
    *Jesse Cuminge versus Samuel Rawson.
    In trespass quare clausum, fregit, commenced before a justice of the peace, and carried to the Common Pleas, upon the defendant’s pleading title in himself, the plaintiff had leave to amend his declaration, by alleging any other torts in the same close, or by giving a more accurate description of the '•.lose.
    
      This was an action of trespass quare clausum fregit, originally commenced before a justice of the peace for the county of Oxfora. The trespass alleged was the breaking and entering the plaintiff’s close in Paris, being part of his farm adjoining that of the defendant, and throwing down ten rods of the plaintiff’s stone wall and five rods of his rail fence, and treading down his grass, &c.
    The defendant appeared before the justice, and pleaded the title of himself to the close in justification, whereupon the justice, pursuant to the statute  in such case provided, ordered the defendant to recognize to the plaintiff to enter the action at the then next term of the Court of Common Pleas for said county. The defend ant accordingly entered the action; and, after a continuance, the plaintiff, having obtained leave to amend his declaration, offered a new count, which contained a more particular description of the close in which the trespass was originally alleged to have been committed, but sets forth a supposed different trespass, viz. the erecting of twenty rods of stone wall thereon, but on the same day alleged in the first declaration. This amendment, being objected to by the defendant’s counsel, was not admitted by the court.
    The action being brought by appeal to this Court, the parties agreed, that if the Court here were of opinion that the said amendment was inadmissible, the plaintiff should become nonsuit; otherwise the action should stand for trial.
    
      Hopkins, of counsel for the defendant,
    insisted that the amendment was properly rejected in the court below, because that court had jurisdiction of the action only in virtue of the recognizance entered into before the justice of the peace, upon the defendant’s plea of soil and freehold in the close. The amendment proposed substitutes another action, not within the scope and effect of the recognizance. * Had the parties gone to trial on [ * 441 ] the former declaration, the plaintiff never could have recovered. He ought not now to avoid the defence, by alleging an injury totally distinct from that, to which the defendant had been before called on to answer.
    
      Dana for the plaintiff.
    
      
       1783, e. 42.
    
   By the Court.

This being the same close, the defence will not be varied by the amendment offered. The plaintiff may make any amendments in his declaration, by alleging any torts in the same close, or by giving a more accurate description of the close.  