#### JAMES M. WRIGHT *v.*J. *&*E. B. STOWE.

If water be ponded back on the land of another by the erection of a mill-dam, he is entitled, in the remedy by petition, to nominal damages, whether there be actual damage or not.

A witness is not competent to testify to what a deceased witness swore on a former trial, unless he says he is able to state the substance of all that was deposed to by the deceased witness.

An exception to the competency of the witness, need hot set out the testimony which the witness was called to give. *(IGmel*v. *IGmel,*4 Jones’ Eep, 121, reviewed.)

This was a petitioN for damages for ponding back water upon plaintiff’s land, tried before Bailey, J., at the Special Term, July, 1857, of Lincoln Superior Court.

Upon the trial of this cause, there was much testimony on both sides, which need not be stated. His Honor instructed the jury, among other things, that “ if the water was thrown up the branches, which ran through the low ground, or against the *517banks of tbe river, and was taken up by absorption, and did no injury, whatever, to the plaintiff’s land, he would not be entitled to nominal damages.” To which the plaintiff excepted.

A witness was called to prove what one Larkin Stowe, a deceased witness, had testified on a former trial of this cause. Upon a preliminary examination, the witness said he was able to state the substance of all that Mr. Stowe deposed to on that occasion, on the subject of damage, but was not able to give the substance of his whole evidence in the cause. The witness was objected to by the plaintiff, but admitted by the Court. Plaintiff again excepted.

Verdict and judgment for the defendants; and the plaintiff appealed.

Boyden, and Ilolie, for the plaintiff.

*lander, QvAon,*and *Thompson,*for the defendants.

Battle, J.

The last proposition in his Honor’s charge upon the subject of damages, cannot be supported upon a proper construction of the 15th sec. of 74th ch. of the Rev. Statutes. (See Rev. Code, ch. 71, sec. 14.) • If the water be, in fact, ponded back upon the plaintiff’s land, he will be entitled to recover, at least, nominal damages; the statute being intended to change the form and details only of the remedy, and not the principle of the action. See *Gillet*v. *Jones,*1 Dev. and Bat. Rep. 339. Eor this error, however, his Honor is not responsible, as his charge is fully sustained by what was said, inadvertently, by this court,! in the case of *Kimel*v. *Kimel,*4 Jones’ Rep. 121. The dictum, which caused the error, was not necessary to the decision of the case, the judgment in which we still think was right. "We cannot but regret the error, though it occurred *a/rguendo*only, and are glad to avail ourselves of this early opportunity of correcting it. We thought,, at the time, that the construction which we placed upon the-section in question, was necessary to discourage the filing of petitions in cases of trivial damages, caused by the erection of mill-dams, which it was, manifestly, the design of the act to *518do, but we find that object sufficiently accomplished by the subsequent proviso, which declares that, when the jury shall assess damages for the petitioner under a certain sum, to wit, five dollars, ho shall recover no more costs than damages. See Rev. Stat., ch. 74, sec. 15; Rev. Code, ch. 71, sec. 14.

As a *venire de novo*must be awarded, on account of the error to Avhich we have referred, we might abstain from expressing an opinion on the question of evidence which was raised on the trial, but the decision of his Honor is in such direct opposition to the opinions expressed in this Court upon the subject, that we feel it our duty to call the attention of those who may be concerned in the next trial, to it. In the case of *Ingram*v. *Watkins,*1 Dev. and Bat. Rep. 442, the Court held that, to impeach the credibility of a witness, by proving that he swore differently as to a particular fact on a former trial, it was not necessary that the impeaching witness should be able to state all that the impeached witness had deposed. But in delivering the opinion of the Court, GastoN, Judge, distinguished it from, the case of a witness who was called to prove what a deceased witness had proved on a former trial. As to the latter, he said, “ here it is required that the secondary evidence shall be full, because it is offered as a substitute. The testimony of the deceased witness should be placed before the new, as the law required it to be placed before the former, triers. Both are entitled, not only to the truth, but the whole truth. The copy must be ascertained to be faithful before it is admitted as a representative of the original. Besides, to receive an avowedly imperfect account of what had been formerly testified, in lieu of the former testimony itself, would be to encourage the party to offer partial, instead of full, secondary evidence. He would be interested to seek out such witnesses as remembered only those portions of the former testimony that made in his favor.” It seems, then, that a witness is not competent to 'testify to what a deceased witness swore, on a former trial, unless he says he can state the *substance of all*that the dec’d. witness testified; and such appears to have been recognized *519as tbe proper rule in the cases of *Ballinger*v. *Barnes,*3 Dev. Rep. 460, and *Jones*v. *Ward,*3 Jones’ Rep. 24.

The objection made here by the defendants’ counsel, that the testimony which the witness was called to give, is not set out in the bill of exceptions, so that the Court may say whether it was material, or not, does not apply ; because the admissibility of the evidence was resisted upon the ground of the *ineompetency of the witness,*and not the *immateriality of Ms testimony.*In the case of the *State*v. *Jim,*3 Jones’ Rep. 348, the distinction between the two objections, is clearly pointed out; it being there said, “ It is only where evidence is ruled out on account of the *matter*that it is necessary to set out, in the statement of the case, what the party expected, or offered, to prove, so as to enable the court to judge of its materiality.”

Per CubiaM, Judgment reversed ; and a *venire Je now.*