Morgan vs. Taylor.

circumstance, too, to show that Morgan's possession was secret, but it is not conclusive on that point. We agree with the court below, that the claimant's possession should be openpalpable to the world, in order to relieve the land from the lien of the judgment, for the simple reason that the plaintiff in execution has four years in which to enforce his judgment, and if Hooks were still on the land, or if his agent and overseer were there, holding under Hooks, and ignorant of the trade, and not holding under the claimant, the plaintiff might well conclude that the land was still the property of Hooks, and the possession still his, and that he need not be on the alert to levy his fi. fa. The possession, therefore, must be open and notorious for the entire four years; but the court erred, we think, in holding that the mere agreement to keep the trade a secret destroyed the entire right of the claimant.

4. The fourth ground is, that the jury found contrary to the following charge of the court: "That if the personal property levied on in October, 1868, was claimed, and damage and replevy bonds were taken, and if the claim was dismissed in 1871, and if the property was not brought up at the time and place of sale to answer the claim, then that is a satisfaction of the fi. fa., so far as the claimant is concerned, and the lien was, by the forfeiture, lost." The testimony was conflicting on the point. Hooks swore that the property was not his, and the jury might well have found as they did, because nobody was hurt. The court, by refusing a new trial on this ground, held that the jury did not find against his charge, and we will not control his discretion in so ruling.

5. We think that there is nothing in the next ground as to the newly discovered evidence. Neither the claimant nor his counsel swear that they did not know of the evidence of the witness before the trial. The claimant ought to have known it, for he was with the witness and saw everything the witness swore he would testify. Besides, the witness should have been sworn, and there is want of diligence, we think.

6. As to the last ground that the verdict is contrary to the evidence, without evidence, and contrary to the principles

55 228 59 165 70 585

Jones vs. Lavender.

of justice, we must say that it strikes us that the weight of
the testimony is with the verdict. Hooks' family did not
leave the place until May; what time in May does not appear,
it might have been after the 21st of May, 1869, and the levy
was made on the 21st of May, 1873. Hooks' agent and over-
seer, who, it seems, never held under the claimant, never left
the place till August, 1869. On the other hand, we have
only the testimony of the claimant and of Hooks that the
sale was in February, 1869, and the possession, as between
the two, was thenceforward in the claimant, and whatever
Hooks did in managing the place thereafter, was as agent of
the claimant. To say the least, the evidence is conflicting on
this point. The possession during 1869, up to August, if in
the claimant at all, was hardly open and notorious, as we think
it should have been to discharge the land from this lien. Ac-
cording to the repeated rulings of this court, we should,
therefore, let this verdict stand, if we were satisfied that the
jury had passed upon the issue of the four years open and no-
torious possession by claimant. But we cannot say that they
did. The court charged that his possession availed him noth-
ing unless all the purchase money was paid, and the jury
may have found their verdict on that charge without passing
upon the true issue. The court charged that an agreement
to keep the trade a secret, of itself, rendered the claimant's
possession unavailing, and the jury may have found their
verdict upon this agreement alone. We think, therefore, that
the case should be again heard, and the true issue, as indicated
in this opinion, fairly passed upon by the jury.
Judgment reversed.

AARON F. F. JONES, plaintiff in error, vs. JAMES F. LAV-
ENDER, defendant in error.

1. The record of a former recovery is not admissible under the plea of not
guilty. The general issue is a denial of the allegations in the plaintiff's
declaration, and admits only such evidence as disproves the plaintiff's cause

Jones vs. Lavender.

of action; all matters in satisfaction or avoidance must be specially pleaded: Code, section 3458.

2. The record of a former recovery is admissible under a special plea (however vague,) setting up a former suit, unless objected to on account of insufficiency in the plea; and if that were the ground of objection in the court below, it ought so to appear in the bill of exceptions. A mere general statement that evidence was objected to without the specification of any ground, will not reach defective pleading: 47 Georgia Reports, 99. 3. It is too late to demur to a defective special plea after all the evidence that could be admitted under it, if duly amended, has come in.

4. Unless it appear that the demurrer to a plea was special it will be presumed to have been general, and therefore, on a bare statement in the bill of exceptions that a plea was demurred to, and the demurrer overruled, the supreme court will not pass on the form, but only on the substance of the plea.

5. In an action on the case for obstructing a water course and continuing the obstruction, causing thereby damage to the plaintiff's land and mill, a plea which alleges a prior action between the same parties for the same cause of action, and a verdict therein for defendant, is good in substance, and ought not to be stricken on general demurrer.

6. In construing such a plea, the denial of trespass or damage since the rendition of the verdict in the former action, may be treated as surplusage. 7. Damages caused by back-water from a mill-dam, can be recovered only up to the time of commencing the action, not up to the trial: 1 Saunders' on Pleading and Evidence, 760; Sedgwick on the Measure of Damages, 105. 8. Where the plaintiff might, without any new act on the part of defendant after a former suit was commenced, have sustained damage between the time of instituting that suit and the time of instituting the present suit, and such damage might have resulted from the same positive acts complained of in the former suit by reason of the longer continuance of the state of things which those acts established, a verdict for defendant in the former suit is not conclusive upon the plaintiff in the latter.

9. Where, however, there is perfect identity in both suits as to the plaintiff's right, the defendant's wrong and the plaintiff's damages, the record of the former suit is a complete bar, whether pleaded technically as an estoppel with a prout patet per recordum, or given in evidence to the jury: 17 Vermont R., 419; 2 Penn. State R., 492; 4 Gill. & J., 360.

10. If the amending party's original pleadings were full enough to give rea sonable premonition that the matter embraced in the amendment existed as a fact, and was likely to be used on the trial, a want of preparation by adverse counsel, on the points of law applicable to it, is no cause for a continuance on the ground of surprise.

Pleadings. Former recovery. Evidence. Practice in the Superior Court. Practice in the Supreme Court. Demurrer.

Jones vs. Lavender.

Damages. Water. Amendment. Continuance. Before Judge HALL. Pike Superior Court. April Term, 1875.

Reported in the opinion.

BOYNTON & DISMUKE; SPEER & STEWART, for plaintiff in error.

BECK & BEEKS, for defendant.

BLECKLEY, Judge.

On the 22d of September, 1874, the plaintiff filed a declaration in case against the defendant, laying damages at $1,000, and alleging in the first count, that on, and for a long time anterior to, the 10th day of October, 1872, the plaintiff was, and had been, ever since, the true owner, and in possession of certain premises, fully described; and that the defendant did, on the said 10th day of October, 1872, erect, keep and maintain, from thence until the commencement of this suit, a mill dam on certain lands of the defendant; and by the erection of the dam, did back up, and overflow the water of a certain stream running through the plaintiff's said premises, whereby the defendant caused the water to flood, overflow and destroy two acres of the plaintiff's bottom land; and did, by keeping and maintaining said dam, caused the water to back in the stream and overflow and cover the wheel of the plaintiff's mill situated on his said premises, which mill was of the yearly value of $200 00; whereby the defendant then, and has continually since, by the backing of the water over the wheel of the plaintiff's mill, and the overflow of his said bottom land, damaged and injured the plaintiff.

The second count in the declaration alleged, that on the 10th of October, 1872, the defendant erected, and has since maintained and kept up, a mill dam whereby the water of the stream is backed up into a large pond and overflows and damages two acres of plaintiff's bottom land, and the water is caused to flow back and stand in an eddy over the water wheel

Jones vs. Lavender.

of plaintiff's mill, preventing the mill from running, etc., to the plaintiff's damage, etc.

The defendant pleaded the general issue, and a very vague special plea, in which he set up the defense of res adjudicata, because, as the plea alleged, the title to the plaintiff's land was distinctly put in issue on a former trial between the same parties, and the question was heard and determined and a verdict rendered for the defendant. This plea described no particular action and made no profert of the record.

Evidence was introduced for both parties. That for plaintiff tended to prove title in him continuously from a date prior to 1868, the commission of the original trespass by defendant through increasing the height of his dam, in that or the following year, the continuance of the back-water from the same cause up to the time of trial, and continuous damage therefrom to the plaintiff by overflow of his land and obstruction of his mill wheel, in the manner alleged in the declaration. That for defendant tended to show that the water had never been higher or more hurtful to plaintiff after defendant raised the height of his dam, than it was before. The defendant himself, testified that there had been no change in his dam or pond since the last trial of a similar suit between the parties touching the same matter, no change in the water marks, and no additional damage to the plaintiff; and that since that time a part of the dam had been lowered five or six inches by washing off, the effect of which was to reduce the height of the water.

The record of the former suit referred to was then offered in evidence. That suit was commenced March 5th, 1872, and terminated by a verdict for defendant at April term, 1874. The evidence was admitted over objection made by the plaintiff, the ground of which is not stated.

The defendant then, by way of amendment of his pleading, filed a plea of former recovery, alleging, in substance, that the cause of action now complained of existed at the time of filing plaintiff's writ against him in a former suit, and was alleged therein as such cause of action, and constituted the