The declaration, in this case, was for an alleged breaking and entering the plaintiff’s close; the action may be properly termed one of trespass quare clausum fregit.
As first drawn, the writ commanded the defendant to answer unto the plaintiff in a "plea of the case.” The defendant, believing the plaintiff had misconceived his form of action, and that the command should have been to answer in a plea of trespass quare clausum, filed a special demurrer to the plaintiff’s writ. The court overruled the demurrer, and we think properly.
It will be noticed that the declaration in itself was correct, and alleged a breaking and entering the plaintiff’s close. The demurrer related not to any matter of substance, but mex*ely to form ; and this is not available to the defendant even upon special dexnurrer. The statute has abolished the distinction between actions of trespass and trespass on the case. This relates to the distinction in form only. In cases where the distinction is i'oally ■of substance, the provision of statute is inapplicable. Sawyer v. Goodwin, 34 Maine, 419; Kelly v. Bragg, 76 Maine, 207.
Nor was there error in allowing the axnendxnent after the demurrer was disposed of. If the amendment was regarded as proper, it was allowable under R. S., c. 82, § 10, in the discretion of the presiding judge; and on such terms as he saw fit to impose, or without any, as justice might require. Kelly v. Bragg, supra, which is decisive of this case. To the exercise
By this amendment, no new cause of action was introduced, as was the case in Farmer v. Portland, 63 Maine, 46, cited by the counsel for the defendant. It was an amendment in matter of form only, and clearly such as was contemplated by the statute relating to amendments, "when the person and case can be rightly understood.” Harvey v. Cutts, 51 Maine, 607.
Exceptions overruled.