#### White *v.*Steele.

*Damage by Stock to Crops.*

(Decided May 16, 1912.

Rehearing denied June 19, 1912.

59 South. 713.)

1. *Animals; Damages lo Crops; Complaint.*— In an action for damages done to a crop by trespassing animals, the complaint should allege that the land upon which the crops were grown was enclosed by a lawful fence, or was situated in a district or territory, wherein stock was prohibited from running at large or could be taken up by the proprietor of unenclosed premises, on which they were found, and failing therein is subjeect to demurrer.

2. *Appeal anil Error; Record; Matters Presented.*— Where the record fails to set out the amended count and makes no other reference to such counts or the demurrers thereto except the mere recital in the minutes of the court, that the case was submitted on demurrer to the amended counts, and the counts sustained, the rulings of the court on demurrers to such counts cannot be reviewed on appeal.

Appear from Anniston City Court.

Heard before Hon. Thomas W. Coleman, Jr.

*533Action by L. D. Steele against James White. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

The complaint is as follows: “Plaintiff claims of the defendant the sum of $ 9.75, due by damage for five hogs, and one red, sandy hog, eating and destroying 214 bushels of corn at fl per bushel, 214 bushels of peas at fl per bushel, taking up and keeping said hogs for three days, taking up at 25 cents per head, $1.25, feeding three days at 25 cents per head per day, $3.75.” Demurrers raise the -question that for aught that appears in the complaint the hogs were lawfully at large, and for aught that appears the crops were not inclosed by a lawful fence, and because it does not appear that the land trespassed on was in a stock law district.

Tate *&*Walker, for appellant.

Unless enclosed by a lawful fence or situated within the district in which stock are prohibited from running at large, injury to crops by trespassing stock will not sustain an action.— *Willvite v. Bfeahmcm,*79 Ala. 400. The complaint was, therefore, subject to the demurrer interposed. Counsel discuss the question as to validity of the stock law sought to be established and bases the rehearing on the failure of the court to consider and decide that question, but in view of the opinion it is not deemed necessary to set it out.

J. H. Wilson, and W. J. Brook, for appellee. No brief reached the Reporter.

WALKER, P. J. —

Without regard to any question of its sufficiency in other respects, the original complaint in this case, which was filed on the institution of the suit before a justice of the peace, was subject to the de*534murrer interposed to it in the circuit court, which pointed out its failure to show that the land of the plaintiff upon which was the crop alleged to have been injured by the defendant’s hogs was inclosed by a lawful fence, or was within a district or territory in which hogs were prohibited, from running at large, or could be taken up by the proprietor of uninclosed premises on which they were found. The complaint failed to contain the averments requisite to show that the plaintiff was entitled to recover of the defendant for damages done by the latter’s hogs to the former’s crops, or for taking up and feeding the hogs. For aught that appears the land of the plaintiff was uninclosed and was in territory in which no statute had made it unlawful for hogs to run at *large.-*— Wilhite *v. Speakman,*79 Ala. 400; *Ryall v. Allen,*143 Ala. 222, 38 South. 851. The court erred in overruling the demurrer above mentioned.

The record does not set out any amendment to the complaint. The minutes of the proceedings of the court on the day of the trial of the issues of fact in the case contain this recital: “This cause being submitted to the court upon the defendant’s demurrers to the amended counts of the complaint, after being argued by counsel and understood by the court, it is ordered and adjudged by the court that said amended counts be and they are hereby sustained.” As the record does not set out any amended counts, and as the recital just quoted, which is the only reference in the minutes of the court to any such pleadings, does not show a disposition by the court of the demurrers to them, no ruling on a demurrer to any amended count is presented for review.

Reversed and remanded.