TANKERSLY vs. WEDGWORTH et al., 22 Ala. 677

CHILTON, C. J. This was an action of trespass, brought by the defendants in error against Tankersly, to recover damages for injury done to their hogs. The declaration is in the usual form, and not under the statute which makes provision for double damages to be recovered against any one who shall injure stock within his inclosure, without having a lawful fence. The proof in the cause tended to show a state of facts which would have justified a proceeding under the statute; and the question was, whether double damages could be recovered under this declaration.

The court was of opinion, that the failure of the plaintiffs below to count on the statute, interposed no objection to recover under it, and so charged the jury. This charge was erroneous. The question involved has been twice decided by this court; see Woodward v. Purdy, 20 Ala. 379; and Blackburn v. Baker, 7 Porter 288. These decisions, which are undoubtedly correct, are decisive of the case before us adversely to the ruling of the Circuit Court. Let the judgment be reversed, and the cause remanded.