
    Polk vs. Lane.
    The act of 1807, ch. 2, requires that all parts of the enclosure of s held trespassed upon, shall be at least five feet high; and a plaintiff in a suit utider the act to recover damages must show that fact to he so, or he cannot recover.
    If any part of the enclosure trespassed upon be under a fence less than five feet high, although the proof shows the cattle had passed at a part of the fence five feet high, the plaintiff cannot recover, and the law will presume that the cattle were first tempted to break into the enclosure by reason of the lowness of other parts of the fence.
    This was an appeal in the'nature of a writ of error from the circuit court of Hardeman county.
    This suit was brought by Lane, defendant in error, against Polk, plaintiff in error, under the act of Assembly of 1807, ch. 2, for a trespass committed by the horses and mules of the former, upon the cleared and cultivated ground of the latter. Upon complaint made of the above trespass, before a justice of the peace, pursuant to the act, he caused two freeholders to be summoned, to view and examine on oath, together with himself, whether said defendant Lane’s fence was sufficient or not, and what damage was sustained by said trespass. This view and examination was had, and certificate made under their hands and seals, that “the fence js a lawful one, and the said Thomas Lane has sustained damage to the amount of $39, in consequence of repeated trespasses committed by the horses and mules of William Polk.”
    In the circuit court this case was submitted to a jury, who found a verdict in favor of Lane, and assessed his damages to $39, and judgment was rendered thereon for said sum and costs.
    Upon the trial in the circuit court, a bill of exceptions was taken, which showed that the enclosure said to have been trespassed upon, was a large plantation of 2 or 300 acres of cleared land, rented to divers tenants, one of whom was the defendant in error, who had a portion of it i A next to the woods, the out side fence of the same. JLne witnesses proved there was a straight string of fence .on the out side, and that there were various cross fences, and that Lane’s oat patch was next the outside fence. That opposite the oat patch the outward fence was measured by divers persons, and in divers places, from 150 to 200 yards, and that the fence was generally five feet high,- but was in several places not five feet high, lacking at different places from one to three inches; and that on the same fence opposite the oat patch, there were several hog holes near the ground, large enough for the entrance of hogs. That the rails opposite the oat patch were of a light character, rather old and rotten, .but the fences were as good as the ordinary fences of the country, perhaps better. Witnesses stated that after getting by the fence on the out side of the oat patch in the same string, that generally the fence ranged from 31-2 to 4 feet, and was not so good as that opposite to the oat patch. All the witnesses said that the fence opposite the oat patch was as good as the ordinary fences of the country, and that the mules always went in at that place. The evidence exhibits many other particulars about the out side fence of the large plantation, and cross fences, showing their bad condition, but their import does_ not vary the aspect of the case. The proof shows, that on two sides of the field trespassed upon, the fence was not five feet high, viz: next the cotton patch and on the opposite side of the field from the string of fence where the mules passed.
    The circuit court charged the jury, that if the fence on the outside of the oat patch was an average fence five feet high, and made of such materials as would turn stock of ordinary habits of fence breaking, that it would be a .lawful fence, although there might be a few places in it one, two or three inches below the height of five feet; that the fence on the other part of the farm being not such as the law requires, would be no excuse for the defendant Polk, unless the mules and stock of defendant, that trespassed, had gone into plaintiff’s oats in that direction. Upon which the jury found a verdict for the plaintiff, Lane.. Defendant, Polk, moved for a new trial, which was overruled by the court, and exception taken thereto.
    
      W. Stoddert and W. Humphreys, for plaintiff in error.
    
      V. D. Barry, for defendant in error.
   Whyte, J.

The errors assigned are, in the charge of the court, in stating to the jury what consiitutes a lawful fence. In the present case the act of Assembly has stated this, and it cannot be varied from, altered or in any manner changed by the statement of a court. The contrary to this position, would be to legislate, to impose on the case a substitute for the statute itself, a power not delegated to a court, and an assumption beyond its province. The act says, “every planter shall make a sufficient fence about his cleared land in cultivation', at least five feet high; the substitute made by the statement of the court in its charge, is a fence, on an average, five feet high. What is to be understood on an average applied in this statement of the charge? Is it that the aggregate of the height of each pannel of the fence, when divided by the number of pannels contained therein; shall produce the result of five feet? This is not the letter of the statute, nor can it be its meaning. There is no ambiguity in the expression, “a fence at least five feet high;” it means that the fence should be of that height throughout; the words “at least, ” are emphatical, and expressive of its minimum, and is applied to it as a whole, and to every part. But to what would such a relaxed construction of the statute as the charge gives lead to, if deficiences of one, two, or three inches in places or parts of the fence, are not to be considered as deviations from the statute? Another court on the principle of averaging, m its discretion and judgment, may think double, or treble, or quadruple even of these partial deficits, a right construction, and where will it end? The principle of average will support the departure from the statute, and may be carried to a considerable extent; the sure consequence of which will be to divest, in a great degree, the-statute of its utilityr and obstruct its policy by lessening its beneficial influence on society, and prostrating its great object, as declared by its preamble, “the peace and harmony of neighborhoods,” I am'of opinion, therefore, that the verdict and judgment of the circuit court should be set aside, and a new trial had therein.

Catron, Ch. J.

delivered the opinion of himself and Green, J. It will be remarked, (without giving any opinion on the matter examined by Judge Whyte,) that the fence may have been a lawful fence opposite the oat patch, but a few rods further on, and opposite the cotton patch, it-was only three and a. half feet high. And the cross fence between the cotton and oats, 'down to the ground, was useless. This amounted to no fence recognized by law or good husbandry.

It is proved the mules were always seen to jump over the fence opposite the oat patch, and that they ranged on it from the time it was put into the ground.

The legislature intended that all parts of the enclosure of the field trespassed upon, should be at least five feet high. And why? Because, when stock once break good pasturage by reason of a fence 3 1-2 feet high, thq‘ temptation causes them to disregard the lawful part of the fence, and ruins their habits. To prove they were seen to get over the fence where it was five feet high) does not prove but that they were first tempted to tres| pass by getting into the enclosure where there was no ob| struction; for so, an old and rotten fence three and a half^ feet high, must be deemed by every farmer, who honestly,. expects to guard against obstructions by his neighbor’s horses and mules. When, where and how -the mules trespassed, is not the question mainly presented; it is, had the plaintiff his field enclosed by a fence at least 'five feet high? This is not pretended, and it is expressly proved that, on two sides, there was no fence at all, to wit, next the cotton patch, and on the- opposite side of the plantation next to the string of fence referred to. This may be a hard case; but renters, as others, must see they have their fields lawfully fenced; and 'if they are not, either not rent, or contract for the making of fences.

We think that part of the charge which says, “that the fence on other parts of the farm being not such as tire law requires, would be no excuse for the defendant, unless the mules had gone into plaintiff’s oats in that direction,” is clearly erroneous. The jury were not permitted to look to any part of the fence about the field but the line on one side.

Judgment reversed.  