1854. Nov. Term, back upon the proprietor above, without a grant, or an uninterrupted enjoyment of twenty years, which is evidence of it." CORY V. SILCOX. In Angell on Water Courses, section 430, it is said: "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 to sustain the suit." And in section 428 he says: "Assuming that no actual damage is shown to arise from the diversion of a water-course, or of throwing water back upon the land above, an action may be maintained, on the ground that an undisturbed enjoyment or continuation of such acts, without the express consent of the owner of the land, would ripen into evidence of a right to do them." See, also, Sedgwick on Damages, pages 50, 136, 137. It is contended that these principles are not applicable to dams erected for milling purposes in this state, as mills have been especially favored by our legislation. It is true that one of the principal objects which our legislators have had in view in enacting our acts of ad quod damnum was to foster and build up manufacturing establishments; but there can be no doubt that they also intended to establish an easy and cheap mode of quieting and settling the conflicting and ever-varying questions which arise out of riparian interests. Had Cory resorted to those acts for the purpose of establishing his dam, much expense and litigation would, no doubt, have been avoided. As it is, he must abide by the principles of the common law. Again, it is said these instructions are erroneous because the Court instructed the jury that the plaintiff should recover, if the evidence showed that his machinery was retarded a day or an hour; and the position is assumed, that such obstructions must be proven to be continuous to enable him to recover. In cases like this, no such rule prevails. One hour's obstruction would furnish as complete a cause of action as any other longer period of time. There may be cases when dams have been legally established, where temporary obstructions, caused by floods or accidents, would furnish no cause of complaint, but we will not presume that such facts were proven, where the record is silent. 3. After Silcox's and two of Cory's witnesses had been examined, the Court, on motion of Silcox's attorney, ordered Cory's witnesses to be separated. This was a matter within the discretion of the Court, and the record does not show that that discretion was abused. 4. Aaron Brandenburgh was called as a witness on behalf of Silcox, and sworn in chief. Before his examination, the Court permitted Cory's counsel to examine him touching his interest in Silcox's mills. He answered, that previous to the commencement of this suit, he had no interest whatever in said mills, but that since the middle of September, 1849, he had been carrying on the business of said mills under a contract for part of the profits, which was to continue until May, 1851. Cory objected to his being examined in chief, and the objection was overruled. In the former cause we decided that Brandenburgh was incompetent, first, because, as shown by the facts in that case, he would be entitled to a part of the damages under his contract with Silcox; and, secondly, because the record of the judgment obtained would be admissible in a subsequent suit by Silcox and himself against Cory. The same interest in the record is presented in this cause. In the case of Blakemore and Booker v. The Glamorganshire Canal Company, 2 Cromp., Mees. & Roscoe R. 133, an action was brought for diverting water. On the trial, the record of a former suit between Blakemore and the company was offered in evidence, and it was objected that as Booker was not a party to that record, and as he had been examined as a witness on the former trial, the record was not admissible; but the Court, after reviewing the authorities, were unanimously of opinion that the record was properly admitted, on the ground that it was within the rule of verdicts being admissible between parties and privies. See 1 Greenleaf's Ev., sec. 536. As the record could be used by Brandenburgh and Silcox against Cory for obstructions Nov. Term, 1854. CORY V. SILCOX. 1854. Nov. Term, which might occur during Brandenburgh's term in the mills, he was incompetent, and should have been excluded, under the law as it existed at the time of the trial (1). See Cory v. Silcox, 5 Ind. R. 370. CRANE V. HOPKINS. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. J. Morrison, S. Major, W. J. Peaslee and T. A. Hendricks, for the appellant. H. O'Neal, T. D. Walpole and M. M. Ray, for the appellee. (1) The trial was in March, 1850. The R. S. 1852 provide that-"No person offered as a witness shall be excluded from giving evidence either in person or by deposition, in any judicial proceeding, by reason of incapacity from crime or interest. But this section shall not render competent a party to an action, or the person for whose use it is brought, or the husband or wife of any such party.” 2 R. S. 1852, p. 80, s. 238. Saturday, CRANE and Another, Executors, v. HOPKINS. Petition for the allowance of a claim against a testator's estate. Answer by Held, that the judgment for costs, as first entered, was erroneous. APPEAL from the St. Joseph Probate Court. This was a petition filed by the appellee in the St. Joseph Probate Court for the allowance of a claim against the estate of John Gilmore, deceased, of whose will the appellants are executors. There was an answer in denial of the validity of the claim, trial by jury, and verdict and judgment for the claimant. By the transcript of the record, as originally certified to the Supreme Court, it appeared that judgment had been rendered for costs against 1854. CRANE V. HOPKINS. the executors de bonis propriis, but by an amendment of Nov. Term, the record, afterwards certified to the Supreme Court in pursuance of a certiorari, it appeared that judgment had been rendered for the costs, to be levied out of the assets of the testator in their hands to be administered, if the defendants had so much, but if they had not so much in their hands, then the costs were to be levied of the appellants' own goods. STUART, J.—The only error assigned is that the decree is for costs de bonis propriis. In return to a certiorari, an amended transcript is filed, by which it appears that the costs are to be levied of the goods and chattels which were of A. B., deceased, in the hands of the executors to be administered, if they have so much in their hands; otherwise to be levied de bonis propriis. The judgment as it originally stood against the executors individually for costs, in the first instance, is error. 1 Saund. 335, note 10. As shown in the amended transcript, it conforms to the general rule as to costs against executors (1). Harrison v. Warner, 1 Blackf. 385. As the executors were not in fault, Hopkins, who obtained the erroneous decree, should pay the costs in this Court (2). Per Curiam.-The decree is affirmed, at the costs of the appellee. J. L. Jernegan, for the appellants. J. A. Liston, for the appellee. (1) "Whenever the action against an executor or administrator can only be supported against him in that character, and he pleads any plea which admits that he has acted as such (except a release to himself) the judgment against him must be that the plaintiff do recover the debt and costs, to be levied out of the assets of the testator, if the defendant have so much, but if not, then the costs out of the defendant's own goods: otherwise the judgment will be erroneous. Where he pleads a release to himself, and it is found against him, the judgment is that the plaintiff do recover both the debt and costs, in the first place de bonis testatoris, si, &c., and si non, &c., de bonis propriis." 2 Williams on Ex'rs, 1409. (2) As to the rule in relation to costs where the record of the inferior Court is amended after error brought, see Bac. Ab., tit. Amendment and Jeofails (G). Nov. Term, 1854. JONES V. YETMAN. Saturday, JONES V. YEtman. In replevin, under the R. S. 1843, if the goods specified in the writ were not found or replevied, or were not delivered to the plaintiff, by reason of his failing to give bond, &c., and their value as alleged, and as found by the verdict, was less than 20 dollars, the cause was not within the appellate jurisdiction of the Supreme Court. ERROR to the Lagrange Circuit Court. STUART, J.-The question to be first settled in this case is the jurisdiction. It was replevin, commenced before a justice, as long ago as 1846, for a cow and calf, of the alleged value of 18 dollars. It is governed, therefore, by the law of 1843. The justice found the property in the plaintiff, and assessed his damages at 2 dollars. On appeal to the Circuit Court, the case was tried by jury. Verdict for the plaintiff, Yetman, finding the property to be in him, and assessing his damages at 15 dollars. Judgment accordingly. Motions for a new trial and in arrest overruled. The record does not contain the evidence. There is nothing to show that the plaintiff, Yetman, ever gave bond and took the property into possession. Nor, for anything in the record, does it appear that the officer ever took or found the property, or ever had a writ for that purpose. A summons issued on the oath of Yetman, is the only process mentioned. The parties appeared in both Courts. The case has been at least twice before this Court on motion to dismiss for want of jurisdiction. The motion was first made at the May term, 1849, and sustained. The transcript was afterwards re-filed; and at the May term, 1850, the motion to dismiss for want of jurisdiction was renewed and overruled. The case now stands on submission. The question of jurisdiction again comes up on the facts above indicated on the face of the papers. This suit having originated in the justice's Court, we are to look then, first, for the amount in controversy. The |