#### The People, *ex relatione*Proctor *vs.*Albany C. P.

*AIJ3ANY,*

*June, 1838.*

Where the defendant has pleaded title to a declaration of trespass quare clausum fregit in a justice’s court, the plaintiff, if he prosecutes the suit in the C. F., may there declare particularly describing the close, although he did not do so in the justice’s court.

If it be made to appear that the plaintiff, in his declaration in the C. P., proceeds for a trespass upon premises other than those on which he alleged before the justice the trespass was committed, or if the defendant has been misled, the C. P. may, on either of those grounds, grant relief, but not for the alleged departure in pleading.

Motion for mandamus. McCormick sued the relator before a justice of the peace, and declared in trespass for breaking and entering his close situate in the town of Bethlehem. The declaration was general, and contained *no*
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      *description of the close.*The defendant pleaded title ; McCormick thereupon brought an action in the common pleas, and 1 in his declaration *described particularly the close*in the_ trespass was alleged to have been committed. Proctor moved the C. P. to set aside the declaration on the ground of *departure*from the declaration before the justice. The motion was denied, and he now asks a *mandamus*to the C. P. requiring them to grant his application.

*R. W- Peckham*make the motion *ex parte.*

*By the Court,*

Bronson, J.

When the defendant pleads title before the justice, and the plaintiff attempts to continue the proceeding, he must declare in the common pleas “ for the same cause of action whereon he relied before the justice.” 2 R. S. 237, § 64. There is no proof that the cause of action on which the plaintiff relied was not the same in both courts. The declaration in the C. P. differs in *form*from that before the justice, and this must often be the case or the pleading would be had on demurrer. It also differs from the original declaration in setting out the abuttals or a particular description or the close, but it does not follow that the trespass or cause of action on which the plaintiff relies is not the same now as it was before the justice. Whether the same or not, is a question which should be settled on motion. *Tuthill*v. *Clark,*11 Wendell, 642, and 12 id. 207.

It is said that the plaintiff should have new assigned before the justice. Conceding that he might have done so, yet he ought not to lose his action because the pleadings there, were less formal than is usual in courts of record. Should he go to" trial on the pleadings as they stood before the justice, it will be enough for the defendant to prove that he had title to any close in the town of Bethlehem ; and then there must be a verdict for the defendant, although there has actually been a trespass on the plaintiff’s land, and although the defendant knew what particular close was intended by the plaintiff. To avoid this injustice, the plaintiff, in declaring in the common pleas, has given a particular description of the close; and I think he should be allowed *125in his plea. As he neglected to do so, and the plaintiff did not new assign, the parties ought to be allowed to put their pleadings in such form in the C. P. as will best carry out the provisions of the statute. 12 Wendell, 207. The court of C. P. was right in refusing to set aside the declaration. to do so, unless it appear that the cause of action is different from that on which he relied at first, or that the defendant has been misled. The defendant might. have required a particular description of the p'aintiff's close before putting

Motion denied.