[Stanford brought case against Treadwell et al. on account of the overflow of his land resulting from a dam erected by them. Pending the case, the matter was, by agreement, referred to arbitration. The facts concerning the reference and return are stated in the second head-note. Exceptions were filed to the award by defendants, and.it was set aside by the court for want of certainty in regard to the measurement of the dam, the award not showing where or how the measurement was made. Plaintiff filed exceptions pendente lite to this ruling. On the trial, the jury found for the plaintiff twenty dollars, and being dissatisfied, he filed his bill of exceptions, and assigned two errors:

(1.) That the verdict was two small.

(2.) That the court erred in- setting aside the award, as set out in the exceptions pendente lite.

When the case was called in the Supreme Court, counsel *727for defendants in error moved to dismiss it, because an exception directly to the verdict of a jury was not valid, and, therefore, there being no legal exception to a final judgment, the assignment of error on the ruling pendente lite was without legal foundation on which to rest. On this motion, the court ruled as stated above, but preferred to affirm the judgment, instead of dismissing the case.]