Jean v. Sandiford , 39 Ala. 317 ( 1864 )

STONE, J.

The complaint in this case, after it was amended, was sufficient. It describes the land as situated in Mobile county, and we tbink this made it good. — See Code, §§ 1099 et seq.

[2.] We do not tbink interest should bave been allowed on the damages assessed by the jury. These damages are in the nature of a penalty fixed by statute, without any reference to fault or neglect on the part of the owner of the cattle committing the trespass. The penalty for the second, or any subsequent trespass, is double damages. If we allow interest on the first recovery, by the same rule we must allow it on each subsequent recovery. This would be an enlargement of the terms of the statute, which we feel unwilling to make. — See Code, § 1192. The cases in which we have heretofore held that the plaintiff was entitled to interest, are unlike this in principle.—See Stoudenmire v. Williamson, 29 Ala. 558-569; Caldwell v. Sawyer, 30 Ala. 283; Rowland, v. Shelton, 25 Ala. 217, and authorities cited in each case. The verdict in this case ascertains the amount of the plaintiff’s damages. What it affirms in regard to interest, should have been regarded as surplusage by the city court.

13.J The error of the court below consists in awarding judgment for interest, when none was due. Such errors are in their nature clerical, and do not furnish ground for the ordinary judgment of reversal in this court, unless the primary court, on having its attention directed to it, refuse to make the correction.—See Code, §§ 3034, 3037; Boyd v. Gilchrist, 15 Ala. 849-856; Gould v. Meyer, 36 Ala. 571; McLeod v. The State, 35 Ala. 398; Jackson v. Shipman, 28 Ala. 493; Warfield v. State, 34 Ala. 261; Rambo v. Wyatt, 32 Ala. 368; Campbell v. May, 31 Ala. 570; Jones v. Brooks, 30 Ala. 590; Savage v. Walshe, 26 Ala. 633; Drane v. King, 21 Ala. 558; Witherington v. Brantley, 18 Ala. 200; Ivey v. McQueen, 17 Ala. 411; Crawford v. Whittlesey, 8 Ala. 807; McBarnett v. Breed, 6 Ala. 476; Oliver v. Hearne, 4 Ala. 271; Weatherford v. Weatherford, 8 Por. 171.

Having before us tbe data upon wbicb to make tbe proper correction, we will do so. Let tbe appellant pay tbe costs of tbe appeal.