¶1This was an action by the appellant, who was the plaintiff, against Barringer, to recover damages for backwater on his land, occasioned by the mill dam of the defendant. Answer by a general denial; verdict for the defendant. New trial refused, and judgment. The record shows that the Court, at a proper stage of the proceedings in the case, directed the jury to proceed, under the charge of the sheriff, to view the premises alleged to be injured by the “backwater ;” that in the evening of November 13,1857, the sheriff conducted the jury to the house of the defendant, within a short distance of the place to be viewed, in order that they might, next morning, proceed without delay to view the premises ; that said jury remained at the defendant’s house during the night, and on the next morning, before viewing said premises, five of them, viz., S. M. Pease, William Cawley, John W. Plenk, Henry G. Davis, and D. B. McCann, without the assent of the sheriff, separated themselves from the other jurors, and went down Yellow Creek, below the defendant’s mill, and remained absent about half an hour. When the jurors returned, they informed the sheriff that they had been down the stream for the purpose of examining the rings upon the trees growing in the bottom, below the mill. Afterward, the jury viewed and examined the plaintiff’s land, at the point alleged to be injured, &c.
¶2It is insisted that the above named jurors, by separating themselves from their fellow jurors without the assent of the sheriff, were, under the circumstances, guilty of misconduct sufficient to annul the verdict. We think otherwise. The jurors who absented themselves may, in doing so, have acted improperly; but it does not appear that any attempt had been made to tamper with them, nor does it appear that their conduct in the slightest degree, or in any manner whatever, *365interfered with the full and impartial investigation of the cause.
¶3The other assignments of error relate to the sufficiency of the evidence; but these assignments can not be noticed, for the plain reason that the evidence given on the trial is not in the record.
¶4The judgment is affirmed, with costs.