This is the defendant’s appeal in the case between the same parties, decided at this term of the court on the appeal of the plaintiff, and reported supra.
The facts of this case, the instructions of the court, the finding of the jury, and the judgment are identically the same as in that case.
We are unable to discover in the record any error to the prejudice of the ajjpellant which is reviewable in this court. The judgment of the court as we decided in that case, was correct, and in fact was more favorable to the defendant than the plaintiff; for the jury had assessed the damages against the defendant for three years prior to the commencement of the action, and the judge, as he had the right to do, corrected the error in the verdict of the jury, by rendering upon their finding, a proper judgment fof the damages for only one year preceding the issuing of the summons.
The only error in the case of which the defendant could complain was that part of the verdict in which annual damages were assessed after the dam had been taken down. But His Honor instructed the jury that they should take that fact into consideration in assessing the annual damages, and although the jury may have assessed excessive damages, that was a matter addressed exclusively to the discretion of the judge. “The Supreme Court cannot grant a newr trial upon the ground that the verdict was against the evidence or the weight of evidence, that being a matter of discretion with the judge, who presides at the trial in the court below, which cannot be reviewed upon appeal.” Long v. Gantley, 4 Dev. & Bat., 313; McRae v. Lilly, 1 Ired., 118; Brown v. Morris, 4 Dev. & Bat., 429.
The error mainly relied upon in the argument before this court was, that His Honor, in the court below, did not render judgment for each year’s damage, according to the specific assessments made by the jury for each year’s damage.
*213There is good reason why that should be done, when the damages are assessed for five years as high as twenty dollars a year, that the plaintiff might make his election and take judgment for only one year’s damages and then resort to his common law remedy, or when the dam is taken down or lowered, that the defendant might, by a motion in the nature of auclita querela, have the judgment modified or set aside, as the case might be for the residue. Gillet v. Jones, 1 Dev. & Bat., 339.
But when the damages are not to be assessed for the five years, as in this case, under the act 1876-’77, and the jury have assessed the same damages for each year, and the judgment is for the damages assessed for past years up to the trial, there can be no reason or necessity for rendering judgment for the several damages assessed for each year; “ eessante ratione, eessat lex.”
There is no error in the judgment of the Superior Court. The judgment of the court is, therefore, affirmed.
No error. Affirmed.