HORNSBY vs. CROSSLAND, 22 Ala. 625

LIGON, J. This action is not trespass guare clausum fregit, to recover damages for an injury done to tbe lands of tbe plaintiff; but is debt, under tbe statute, (Clay’s Dig. 581 § 2) to recover tbe value of trees cut and removed from tbe plaintiff’s premises by tbe defendant. It is not, then, an action of tort, and consequently cannot be brought under tbe influence of tbe decision of this court in tbe case of Ivey v. McQueen, 17 Ala. Rep. 408, and others cited in tbe brief of tbe plaintiff in error.

Tbe plaintiff bad tbe right to waive tbe tort, and sue in debt for tbe penalty given by tbe statute; and having elected to do so, be cannot complain when be is tried by tbe rules which regulate cases of appeals in such actions.

It is provided, (Clay’s Dig. 315 § 16,) by tbe act of 1824, that, “ whenever tbe defendant in any cause which shall have been decided by a justice of the peace, shall appeal from the judgment of such justice, and the appellate court shall render judgment in favor of the plaintiff, for a less sum than that recovered before such justice, such appellate court may enter judgment for the costs of such appeal, either against the plaintiff or defendant, according to the justice of the case.” This case is one of the class provided for in this statute; and as the court below is vested with discretionary power over the costs, and has exercised that discretion, we will not revise it.

Dill v. Phillips, 13 Ala. Rep. 350. Let the judgment be affirmed.