Friday, Per Curiam.-The judgment in this case is reversed, upon the authority of, and for the reasons given in, Lawrie December 15. v. The State, 5 Ind. R. 525, the question arising in the record of each case being the same. See, also, Lichtenstein v. The State, id. 162. The judgment is reversed with costs. Cause remanded, &c. R. A. Riley, N. B. Taylor, and J. Coburn, for the state. TEHAN and Others v. The State. APPEAL from the Lawrence Court of Common Pleas. Friday, December 15. Per Curiam.-The judgment in this case is reversed, for the reasons given in Spencer v. The State, 5 Ind. R. 41, and in Simington v. The State, id. 479, the questions arising in the record of each case being the same. G. G. Dunn, for the appellant. R. A. Riley, N. B. Taylor, and J. Coburn, for the state. THE STATE on the relation of SPRAGUE and Others v. CARTER. A justice of the peace, under the R. S. 1843, could render a valid judgment against a defendant sued out of his proper township, if such defendant, having been served with process, did not appear and plead to the jurisdiction. Nov. Term, In a suit on the bond of a justice of the peace for his refusal to account for 1854. THE STATE V. CARTER. Friday, money collected, it appeared that he had officially received a note for collection from the relators, had collected it, and refused to account for the proceeds. Held, that it must be presumed, prima facie, against him and his sureties, that he had the right to give the receipt officially, and that his act was legal. ERROR to the Hendricks Circuit Court. HOVEY, J.-Debt on a justice's bond against James Dugan and Carter. Dugan was not found. There are several breaches in the declaration, to some of which demurrers were filed and sustained; but as the issues upon which the case was tried fully embrace the subject-matter in controversy, it is deemed useless to pass any opinion upon the pleadings. The facts, as shown by the bill of exceptions, are as follows: Dugan, as justice of the peace of Centre township, in Hendricks county, received a note of A. W. Sprague & Co., for which he executed and delivered the following receipt: "Received of A. W. Sprague & Co. a note drawn by Benjamin Davis for 22 dollars and 50 cents, dated May 20th, 1845, at ten days' sight. Danville, February 26th, 1846. James Dugan, J. P." Dugan collected the note in 1846, without suit. It is admitted that Davis was not at any time a resident of Centre township, but that he resided in Brown township, in said county. Sprague & Co. demanded the amount collected, but Dugan failed to pay. There is also included in the declaration a claim of 3 dollars and 19 cents, about which there is no controversy, and for which judgment was rendered for the plaintiff below. The only question is, whether Carter, as surety on the bond, is liable for the amount of the note collected? It is contended that the justice of the peace would have had no jurisdiction in a suit on the note, as the payor did not reside in Centre township. This position can not be sustained. The 4th section, R. S. 1843, p. 863, does not necessarily destroy the jurisdiction of justices of the peace in cases like this. The 1854. CORY V. SILCOX. defendant is not compelled to answer out of his township Nov. Term, except in certain cases specified in that section; but unless he appear and plead to the jurisdiction after being duly served with process, the justice would have the power to render judgment against him. As Dugan receipted for the note as justice of the peace, it will be presumed against him and his surety that he had the power to give the receipt as such, and that his act was legal, until the contrary is shown. There may have been no justice of the peace in Brown township capable of trying the cause, and, if not, he would have had jurisdiction. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. C. C. Nave, for the state. J. S. Harvey and J. M. Gregg, for the defendant. CORY V. SILCOX. The plaintiff, in a suit for the backing of water by a dam upon his machinery, &c., was allowed to read extracts from "Evans' Millwright Guide," in his closing argument to the jury, although the defendant objected. The Court instructed the jury that extracts read from a scientific work were not even prima facie of authority, but like the argument of counsel, or other thing adduced to illustrate, they might be satisfactory to the jury or they might not. Held, that there was no error. In a cause where several issues of fact were raised by the pleadings, the Court, in its charge to the jury, stated that there were but two questions, specifying them, for their consideration, the other facts not being controverted. The evidence not having been set out in the record, held, that the presumption was that the parties had narrowed the issue to the questions stated by the Court. Where an individual constructs a dam so as to flow back water upon the land of another, it is a presumption of law that the act is a damage, and no special damage need be proved. This presumption applies, in this state, as well to mill-dams as others. An obstruction caused by the back flowage from a dam, need not be continuous to authorize an action. 1854. Nov. Term, Case by A. against B. for erecting a dam on Blue river below the plaintiff's mills, whereby the water was backed on his machinery. Plea, the general issue. On the trial (in March, 1850,) C., who, prior to the commencement of the suit, had no interest in the mills, but had since acquired an interest in the profits by way of compensation for carrying on the business, was offered as a witness. Held, that he was incompetent. CORY V. SILCOX. Friday, APPEAL from the Shelby Circuit Court. HOVEY, J.-Case by Silcox against Cory. Plea, the general issue. Trial by jury, and verdict and judgment for the plaintiff. The declaration alleges, that Cory erected a milldam on Blue river, below Silcox's mills, whereby the water was backed on Silcox's machinery, &c. A similar action between the same parties, from the Johnson Circuit Court, was decided at the present term. 5 Ind. R. 370. The record contains several bills of exceptions, and four points are made in argument by the counsel for the appellants. 1. Silcox's counsel, in the closing argument to the jury, read from "Evans' Millwright Guide." This was objected to on the part of Cory, 1st, because there was no evidence showing that it was a work of good repute; 2dly, because it was proved that the work was not in good standing and repute; 3dly, that even if the evidence showed it to be a work of good repute, it could not be read in evidence. There is nothing in these objections, especially as the Court charged the jury, that "the extracts read from a scientific work, are not of authority conclusively or prima facie. Like argument of counsel, or any other thing adduced to illustrate, they may be satisfactory to the jury or they may not." Reason is neither more nor less than reason, because it happens to be read from a book; and we think we would be adopting a very difficult rule to enforce, if we should attempt to compel counsel to use their own arguments for every position they might assume. 2. The Court, in delivering the charge to the jury, gave the following instructions: "There are but two questions to which your inquiry will be directed, the other facts not being controverted. The first of these questions is, whether between the first day of 1854. CORY V. SILCOX. January, 1849, and the first day of September, 1849, the Nov. Term, dam of the defendant occasioned the water of Blue river to so rise as to retard the operation of the plaintiff's mill in any degree for said time, or any part thereof, even for a day or hour. If so, the plaintiff is entitled to a verdict for damages to the amount of the injury suffered on that account. The second question is, whether the said dam of defendant, between said dates, caused the water of said river to so rise as to overflow the plaintiff's land any perceptible distance, so as to increase the depth of said river, where the plaintiff owned the bed thereof, for all or any day of said time. If so, the plaintiff is entitled to a verdict for the damages done; and if the damage is so small that it can not be estimated, the plaintiff is entitled to technical or nominal damages." Counsel for the appellant insist that these instructions are erroneous, first, because the pleadings present more than two questions for the consideration of the jury. As all of the evidence is not in the record, we can not decide what facts were controverted on the trial, but must presume, as the record does not show the contrary, that the parties narrowed the issues by agreement to the two questions propounded to the jury by the Court. It is objected, also, that the Court erred in charging the jury that they might assess nominal damages; and it is contended that there must be actual and perceptible damages to sustain actions of this character. Without particularly reviewing the various cases cited which bear upon this question, we will simply refer to several elementary works of standing, where the cases may be found, being satisfied that their conclusions are sustained by the authorities. Chancellor Kent, in the 3d vol. of his Commentaries, p. 439, says: "No proprietor has a right to use the water of a running stream to the prejudice of other proprietors above or below him, unless he has a prior right to divert it or a title to some exclusive enjoyment. Without the consent of the adjoining proprietors, he can not divert or diminish the quantity of water which would otherwise descend to the proprietors below; nor throw the water |