— “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 defendant.’ There is no error, therefore, in this part of the ease.” Gronour v. Daniels, 7 Blackf. 108. Acby v. Rapelye, 1 Hill, 9.

Judgment affirmed, &c.