The opinion of the court was delivered by

No objection or exception appears to have been taken to the motion to dismiss the count in qua. elau. filed after December Term, 1877, nor to the allowing of an amended count in trespass qua. elau. for the injury to the spring alone. The case was tried on the original declaration, and on said amended count, the original new count in qua. elau. being out of the case by the ruling of the court on the motion to dismiss it. It results hence-that there was no question about misjoinder of counts when the case went to trial on the general issue and special notice of defence. If the plaintiff had proved either of the counts, he would have been entitled to a verdict. He amended under the decision and allowance of the court, without taking exception thereto, and by that amendment, his last count was for breaking and entering plaintiff’s close by digging from the spring on plaintiff’s land through and under his wall in such a way as to injure the use and value of the spring. Whatever may be thought of such a count *477in qua. clau., having reference to the law of the books as to causes of that form of action, the plaintiff saw fit to adopt such a count without objection or exception, and to go to trial by jury upon it. The court, in the ruling excepted to, gave the plaintiff the full' scope of the two counts on which he went to trial. In this there was no legal error.

Judgment affirmed.