The only question for our consideration is, whether the action of the court in refusing the above declaration of law was correct.

This is not a common law action of trespass. In this case no damages are asked; none are alleged. We .are clearly of the opinion that this action is for the penalty of five dollars, imposed by section 3922, Revised Statutes, which reads as follows:

“ If any person shall voluntarily throw down or open any doors, bars, gates or fences, and leave the same open or down, other than those that lead into his own inclosure, * * * he shall pay to the party injured the .sum of five dollars,” etc.

*596There is no evidence whatever, tending to show that the defendants left the fence down. But on the contrary the defendant, Sallee, testified that he put np the fence as he went in and ont. Under the statute it was incumbent upon the plaintiff to show that the defendants-left the fence down. On account of the total failure of such evidence, the court properly refused to find for plaintiff, and rendered judgment for defendants.

Judgment affirmed.