter mine is whether the defendant's return can | in this cause, that there was a final judgment be amended after a final judgment or proceeding, in the court below on a motion to quash the return, and a final decree of the Supreme Court on writ of error reversing the judgment of the lower court and quashing the return. It must be conceded that the proposed amendment cannot be allowed unless authorized by the constitutional or statutory provisions of this state respecting amendments, which provisions are as follows: "In all civil causes, when pending, the Superior Court shall have the 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." Section 24 of article 4 of the Constitution. or proceeding by the Superior Court on the motion to quash the return, and also that a final decree was entered by the Supreme Court reversing the judgment below, quashing the return, and remanding the case to the Superior Court for one purpose only, viz., to order the issuance of the peremptory writ in accordance with the opinion and direction of the Supreme Court. [2] The Superior Court has no duty to perform, and no power in the premises, other than to carry out the mandate of the Supreme Court, which is, to order the issuance of the peremptory writ as directed. This could not be done without substituting the execu trix of the relator in place of the relator who had died, and the substitution was accordingly made for that purpose. We are clearly of the opinion that this court cannot grant the motion made by the defendant for leave to amend his return, or make a new defense, after final judgment or proceed-. the court above, on the merits of the case. "In any civil cause pending before the Superior Court, the said court shall have power, at any time before judgment, to allowing, in the court below, and final decree in amendments, either in form or substance, of any process, pleading or proceeding, in such action, on such terms as shall be just and reasonable." Section 11 of chapter 112 of the Revised Code. It is manifest from these provisions that this court has no power or authority to allow the amendment asked for if a judgment, within the meaning of the Constitution and statute, had been rendered in the case, because both the Constitution and the statute, in granting to the court power to permit amendments, limit the right to a time anterior to the rendition of judgment. And it may be also observed that in order that an amendment may be made to a pleading or proceeding there must be something by which to amend. The effect of the decree of the Supreme Court was to quash the defendant's return, and consequently there was nothing left which might be amended. Practically, therefore, the defendant seeks by his present application to file a new return after there has been a final decision and judgment upon the merits of the case. There can be no authority for granting such an application, and it must be denied. Counsel for defendant in making their ap plication for leave to file an amended answer or return, evidently relied upon the case of State v. Hiram Grand Lodge, 2 Pennewill, 21, 43 Atl. 520, and but for that case we think the application would perhaps not have been made. Although no judgment was formally entered by the Superior Court in refusing to quash the return, it was decided by the Supreme Court, on a motion to dismiss the writ of error on that ground, that the decision of the lower court constituted a final judgment, or proceeding, within the meaning of In the Hiram Lodge Case, which was rethe Constitution, and one which might be re-cently decided in this court, a motion had viewed by writ of error. The Supreme Court, in reversing the court below said: "We hold that the re lator is therefore entitled to the peremptory writ of mandamus of the court to which this case is remanded, to be issued by that court under such reasonable regulations as to time and place as it may direct, commanding the defendant to suffer and permit the relator, or his duly authorized attorney, to inspect and make copies of such of the books, papers and accounts and writings of the defendant mentioned in his petition, and only of such of them that, under the direction of the said court, are found essential and sufficient to furnish the information whereby the relator may determine the value of his stock." been made to quash the return on the ground of insufficiency, and the court in concluding their opinion said: Inas "We adjudge the return insufficient, and grant the motion to quash the same. much, however, as leave has been asked by the respondent to amend his return, in case it should be considered by the court insufficient, and as such seems to be now the common practice, leave is granted the respondent to amend his return." This case cannot be regarded as an authority for the application made in the present case. It is clearly distinguishable because the leave granted was within the authority of the Constitution and statute above quoted. The fact was, and it sufficiently appears from the opinion, that the application was entered, but also before the decision was [lines thus extended will be the boundaries of rendered on the motion to quash. In that case the motion to quash the return was argued with the full understanding that leave should be granted the defendant to amend if the court should be of the opinion that the return was insufficient. The court, in using the language, "and as such seems to be now the common practice," 'meant only that it had become the common practice in other jurisdictions to allow a return in mandamus to be amended before judgment upon just and reasonable terms, if in the opinion of the court the determination of the cause according to its real merits, would be promoted thereby. Such is the practice now usually observed, and it is not only supported by authority, but is entirely consistent with reason and justice. [3] If there is any reason why the executrix of Horace T. Brumley should not have been substituted as relator, that did not equally apply to Horace T. Brumley, we think it should have been urged at the time the motion to substitute was argued. The recollection of one of the judges now sitting, who sat at that time, is that the objection was then made, but not emphasized or discussed at any length. The right to substitute the executrix in place of the original relator was strongly resisted on other grounds, and but little stress was placed upon the point that there might be reasons personal to the executrix why she should not be made a party. Upon an examination of the proposed amended return we find that the only new question raised involves the point that objection might be made to the executrix hav ing the right to examine the books and papers which the original relator asked to be permitted to examine, and which request the court granted. Such objections, as we have said, might very properly have been made at the time when the executrix was made party relator, and in fact was then made, and we are clearly of the opinion it cannot be made now. The application of the defendant for leave to amend his return is, for the reasons above given, refused. each lot; but if the river line is curved reguof the lots diverge from or interfere with each larly or irregularly, so that the extended lines other, the triangular parcels thrown out or included thereby must be equally divided between the adjoining owners. [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. § 197; Dec. Dig. § 36.*] 2. NAVIGABLE WATERS (§ 36*) FLATS — BOUNDARIES. - HALEY, J. [1] This is an action of trespass quare clausum to recover damages for driving of stakes and mooring a boat upon flats appurtenant to Gerrish Island in the mouth of the Piscataqua river, in Kittery. The case is before the court upon an agreed statement of facts. The defendant admits doing the acts com plained of, and justifies by a claim of ownership to the flats upon which these acts were done, and claims that, by the rule laid down in Emerson v. Taylor, 9 Greenl. 42, 23 Am. Dec. 531, in construing the Colonial ordinance of 1641, applied to this case, he was the owner of that part of the flats. plaintiff admits that, by the rule of Emerson v. Taylor, the acts complained of were committed upon the flats owned by the defendant, and asks the court to apply a different rule to this case than that laid down in the case of Emerson v. Taylor. The The defendant's upland borders on the Piscataqua river. Northwesterly of defend PORTSMOUTH HARBOR. LAND & HOTEL ant's upland, the United States government CO. v. SWIFT. (Supreme Judicial Court of Maine. Feb. 24, 1912.) 1. NAVIGABLE WATERS (§ 36*) - FLATS BOUNDARIES. owns a tract of upland, and southerly and easterly of defendant's upland is a tract owned by the plaintiff; a part being upland and a part flats. The plaintiff's upland extends in the rear of the defendant's upland across the island. The flats on the river begin above the upland of the United States and extend by the upland of the plaintiff and defendant to Pocahontas Point. The situation of the land, river, flats, and ocean are shown on the plan, marked "A". Ownership of flats along a navigable river, as between adjoining upland owners, is properly determined by drawing a base line between the two corners of each lot, where they strike the bank, and extending from these corners parallel lines perpendicular to the base line, and if the line of the river is straight the |