Upon the Original consideration of this cause, no point having been made and- argued as to the character of this action, we treated the counts as being for the statutory penalty for cutting trees; but after considering the counts more carefully we find that they are quare clausum fregit.—Blackburn v. Baker, 7 Port. 284; Rogers v. Brooks, 105 Ala. 549, 17 South. 97. We adhere, however, to our former conclusion that the trial court erred in not allowing the amendments offered, as they were intended merely for the purpose of correcting the description of the subject-matter, so as to meet the plaintiff’s proof. — Section 5367 of the Code of 1907; -

*285The application for rehearing is overruled, the opinion is modified, the judgment of the circuit court is reversed, and the cause is remanded. •

Reversed and remanded.