
    Baker against Dumbolton.
    NEW YORK,
    May, 1813.
    D. sued B. before a justice by a sum.moiis in trespass on the ease, and declared for a trespass, for breaking his close by the hogs of the defendant,and also for a pound breach or rescous* It was held that the two causes of action might be joined in the same declaration.
    
      It seems that a variance between the summons and the declaration, as to the action, is not fatal, the pleadings and proceedings before justices, in matters of form, being regarded with great liberality.
    IN ERROR, on certiorari, from a justice’s court. Dumbolton sued Baker, before the justice, by summons, in trespass on the case. The plaintiff declared, for that the hogs of the defendant had broken into the enclosure of the plaintiff, on the 17th June, 1812, and destroyed his corn, &c. and also, for that the defendant,' on that day, had broken open the pound, &c.r
    The defendant made several objections to the plaintiff’s demand and proceeding, which, by consent of the parties, were postponed to the trial, when the justice consented to take into consideration any objections the defendant might urge. A venire Was issued, and the cause tried by a jury, who found a verdict for the plaintiff for 5 dollars.
    It appeared that the summons was against B. and his wife; but it was not served upon her, nor did she appear, and a nolle prosequi as to her was entered by the plaintiff, and she was not named in the subsequent proceedings in the cause. On the trial the defendant objected to the plaintiff’s proceeding against him alone, without his wife; and the objection was overruled. The defendant then objected to the variance between the action stated in the summons, and the plaintiff’s declaration, the one being trespass on the case, and the other trespass, which objection was also overruled by the justice. The trespass by the hogs of the defendant was proved; and that the plaintiff was pound-master, and impounded the hogs in his barn-yard, and that the wife of the defendant came and took them out. The damages were proved to the amount of 6 dollars and 50 cents. The jury found a verdict for 5 dollars, stating, at the same time, that the plaintiff ought to have treble damages, but the plaintiff contended, and the justice considered it to be a verdict for single damages only, and gave judgment accordingly. Numerous errors were assigned by the plaintiff in error, chiefly as to form.
   Per Curiam.

There was no well founded objection to joining a count for the trespass damage feasant with the count for the pound breach or rescous ; and it is usual to join them. (2 Chitty’s Pl. 297. n.) If the variance between the summons and declaration wrould have been fatal, (which we do not concede,) because the one was trespass on the case, and the other trespass, yet the objection was waived by the defendant, when he consented to postpone it until the jury were sworn on the trial. The plaintiff also had a right to discontinue the action against the wife, and to proceed against the husband alone. The trespass and'the rescue were fully proved, and the jury assessed single damages. The merits of the cause were fairly tried, and,are entirely in conformity with the verdict. The objections made by the defendant were frivolous in their nature, and went merely to matters of form, which are always liberally regarded in proceedings before a justice.

The judgment below must be affirmed.

Judgment affirmed.  