The gist of the action of trespass quare clausum is the breaking the plaintiffs close, and the taking the wood and timber is a matter in aggravation of damages; while the gist of the action of trespass de bonis asportatis is the taking and carrying away the wood and timber. Substituting the one declaration for the other does not change the cause of action; — but I think the plaintiff cannot declare by his amendment against the defendant for taking and carrying away any other wood and timber than that which he has already declared for as matter of aggravation; and if, under a general declaration, he should undertake to give in evidence the taking and carrying away of other wood and timber, — i. e., wood and timber not on lot No. 7, — I think the evidence must be rejected.
It is clear that the plaintiff cannot, under cover of an amendment in general terms, introduce into his writ a new and different cause of action. *Page 42
The original declaration and amendment are made part of the case; but they have not been printed, and neither has been furnished to the court. It is easy to understand how a general count for taking and carrying away wood and timber might just as well apply to such things taken from any other lot as well as from lot No. 7. But the plaintiff cannot, under cover of an amendment in general terms, go, for any other wood and timber than that mentioned, by way of aggravation of damages in his original declaration.