#### THOMAS BEATTY vs. H. W. CONNER.

In a proceeding to recover damages for ponding water by a mill dam, under our act of Assembly, the verdict of the jury and the judgment of the Court thereon are conclusive as to the assessment of damages, up to the time when such judgment was rendered.

An application for relief from damages, assessed for a period subsequent to the time of the judgment, can only be heard if the dam is taken away or lowered. The washing out of the channel and other causes of a similar kind, furnish no reason for abating the damages.

The case of *Pugh*v *Wheeler,*2 Dev. and Bat. 50, cited and approved.

■ Appeal from the Superior Court of Law of Catawba County, Spring Tenn, 1851, his Honor Judge Battle presiding.

At Spring Term, 1849, oí the Superior Court of Catawba county, in a proceeding by the plaintiff against the defendant, who was the owner of a mill, for damage by reason of the ponding of water on the land of the plaintiff, the jury returned a verdict assessing the annual damage at the sum of $70, and judgment was entered, that the plaintiff recover of the'defendant the sum of $350, the execution to be staid, except for the sum of $140, the damages assessed for the two years, commencing on the second Monday in June, 1846, (which was one year prior to the filing of the petition,)and ending on the second Monday in June, 1848. This part of the judgment was satisfied.

The plaintiff afterwards took out execution, returnable to Spring Term, 1850, for the $70 damage from June, 1848, to June, 1849. At the return term of the execution, Spring Term, 1850, the defendant filed an affidavit, in which he states, that, in two weeks after the first finding of the jury, on the premises, in June, 1848, he lowered,his dam 36 or 37 inches; whereby the water was taken off of the land of *342the petitioner and no longer did him any damage. Upon this affidavit, a rule was taken on the plaintiff to show cause why the execution should not be set aside. The rule was made returnable to Fall Term, 1850, and the amount of the execution was paid into Court. At Fall Term, 1850, the rule was discharged by his Honor Judge' Battue, who states, that, in addition to the fact set forth in the affidavit, the deiendant offered to show, that, by the washing out of the channel of the creek, since the rendition of the judgment, and other causes, the water has been so lowered as not to injure the plaintiff; but he was of opinion, that the defendant could not be permitted to show any thing not set out in the affidavit. The defendant appealed.

*Boy den,*for the plaintiff.

*Craig*and *Landers,*for the defendant.

PeaksoN, J.

Lord Coke says, “ good matter must be taken advantage of in apt time, proper order, and due form.”

In debt upon a former judgment, the defendant cannot avail himself of any matter, the benefit of which he could have had on the first trial. So, upon a *scire facias*to revive a dormant judgment, or upon *audita querela,*the party is confined to matter arising since the judgment, by which it has been satisfied, in whole or in part, and is not heard to allege any matter existing prior to the judgment, upon the presumption, that he has had the benefit of it.

The principle is decisive of the present question. In *Pugh*v *Wheeler,*2 Dev. and Bat. 50, it is *held, “ if the*jury can see that more or less damages have arisen to the plaintiff at different times, they are at liberty to increase or 'diminish those found accordingly.” In that case, the wheel of the petitioner, who owned a mill above that of the defendant, was burned after the first year, and, in consequence thereof, the damage was greater afterwards than during the first year, and the jury assessed the damages at 12 1-2 cts. *343for the first year, and at $10 for the annual damages after-warrds. This was held to be right, and according to the proper construction of the statutes of 1809 and 1813; for although the first statute, which provides for a jury on the premises, seems to have contemplated, that the jury would find an average sum as the annual damages, yet, when the second statute allowed an appeal to the Superior Court and a trial at bar, under which the proceedings would most usually be pending for several years, there was then no reason why the jury should not find the actual damages up to the time of the trial, so as to assess a less sum for the first, and a larger sum for the other years, if, in fact, the damage was greater as in the case above cited ; or a larger sum for the first, and a less for the other, years, or none at all, if, during the pending of the proceedings and at, any time before the trial at bar, the dam was lowered, so as to diminish the damage, or remove it altogether. This was the necessary construction ; for, the dam was not kept up, (say after the first year,) and the jury at bar were still required to assess the annual damage, taking no notice of that fact; as soon as judgment was entered pursuant to the verdict, the defendant must take a rule to show cause why it should not be ordered, that no execution issue, except for the damage of one year. This would be absurd; and it would naturally be asked, why could not this matter have been enquired of by the jury, so as to let them fix the *actual damage ?*Why the force of assessing high damages, and the instant thereafter having an affidavit to strike it all out, except for one year ?

In this case, the defendant says, he lowered his dam in June, 1848, so that, after that time, the water did the plaintiff no damage. Why did he not prove this upon the trial at bar, Spring Term, 1849 ? That was the “apt time,” and the jury would, in that case, have assigned no damages after June, 1848* He cannot now be heard, upon the principle above announced.

*344We also concur with his Honor upon the other question, without deciding on the sufficiency of the reason given by him, that “ the washing out of the channel, and other causes,’ are not set forth in the affidavit, for this reason — such cases do not come within the meaning of the Statute. The damages are not to be abated, if “ the dam is kept upso, the application ean only be heard, if the dam is taken away or lowered. If the question of damages was open upon every suggestion of diminution from other causes, there would be a contest every yeai’, when an execution was applied for, and the petitioner’s right would depend upon, whether it had been a wet or dry season.

Psa C URJA Mi Judgment affirmed.