delivered the opinion of the court.
This was a petitionbrouglitin Marion circuit court by Phillips, against Smoot, for voluntarily thi owing down and leaving down a fence that did not lead into the defendant’s enclosure, whereby the cattle of the petitioner escaped, and he was put to trouble and expense in getting them again. The petition is founded on a breach of the statute of this State concerning “trespass,” which declares, that if any person shall voluntarily throw down any fence, &c., and leave the same down, not leading into his own enclosure, he shall pay to the party injured the sum-of five dollars and double the- amount of damages the party shall sustain by reason of such fence having been thrown down: Digest of 1845,. page 1069.
The defendant filed his answer, denying that.the fence he threw down was in the possession of the plaintiff, and stating that the fence was put across the road he usually traveled to town; arid that the petitioner had no cattle in the enclosure when he threw the fence down.
The jury found for the plaintiff’, and assessed the damages to thirteen dollars and thirty-three sent?, single damages. The court therefore rendered judgment for the sum of five dollars, the statutory penalty, and for twenty-six dollars and sixty-six cents double damages. Motions were made in arrest of judgment and for a new trial, which were overruled, and the defendant brings the case to this court by appeal.
In looking into the bill of exceptions, we find some instructions asked *600for and refused, aad others given. It is deemed unnecessary to notice those refused, for the instructions given put the case fairly before the jury, and their verdict,, warranted by the evidence will not be disturbed.
Taking the facts set forth in the answer in this case as fully proved, they will not amount to a defence sufficient to bar the plaiatifPs action.
The judgment below is affirmed,
the other judges concurring.