The opinion of the Court was delivered by Rogers, J. This was an action on the case for a nuisance in building a dam, which caused the water to flow back on the waterwheels of the plaintiff’s mill, by which he was deprived of the benefits and profits of his mill. The defendant pleaded not guilty, and, in substance, that there was a verdict and judgment for the defendant in a former suit between the same parties, in which the same matter was in controversy. The plaintiff replied that the matters in controversy were not the same, but different, and on this they went to trial.

The record of the suit between the same parties went directly to support the special plea, and was, on that ground,, clearly evidence; and whatever error may have been committed in the admission of the evidence in the second bill, worked no injury to the plaintiff, as the witness, when interrogated, would not undertake to judge, as he said, what caused the ripple to cease. Nor can I perceive any error in admitting the testimony contained in the third bill. But the plaintiff complains of the charge.

The court charged the jury, in substance, that if the swell of the water remained as it was at the time of the former verdict and judgment for defendant, it was a flat bar to the plaintiff’s recovery, and this opinion is in conformity to the case of Kellkoffer v. Herr, 17 Serg. & Rawle 319. The defendant pleaded the former recovery as an estoppel, and that case decides that this concludes the parties, when the same matter was in controversy between them.

If the defendant had pleaded the general issue, and had relied on the former recovery by way of evidence, the jury would not have been estopped; but it is otherwise when pleaded as an estoppel. Here the subject matter of controversy was identically the same, and is so found by the jury; the court were, therefore, right in instructing the jury that the plaintiff, on this state of facts, had no cause of action. Judgment affirmed.