
    Beard et al. v. Yates, appellant.
    
      Evidence—former adjudication covenant torepai/r — recital in deed — case on appeal.
    
    Defendant’s counsel asked a witness called by Mm: “ What was the head in the mill-dam at the time plaintiff’s grantor purchased ?” Before the ques tion was answered it was shown, on the part of plaintiff, that the matter of the head of the water had been determined in a former adjudication between the same parties. Held, that the testimony of the witness was properly excluded.
    A deed from T. to D., under which plaintiff claimed title, bound D. and his grantees to keep up and maintain two-thirds of a dam, and recited that one B., to whom had been conveyed certain rights in said dam, was bound by covenant to keep up and maintain one-third of said dam. Defendant was grantee of T., and was not bound to keep up or repair said dam, or to contribute toward it. Held, that a refusal of the court to charge that defendant was under no obligation to repair was error, and as the case on appeal is not stated to contain all the evidence, and contains only the part of the charge excepted to, this court cannot hold that such erroneous ruling might not have influenced the verdict and must grant a new trial.
    
      A. Storrs and L. P. Perkins, for appellant.
    
      8. S. Smith, for respondent.
   E. D. Smith, J.

The head note contains substantially all that is in the opinion except a review of the evidence.

Judgment reversed and a new trial granted.  