¶1Dissenting opinion by
¶2I am unable to concur in the decision by the majority of the court. I think an inspection of the two *192counts renders it manifest, that the subject matter in controversy is the same in both counts, — the wrongful allowing the plaintiff’s cattle to enter his tilled fields and do damage there, either by wilfully opening and leaving open the gate across the pent road, when the defendant had no lawful occasion to pass through the gate, as alleged in substance in the first count; or having lawful occasion to pass through the gate, and so lawfully opening and then wilfully and wrongfully leaving said gate open. In either case, the plaintiff’s tilled fields were exposed to, and damaged by, his cattle from the adjoining pasture. That more special damages are set forth in the second count than in the first does not make the cause of action counted upon different. The pleader being in doubt in regard to his proof, whether it would show a wrongful opening of the gate, or only a wilful and unlawful leaving of the gate open, used the two counts, that his declaration might be adapted to and be supported by his proof. The justice jurisdiction act — s. 821 R. L. — in force, when in 1856 the act — s. 912 R. L. — allowing counts in case to be joined with counts in trespass, when for the same cause of action, was passed, gives a justice jurisdiction of actions of trespass upon the freehold when the damages demanded do not exceed twenty dollars. To the extent that the title to land might be involved in actions of trespass on the freehold where the sum demanded does not exceed twenty dollars, the act confers jurisdiction upon a justice of the peace to try actions involving the title to land. The act of 1856 is not restricted by its language to actions in the County Court, but is broad enough to authorize the joining of such counts in whatever jurisdiction the cause might be pending. It is of a highly remedial nature, intended to avoid the difficulty, often expei’ienced by expert pleaders, in adapting the count or form of action to the proof, and so to avoid a failure of justice through a technicality in pleading. I think the act of 1856 was intended, and should apply as broadly to causes over which s. 821 *193confers jurisdiction upon a justice of the peace, as to actions in the County Court. In my judgment this construction of the act of 1856 does not enlarge the jurisdiction of the justice of the peace, but simply gives him the right to try in a count on the case if his proof should fail to show a direct injury or trespass, what he could before try in a count in trespass if the proof showed the injury to be direct, instead of consequential; that is, to try a case that might involve the title to land in a count in case, wherever he could try it in a count in trespass. In my judgment the decision unwarrantably limits the beneficial scope of the act of 1850. I should reverse the judgment of the County Court, and hold that the counts were properly joined.