delivered the Opinion of the Court.
Stewart sued Jewell, and declared against him, for trespass in shooting a horse in his inclosure, which is alleged not to have been such as is required by the act of assembly in such cases provided.
At the trial, which was had upon pleadings which allowed every defence to the merits, evidence was introduced by both parties; that on the part of the plaintiff, conducing to prove the allegations of his declaration, and that on the part of the defendant, conducing to prove that he was not guilty.
After the evidence of both parties was through, the court instructed the jury, that they must find for’the defendant, unless they should find from the evidence, that the plaintiff’s horse was within the defendant’s inclosure at the time the defendant committed the trespass mentioned in the declaration by shooting the horse.
Under the instruction, the jury found a verdit for the defendant, and judgment was thereupon render»! ed against the plaintiff.
*111_ iq ¡n an ac_ tion under the jl“tuate’j°ra beastfinflicted by thedeEfficient in”" closures, the plaintiff fail cas^withfn1 the act, he “«y yet re?voer fortlle common, law.
Hanson, for plaintiff.
The question is, as to the correctness of the instruction which was given to the jury. Without proving that the horse was shot by the defendant within liis enclosure, the plaintiff could not, we apprebend, be entitled to recover the double damages given by the act of assembly for such trespasses, and if the instruction had only gone, to inform the jury, that without proof of the horse being shot by the defendant, within his enclosure,' double damages could not be recovered, we should have had no difficulty in sustaining the judgment. But. if in fact, the horse was shot by the defendant, though not within his enclosure at the time, he was undoubtedly guilty of a trespass, for which the plaintiff has not only a right to maintain an action, but fer which, if proved, he was, in this action, entitled to recover damages commensurate to the injury, notwithstanding he has declared as for a trespass committed within the inclosurc of the defendant.
The instruction was, therefore, erroneously given to the jury. The j'udgment must, consequently be reversed with cost, the cause remanded to the court ’ below, and further proceeding there had, not inconsistent with this opinion.