case, recover against the person so distraining, double the Nov. Term, value of the goods distrained." The evidence shows that on the 15th of December, 1849, a written agreement was entered into between the parties, whereby Stowman rented to Landis "a saw-mill and a sufficiency of water for the purpose of sawing at all times, for the term of one year from that date." Stowman was to keep the mill-dam and fore-bays in good order, and if, for any space of time, the water should become insufficient, or be drawn off for the purpose of repairing the dam, during such time the rent was to stop. For the rent Landis stipulated to pay 320 dollars, in good merchantable lumber, at the market price, to be paid every three months during the year, if demanded, or at any time the same was due. It was shown that Landis, in pursuance of the agreement, went into possession of the premises, and used them for the term above stated; that in July, 1850, Stowman demanded the rent of Landis, and also on the 2d of October of that year, made another demand of rent; that the mill, in the summer and fall of 1850, ceased running at least forty days, on account of the insufficiency of the water, and also because the dam was in bad order. It was proved that Stowman, on the 20th of November, 1850, procured a justice of the peace to issue a distresswarrant against Landis, claiming of him 145 dollars for the rent of the mill; that the warrant was placed in the hands of a constable, who, by virtue thereof, distrained certain property belonging to Landis, and sold it for 139 dollars; but the property sold was shown to be worth 190 dollars. The Court, upon the close of the evidence, charged the jury as follows: 1. "The rent, by force of the contract, would not become due until the 15th of December, 1850. It might be made to fall due quarterly, however, by the act of Stowman, if he has made a proper demand for each quarter. Stowman might make a demand for either quarter's rent he might designate, at any time before distraining. If Stowman made a general demand, without designating any partic 1854. STOWMAN V. LANDIS. Nov. Term, ular quarter's rent, the demand would be good for the 1854. quarter's rent due next preceding the demand." STOWMAN V. LANDIS. 2. "If the jury find that the water was drawn off during the continuance of the lease, for the purpose of repairing the dam, fore-bay or mill, the time the water was off would be a proper deduction from the rent, and would render the amount of rent uncertain, and, therefore, not distrainable, unless the quarter's rent during which there had been no such deduction, had become due and fixed by the demand.” 3. "If Stowman had made any one quarter's rent due by demand, he could distrain for that quarter at any time afterwards. Otherwise he could not distrain, under this contract, until the 15th of December, 1850. The first and third instructions are unobjectionable. The second, in our opinion, is erroneous, Whether the rent was or not distrainable, was an inquiry not properly involved in the case. This is shown by the statutory provision above quoted. If any rent was due when the justice issued the distress-warrant, though it may have been the subject of deduction, and on that account uncertain in point of amount, it was not competent for the jury to return a verdict for double the value of the goods distrained. The statute does not authorize a recovery for an irregular distress, but only for a distraint when no rent is really due. In the abstract, the instruction is correct. To authorize the collection of rent by a landlord's warrant, "the sum must be certain and be stipulated by contract." Still rent may be due, though in amount uncertain. It follows that the jury, in this form of action, had no authority to render a verdict for double the value of the property taken, if rent was actually due, whether the demand for it was certain or uncertain. We are of opinion that the second instruction should have been withheld, because it was irrelevant, and may have induced the jury to predicate their verdict upon the result of an inquiry unconnected with the real merits of the controversy. Per Curiam.-The judgment is reversed with costs. Nov. Term, Cause remanded, &c. I. Hartman and J. Bush, for the plaintiff. 1854. WOOD Y. THE STATE. WOOD V. THE STATE. Indictment for a nuisance. The indictment charged that the defendant, on, &c., at, &c., unlawfully, &c., did maintain "a certain mill-dam in, about and across a certain stream of water in said county called Elkhart river." Held, that the locality of the nuisance was not described with sufficient certainty even on error. ERROR to the Lagrange Circuit Court. DAVISON, J.-Indictment for a nuisance found in the Noble Circuit Court, which, on change of venue, was tried in the Lagrange Circuit Court. The charge is that Wood, on the 1st day of March, 1850, at the county of Noble, and from that day until, &c., at said county, injuriously and unlawfully did continue and maintain a certain mill-dam in, about and across a certain stream of water in said county called Elkhart river, thereby then and there causing said river to overflow and back upon the lands adjacent thereto, and around said mill-dam, above the same. By means whereof divers unwholesome smells, &c., were emitted and issued from the water so overflowed; and the citizens of said county situated near to and around said mill-dam, in consequence, &c., have been greatly injured, annoyed, disturbed and made sick, &c. Plea, not guilty. Verdict for the state, upon which the Court rendered a judgment, and therein ordered that the mill-dam mentioned in the indictment be abated by the sheriff. There were no motions for a new trial or in arrest. The indictment is alleged to be defective, because it does not state on what part of the river the nuisance was erected. This is the only point in the case. The judgment refers to the indictment as descriptive of Monday, ASHE V. LANHAM. Nov. Term, the locality of the mill-dam, and it therefore becomes im1854. portant to inquire whether that description is sufficiently specific to enable the sheriff to execute the order of abatement with certainty and without mistake. We think the words "a certain mill-dam in, about and across a certain stream of water in said county called Elkhart river," are too general. Other mill-dams may exist on that river, within said county, and, in such case, it might become difficult for the sheriff to determine upon which to execute the process. The locality of the nuisance was, no doubt, susceptible of a specific description. It might have been designated as being at some known place within the county. The land on which the dam is constructed could have been described, or such a reference to known objects near or adjacent to it might have been made, as would have rendered the indictment, in point of description, sufficiently certain. Cox v. The State, 3 Blackf. 193, was a prosecution for obstructing a navigable stream. In that case, it was held that the indictment was defective, because it did not describe the place where the obstruction was situated. We perceive no valid reason why the same rule of description should not apply to the case under consideration. The locality of the mill-dam not being stated with sufficient certainty, renders the indictment in this case insufficient, even on error. 1 Chitty Crim. Law 135. Per Curiam.-The judgment is reversed. Cause remanded, &c. J. B. Howe, for the plaintiff. R. A. Riley, for the state. ASHE and Others v. LANHAM. A boundary fixed by the county surveyor, in the presence and by the request of the parties interested, will be held, in a subsequent controversy between them, to be prima facie correct. The county surveyor is presumed, prima facie, to have a knowledge of the art Nov. Term, of surveying. ERROR to the Switzerland Circuit Court. a 1854. ASHE V. LANHAM. December 4. PERKINS, J.-Trespass, in the Switzerland Circuit Court, by Lanham against Ashe and others, alleging that they Monday, broke into the plaintiff's enclosure and carried away house of the value, &c. Plea, the general issue. Jury trial, verdict for the plaintiff, and judgment, over a motion for a new trial, on the verdict. The real object of the suit was to settle a dispute about the boundary line between Lanham and Ashe, and the greater part of the evidence bears upon that question. It was proved that the line in dispute had been run by Howe, the county surveyor, at the request of Ashe, and in presence of said Ashe and Lanham; that said surveyor, at the time, had in his possession what he called the field-notes, and to which he referred, while getting his corners and running the line, as such, and that by the line established by said surveyor, the house pulled down was upon the land of the plaintiff, Lanham. Subsequently, the plaintiff offered in evidence what purported to be a copy of the field-notes of the county, and of said lands, certified by the surveyorgeneral, without further proof in regard to them than the testimony of Daniel Kelso, who swore that he was a surveyor, and had for a length of time known said field-notes in the county, had surveyed by them, and recognized them as, and considered them to be, the field-notes of Switzerland county. We are not clear that the Court did right in admitting these notes in evidence without previous proof that they had been procured, deposited, and kept under and according to the statute upon the subject; but we think their admission was harmless. The survey proved to have been made by the county surveyor at Ashe's request, and in his presence, as well as in that of Lanham, was prima facie correct. By it the house in question belonged to the plaintiff, Lanham. There was no attempt to impeach the correctness of that survey, except by the testimony of some witnesses not surveyors, that it did not correspond to what |