In cases of tbe one under consideration, in which no pleadings are made up in tbe court below, it is often very difficult to ascertain bow they were regarded in tbat court, in respect to tbe nature or form of action, and what rules were there applied to them. This case is surrounded with perplexities of tbat kind. Whether it was treated as trespass or case, except by tbe affirmative charge of tbe court, tbe record furnishes no means of determining. From tbat, however, we suppose it was regarded as an action on tbe case, for tbe recovery of double damages, under tbe statute, (Olay’s Dig. 241 § 3;) and as such we shall treat it.
This statute is highly penal in its character, and as such must be strictly construed. ' It provides: “If any person injured for want of sufficient fence, shall hurt, wound, lame, kill or destroy, or shall cause to be hurt, wounded, lamed, killed or destroyed, by shooting, bunting with dogs, or otherwise, any of tbe kind or breed of horses, mules, cattle, sheep, bogs, &c., be or she so offending, shall satisfy and pay tbe owner of tbe beast so hurt, wounded, lamed, killed or destroyed, double damages, with costs, recoverable as aforesaid.” By this act, tbe recovery was to be bad only in a court of record; but, we presume, tbat, under the act of 1846, (Clay’s Dig. 358 § 3;) when tbe damages sought to be recovered do not exceed twenty dollars, tbe proceedings may be bad before a justice of tbe peace.
To enable a party to recover under this act, it must be shown tbat tbe fence of tbe defendant is insufficient, and tbat tbe injury to tbe stock of tbe plaintiff arose out of some act of tbe defendant, done, or commanded, or directed to be done by him. If this be not shown, be cannot be said, in tbe *571meaning of the statute, to cause it to be done. The mere negligence of a servant, acting in the ordinary business of the master, although the damage to the stock of the plaintiff actually results from such negligence, will not authorize the recovery. It may often happen that an action on the case, at common law, would well lie, to recover damages for the injury so done, when a proceeding under the statute would not. Lindsey v. Griffin, at the present term.
The facts of the present case do not justify a recovery under the statute, for they do not establish such a connection between the defendant and the injury done to the stock of the plaintiff, as would justify us in'saying, in the sense of the statute, that he either did it, or caused it to be done.
We have already decided under this act, that to entitle a party to recover under it, in an action in the Circuit Court, he must frame his pleadings in reference to it, (Tankersly v. Wedgworth et al., at the present term;) and it would follow, that, in cases which require no written pleadings, the proof of the plaintiff must clearly bring him within its provisions, or he will not be allowed the benefit of them.
At common law, where an injury to another arises from carelessness in keeping domestic animals, which are not necessarily inclined to do mischief, such as dogs, horses, &c., no recovery can be had against the owner, for an injury done by them, unless it is averred and proved that he knew their vicious propensities, and so- carelessly and negligently kept them, that injury resulted to the plaintiff therefrom. Burke v. Dyson, 4 Camp. 198; Smith v. Pelah, 2 Strange 1263; Durden v. Barnett & Harris, 7 Ala. Rep. 169.
We think, therefore, that-the charges requested by the defendant in the court below, and refused by the court, should have been given; and that the charge given to the jury is erroneous.
Let the judgment be reversed, and the cause remanded.