
    
      Elizabeth Speer et al. vs. W. Duval et al.
    
    In an action on the case for flooding plaintiff’s land with the water of defendant’s mill-pond, an order will not be granted, at the instance of plaintiff, for a survey of the pond and adjacent lands; and that defendant draw off the water from his pond to facilitate such survey.
    
      Before Frost, J. at Laurens, Fall Term, 1851.
    Case for flooding plaintiff’s land. The plaintiffs moved the following order.
    “ On motion of Sullivan, plaintiffs‘s attorney, it is ordered that James G. Gibbes do make a survey of the mill-pond of the defendants and such of the adjacent lands of the parties as may be necessary to ascertain the rise in the stream complained of by the plaintiffs. And it is further ordered, that the defendants draw off their mill-pond to facilitate such survey,- between this and the first day of February next, and that they do give the plaintiffs ten days notice thereof, previous to such drawing off of said pond.”
    The order was refused. “I knew,” said his Honor, “of no precedent for such an order ; and it appeared to be inconsistent with the practice of the Court to require the defendant, at his cost and detriment, to provide facilities for the plaintiff to prove his case.”
    The plaintiffs appealed, on the ground,
    Because, it is respectfully submitted, that the Judge erred in refusing said order, which is indispensable to justice in the case, and might have been granted consistently with the power of the Court.
    Sullivan, for appellant.
    
      Irby <Sp Henderson, contra.
   Per Curiam.

EvaNS, Wardlaw, Frost, Withers and Whitner, JJ. concurring.

O’eall, J. absent at the argument.

Motion dismissed.  