¶1Browning sued Fairfield and Freeman in an action on the case. The declaration states that the plaintiff, on, &c., was possessed of a certain close of about 20 acres, and of a water saw-mill thereon, situate on a certain stream, &c.; that the defendants, to injure the plaintiff, did, on, &c., construct a mill-dam across said stream on said, defendants’ close below the plaintiff’s mill, and thereby caused the water to overflow said mill, &c.
¶2Five pleas in bar; the first of which was the general issue, and the fourth, liberum tenementum.
¶3Issues in fact on all the pleas except the fourth.
¶4Replication to the fourth plea; a demurrer to the replication; the replication withdrawn; and a demurrer filed to the fourth plea.
¶5The demurrer to the fourth plea was sustained; and the issues in fact were tried by a jury. Verdict and judgment for the plaintiff.
¶6The defendants filed a bill of exceptions, which sets out some instructions that were given to the jury; but it does not contain the evidence.
¶7There are three errors assigned.
¶8*323First, that the replication to the fourth plea should not have been withdrawn until the costs were paid, &c. Acts of 1844, p. 28. It does not appear, however, that the plaintiff made any objection to the withdrawal of said replication without the payment of costs, &c. It must, consequently, be now presumed that the withdrawal was with the plaintiff’s assent.
¶9Secondly, it is said that the demurrer to the fourth plea should not have been sustained. The validity of that plea, which was liberum tenementum, need not be examined. Supposing the plea to be good, the error in sustaining the demurrer to it is no cause for reversing the judgment. The evidence admissible under that plea, was also admissible under the general issue. 2 Greenl. Ev. 513. The cause has been tided under the general issue, and the defendants have had an opportunity to introduce the same evidence that they could have introduced under the fourth plea. The sustaining of the demurrer did not, therefore, injure them, and they cannot complain of it. Shanklin v. Cooper, .8 Blackf. 41.—Cohee v. Cooper, id. 115.
¶10Thirdly, the defendants say the Court gave an erroneous instruction to the jury. The instruction objected to is this: That if the defendants had kept the dam higher than they had a right to do, they were liable, though they may not have been the original trespassers in raising the dam. This instruction is objected to, on the ground that the charge against the defendants, which was for erecting the dam, &c., was not established by proof of their merely keeping it up. But supposing this instruction to be erroneous, still the defendants cannot complain of it; because, after it was given, the Court, at the defendants’ request, gave a contrary instruction — just such a one as the defendants say ought to have been given. The instruction, thus subsequently given, is as follows: “The jury must find, from the evidence, that the defendants raised their dam above the usual height, and thus caused the water to overflow the plaintiff’s wheel, or they must find for the defendants.” There is no error therefore in this *324part of the case. Gronour v. Daniels, 7 Blackf. 108.—Acby v. Rapelye et al., 1 Hill, 9.
¶11The judgment is affirmed with 10 per cent, damages and costs.