seem to be a trespass not of lines; nor of inches; but of feet. The back water not only goes to the mill, the distance of many perches, but rises on the wheel three and one half inches; so that the wheel wades, as the phrase is, and is impeded in a revolution. If one inch at the mill, what must be the overflow at the division line? The how much to the quantum of damages, the overflowing at all goes to the trespass.

goes

It has been alleged that the swell at the mill, is in part owing to rocks below within the plaintiff's own ground. That may be in part, but it is not wholly so.

As to the agreement that has been given in evidence, it goes to shew the understanding of the parties at the time, both as to what might be an overflowing, and a compensation for it. This will be considered. The question nevertheless is still open whether there actually was a raising of the dam in this case, to throw back the water and flood the soil of the plaintiff. Nothing that has happened by agreement, or otherwise, can bar the investigation.

I lay the legal questions out of the case. I reserve the points; though it would not seem to me at present that there is a great deal in them. A devisee may be considered as for some purposes, a transferee, or alienee; but is so identified in his interest with that of the testator, that his situation may seem to be different from that of a purchaser, so as to be considered such an alienee that the writ would not lie against him, or that notice should be necessary. But in this case there has been notice by action and otherwise; the lis pendens, the notoriety of the dispute; the defendant in doing acts himself, adding to the nuisance and continuing it. But these matters will be considered in bank. The jury need not charge their minds with a consideration of these at present. I will reserve them for the consideration of the judges in term; a mere matter of fact will at present be left to the jury; is there a trespass or nuisance, by the defendant, upon the land of the plaintiff, and how much the damages?

And the recognitors of assize aforesaid, say, that the said John Livezey, and Joseph Livezey, were seized in their demesnes as of fee of and in the water mill, mill race, water course, stream of water, and lands and tenements with the appurtenances-in the said plaint mentioned, and as therein specified, and as the said John and Joseph Livezey, have above declared. And further the recognitors aforesaid, say that the above mentioned Benjamin Gorgas, Jacob Gorgas and John Weiss, unjustly and without judgment, the said certain wall and dam, in the view of the said recognitors placed, and in the said plaint specified, did levy and raise to the height of 2 inches and one half of one inch from a line 2 inches and a half below the lower edge of a certain hole of one inch diameter, bored in the rock at the eastermost end of the said dam thereby obstructing the said mill race and water course, and the said stream of water running from the said mill of the said John Livezey and Joseph Livezey, to the nuisance of the said freehold of the said John Livezey and Joseph Livezey, but not with force and arms, as the said John and Joseph Livezey, have above complained. And the recognitors aforesaid assess the damages of the said John Livezey and Joseph Livezey, occasioned by the obstruction and nuisance aforesaid, beyond their costs and charges, by them in their suit aforesaid expended at $ 533 and, and for their costs and charges aforesaid, at 6 cents. And as to the other defendants, the recognitors aforesaid find in their favour.

Whereby he is endamaged to such a value." 3 Bl. Com. 295.

ACCORDING to the old doctrine, the sum must be certain, and declared upon as such. Hence, it has been a question, whether, on a declaration on a bond, or covenant, a jury may not find damages, beyond the penalty. Whatever technical embarrassment there may have been, or may still be, in a court of law in England, as to this matter, there is none,

But as to the sum given by sum laid in the declaration,

and ought to be none, with us. the verdict, being more than the that is a technical objection which has received some coun tenance by implication, but on which I do not know of any decision. The implication I speak of, is, the remititur which, ex majore cautela, it has been usual to make. I have known counsel remit from an honest and fair demand, where, from some oversight, the sum laid, had happened to fall short; and it appeared to me to be one of those technical formalities, which are in the way of substantial justice, that was thought, to render this remitting necessary. The principles are correct, and further justice, that the writ shall agree with the precipe; the declaration with the writ; the evidence with the declaration; the verdict with the evidence; and that the judgment shall correspond with the verdict; and the execution pursue the judgment. But the less or more of the sum laid in the declaration ought not to affect. The more does not affect; and why should the less? It is as im material as the day laid, and ought to be so held. It is not what a plaintiff demands, but what he proves, that is, and ought to be the measure of his damages. In an action of slander, words spoken, since the action brought, that are not of a nature to support a new action, and import a continuance of the same slander, may be given in evidence, at least, according to some authorities, in aggravation of the damages, and these words may have been spoken, since the declaration filed. Be that as it may, I take it, that in an action for assault, battery, and wounding, evidence may be given of an injury consequent upon the battery, and the effect of it, even after the declaration filed; as the loss of an eye, or the use of a limb; and this may entitle to greater damages, than was in the contemplation of the party, at the time of the suit brought, or the filing of the declaration. But I do not set any principle of justice that could be in the way of a recovery, if it should have so happened that the suitor had omitted to make an application for leave to amend.

The idea of a plaintiff recovering no more damages than he counts for, held with great propriety and good reason, in

detinue and in debt; in detinue, because the judgment is to have the thing detained; and damages, if the thing itself cannot be had. The value which the plaintiff has, himself set upon the article, must be taken to be the measure. Jenk. 218, pl. 25. This principle has been transferred, without examination, into other actions, where the reason does not apply. This, where the jury do not first look at the value of the thing in controversy, and then find damages as a consequence; but, at the damages in the first instance, for the wrong done.

"The whole of this process is denominated the pleading." Bl.Com. 310.

THERE is a variation in the practice of the Pennsylvania courts from that of England; not in principle, but in the lesser length of the pleadings. The original process is shorter, because an ac etiam; or quo minus; or other fiction, is not necessary to give a court jurisdiction; which is the case in that of the king's bench, or exchequer, where jurisdiction is taken of matters that properly belong to the court of common pleas. But the process of summons, or capias, or other writ, is the same, substituting the name of the commonwealth for that of the king. The declaration also, which is the next step in the cause, on the part of the plaintiff, is the same; and therefore we take the English forms which are devised, in the different kinds of action, to give a statement of the demand in the fewest and clearest words possible; though attornies will add count upon count, where a single one might suffice. These will be sometimes necessary; because the party, or the attorney for him, may not be able always to know what he will be able to make out, or prove. ́As for instance, in a count, or statement, he may allege that the defendant contracted to pay him so much for a certain article which he sold, and delivered to him. He may not be certain that he will be able to make out that it was at such a

certain price; and, therefore, he will allege that having sold, and delivered such article, the defendant agreed to pay him as much as it was worth. The same in the case of labour, or service done and performed: the same in all cases, where if he should not be able to make out the demand in one way he might in another.

By our act of Assembly, 21 March, 1806, Sec. 5, it is provi ded, "That in all cases where a suit is or may be brought in any court of record within this commonwealth, for the recovery of any debt founded on a verbal promise, book account, note, bond, penal, or single bill, or all, or any of them, and which from the amount thereof may not be cognizable before a justice of the peace, it shall be the duty of the plaintiff, either by himself, his agent or attorney, to file in the office of the prothonotary, a statement of his, her or their demand on or before the third day of the term, to which the process issued is returnable; particularly specifying the date of the promise, book account, note, bond, penal, or single bill, or all, or any of them, on which the demand is founded, and the whole amount what he, she or they believe is justly due to him, her or them from the defendant; and it shall be the duty of the defendant, at least twenty days before the next succeeding term to which the process issued is returnable, to file in the office aforesaid, either by himself, his agent or attorney, a statement of his, her or their account, if any he or she hath against the plaintiff's demand, and particularly specifying what he, she or they believe is justly due from him, her or them to the plaintiff'; and it shall be the duty of the prothonotary to file, without the agency of an attorney, such statements; and it shall be the duty of the parties to appear in their proper persons, by their agents or attornies, on the third day of the next succeeding term, to which the process issued is returnable, when the term is for one week, and on the second Monday of the term when the same is to continue two weeks, before the court, which shall have issued the same; but if the plaintiff or plaintiffs shall neglect to appear as aforesaid, the court shall order a non-suit to be entered; and if the plaintiff shall appear, but the defendant or defendants shall neglect to appear as aforesaid, and make defence against the demand of the plaintiff or plaintiffs, it shall be the duty of the court to give judgment by default against the defendant for the sum which shall appear to be due; but if the parties appear as aforesaid, and the defendant refuse to confess judgment, the cause shall be tried by a jury, or on the agree