There is an obvious difficulty in carrying- into effect the provision, in the jurisdiction act, (St. 1840, c. 87,) that the supreme judicial court shall have original and exclusive jurisdiction of all writs of entry, “ except for the foreclosure of mortgages.” The difficulty arises from the Rev. Sts. c. 107, § 3, which provide that “ the mortgagee, in an action for possession, may declare on his own seizin, as in a writ of entry, without mentioning the deed of conveyance, or the condition or defeasance thereof,” or stating his title as mortgagee. Of course, it cannot be determined by the writ, whether the suit is brought for the foreclosure of the mortgage. Even when the demandant’s only title is a mortgage, his suit may be brought befóte breach of the condition, or against a stranger having no right to redeem; and then it is not a suit for the foreclosure of a mortgage. It depends on the case as disclosed by the proof, and not on the form of the writ. Ingalls v. Richardson, 3 Met. 340.
From this view, it is manifest that there are cases in which the court of common pleas has jurisdiction, and in which the count is general, as in the present case. It could not be *302known, until further proceedings, that this was not such a case. The tenant was therefore rightly summoned, and hound to appear and answer. The court had jurisdiction of the parties and the subject matter. The person and case could be rightly understood; Rev. Sts. c. 100, § 21; and therefore the court had full authority to allow an amendment. Bell v. Austin, 13 Pick. 93.
Whether the demandant might not have proceeded, without an amendment, it is not necessary to decide. On principle, it would seem that he might; because when, in the progress of the suit, he should come to show his title, it would appear to be a suit for the foreclosure of a mortgage. But the amend- ° . ment, being rightfully allowed, puts the question beyond doubt.
Exceptions overruled.