er or not cattle situated as those were would shrink, and that from all the testimony he had concluded that the cattle would shrink 40 pounds each during this time, and that he would allow the plaintiff that sum as damages. The affidavit, however, is not authenticated in any manner, nor is there anything before us to show that it was used on the hearing of the motion for a new trial. It therefore cannot be considered. (2) Error of the court in finding that there was no final settlement of the parties in October, 1887. (3) That the judgment is contrary to the tenth finding of fact. (4) That the judgment is against the weight of evidence. (5) That the judgment is contrary to law. (6) That there is no evidence upon which the court could find for the plaintiff and against the defendants. (7) That there is no evidence to justify the ninth finding of fact. (8) That the judgment is contrary to the special findings of facts. There are also a number of assignments of errors of law, which need not be noticed. It will be observed that the ninth finding of fact is that there was no final settlement between the parties in October, 1887. The questions involved in this case are questions of fact, and upon almost every point the evidence is conflicting. It is not seriously contended that the judgment is against the weight of evidence, and there seems to be no material error in the record. The judgment is therefore affirmed. The other judges concur. END OF VOLUME 49. INDEX. NOTE. A star (*) indicates that the case referred to is annotatel 2. Rev. St. Wis. § 2803, provides that on the death of a party, if the cause of action survives, the court may, on motion or supplemental complaint, allow or compel the action to be continued by or against his "representatives or successors in interest," Section 2806 provides that, in all actions for the recovery of real property, if the plaintiff die before final judgment, "his heir, or his executor or administrator, for the benefit of the heir or creditor," may be admitted to prosecute the action. Held, that where the plaintiff, in an action to set aside conveyances by himself of real and personal property, on the ground of undue influence, dies intestate pending the action, and the action is revived in the name of his special administrator, who stipulates with defendants for judgment settling the title to the realty, it is error to refuse the application of heirs of the deceased plaintiff to revive the action in their name, and set aside the judgment.Jones v. Graham, (Wis.) 49 N. W. 122. 3. An action was commenced against W. and A. as partners, and upon the death of W. was continued against A. alone as survivor. Held that, though plaintiffs might have presented and proved their claim against the estate of W., or proceeded in equity to settle the rights of the estate, and of creditors, they were not bound to do so, and by continuing their action against A. as survivor they did not abandon their suit against W. -Van Kleeck v. McCabe, (Mich.) 49 N. W. 872. 4. A partnership creditor, who has obtained a lien in an action against the firm, does not lose it by the death of one of the partners, if the suit is revived and prosecuted against the survivor as provided by How. St. Mich. § 7401.-Van Kleeck v. McCabe, (Mich.) 49 N. W. 872. 5. In Michigan, if a foreign will has been admitted to probate, and letters testamentary issue to the executor, a cause wherein his decedent was a party may be revived in the name of the executor, although it does not appear that there is property in the state. -Hubbell v. Blandy, (Mich.) 49 N. W. 502. ACCORD AND SATISFACTION. pending an action, to accept a good title to cer- Abatement, see Abatement and Revival. For executor, see Executors and Administrators, 16. firm, see Partnership, 24. religious society, see Religious Societies, 7. of logs, see Logs and Logging, 5–9. While Comp. Laws Dak. § 4830, abolishes all distinctions in form between actions at law and suits in equity, law and equity, as two distinct systems, still remain; and the tests to determine whether an action is legal or equitable (1137) are the facts stated in the complaint, and the subject-matter of the action; and therefore a complaint which alleges the assignment to plaintiff of a specific fund not yet due, the non-acceptance of the assignment by the person on whom it was drawn, and the subsequent payment, by such person, of the fund to defendant, who had knowledge of the assignment, and which complaint prays judgment against defendant for the amount of the fund so in his possession, must be treated as stating an equitable, and not a legal, cause of action, since the assignment, under such circumstances, is enforceable only in equity.-Sykes v. First Nat. Bank, (S. D.) 49 N. W. 1058. ADJOINING LAND-OWNERS. See, also, Boundaries. Lateral support-Excavation. 1. The fact that an owner of land notifies the adjoining proprietor of bis intention to excavate, as required by Comp. Laws 8. D. § 2784, does not relieve him of his duty to do the work in a careful and prudent manner, nor release him from liability for damages for doing it in a careless and imprudent manner.-Ulrick v. Dakota Loan & Trust Co., (S. D.) 49 N. W. 1054. Measure of damages for negligent excavation. 2. The right of a land-owner to recover for injuries to his land in its natural state, resulting from the withdrawal of lateral support by an adjoining proprietor, is an incident to his ownership of the land, and does not depend on the question whether the withdrawal was negligently or wrongfully done; but, where the removal of the lateral support is negligently done, the owner may recover for injuries to his buildings as well as to the soil itself.-Ulrick v. Dakota Loan & Trust Co., (S. D.) 49 N. W. 1054. 3. The measure of damages for negligently excavating on one's own land, so as to deprive the land of an adjoining proprietor of its lateral support, is the diminution in value of the adjoining proprietor's land, including the buildings thereon, and not the cost of repairing them. Ulrick v. Dakota Loan & Trust Co., (S. D.) 49 N. W. 1054. 3. Under Comp. St. Neb. p. 531, § 6, limiting the time for the recovery of real estate to 10 years after the accrual of the action, one who establishes in himself, or in connection with those under whom he claims, an actual, notorious, continuous, and exclusive possession of land as owner for a period of 10 years, thereby acquires a title to the land; and this, irrespective of any question of motive or mistake.-Omaha & Florence Land & Trust Co. v. Hansen, (Neb.) 49 N. W. 456. 4. The fact that a person cuts hay on uninclosed lands, lets his cattle roam over and pasture upon it, just as they pasture on adjacent uninclosed lands, and prevents people from cutting and stealing wood on the land, is not sufficient Stees, (Minn.) 49 N. W. 662. to constitute adverse possession.-Lambert v. Possession under tax-deed. 5. A recorded tax-deed, valid upon its face, of wild and unoccupied land, carries constructive possession of such land.-Cornell University v. Mead, (Wis.) 49 N. W. 815. 6. The grantee in a recorded tax-deed of wild and unoccupied land, before the statute of limitations had run, and in order to avoid suit by the original owner, orally agreed with him to quitclaim any interest under the tax-deed on paythat the agreement was a waiver and extinguishment of the amount advanced for taxes. Held, ment of the constructive possession of, and a surrender of all claim of title to, the land claimed under such tax-deed.-Cornell University v. Mead, (Wis.) 49 N. W. 815. Continuity-Purchase at tax-sale. 7. One in the adverse possession of land does not break the continuity of possession by purchasing the land at tax-sale, and receiving a taxdeed therefor, as he has the right to rely on his adverse occupation, and aiso on his tax-title.Omaha & Florence Land & Trust Co. v. Hansen, (Neb.) 49 N. W. 456. Evidence of claim of ownership. 8. A claim of ownership of lands may be shown by general reputation.- Sanscrainte v. Torongo, (Mich.) 49 N. W. 497. Payment of taxes. 9. Payment of taxes on swamp land by a railroad company and its grantees during the time the land was owned by a county under a grant from the state of all swamp land does not affect the rights of the county's grantee, as the land was exempt from taxation while owned by the county.-Hays v. McCormick, (Iowa,) 49 N. W. 69. Effect. 10. One who has been in the actual, open, exclusive, adverse possession of lands, as owner, for 10 years, thereby acquires an absolute title in fee, free from the lien created by a tax-deed on the property, issued more than 10 years before the commencement of the action to foreclose such tax-deed. D'Gette v. Sheldon, 27 Neb. 829, 44 N. W. 30; Alexander v. Wilcox, 30 Neb. 793, 47 N. W. 81, followed. Alexander v. Meadville, (Neb.) 49 N. W. 1123. Affidavit. By claimant of lien, see Mechanics' Liens, 10–12. In mandamus proceedings, see Mandamus, 16, 17. of juror to impeach verdict, see New Trial, 5. Record on appeal, see Appeal, 20-23. Agency. 2. Where the tenant, after the expiration of his lease, holds, for more than 15 years, under See Principal and Agent. Aider by Verdict. See Pleading, 16. Alcoholic Liquors. See Intoxicating Liquors. Alimony. See Divorce, 7. In criminal cases, see Criminal Law, 29. Review, burden of proof, see Evidence, 2. 1. JURISDICTION. Appealable judgments and orders. 1. Where the judge of a circuit court, acting under Laws S. D. 1890, c. 79, § 1, which permits the judge of one circuit, at the request of the judge of another circuit, in case of his absence or disqualification, to hear and determine any motion or application, etc., grants an application for a writ of mandamus while within the limits of his own circuit, in an action pending without, the order is an order of the judge and not of the Interlineation by agent without author- court, and is not appealable.-Holden v. Haserodt, (S. D.) 49 N. W. 97. ity. ALTERATION OF INSTRU MENTS. 1. An interlineation made in a bond, after its execution, by an agent of the obligee, without authority, will not operate to invalidate the bond, but is only an act of spoliation.-White SewingMach. Co. v. Dakin, (Mich.) 49 N. W. 583. Materiality. 2. How. St. Mich. §§ 7737-7739, provide that, when an action shall be prosecuted for any penal sum for the non-performance of any covenant, plaintiff shall assign the specific breaches for which the action is brought, and that if the jury on the trial find that any assignment is true, and that plaintiff shall recover damages therefor, they shall assess such damages, and specify the amount in their verdict, and that the verdict of the jury shall be entered of record, and judgment rendered for the penal sum found to be forfeited. Held, that an interlineation in a penal bond, after execution, of the words, "together with 10 per cent. attorney's fees, " will not inval idate the bond, as the recovery is limited to the penalty by the above statutes.-White SewingMach. Co. v. Dakin, (Mich.) 49 N. W. 583. Alteration of note by holder. 3. Where the holder of a note alters or changes it in any material part to his own advantage, with intent to defraud his debtor, the debt evidenced by the note is extinguished.Warder, Bushnell & Glessner Co. v. Willyard, (Minn.) 49 N. W. 300. Presumption of fraud. 2. A transcript of the proceedings at a trial, embracing the evidence as extended by the stenographer, but containing no specifications of errors of law, ordered by the judge to be annexed to the judgment roll, is neither a bill of exceptions nor statement of the case, and constitutes no part of the judgment roll within Comp. Laws Dak. 1887, § 5103, which provides that the clerk shall attach together, as constituting the judgment roll, the summons, the complaint, pleading, etc., and "all orders or papers in any way involving the merits, and necessarily affecting the judgment," and such order is not appealable under section 5237, providing that the supreme court may review any intermediate order of the court below involving the merits, and necessarily affecting the judgment.-Wood v. Nissen, (N. D.) 49 N. W. 103. 3. An order of a judge of a district court overruling a motion to vacate a temporary injunction granted at the commencement of the action is not a final order, and cannot be reviewed until the final determination of the cause in the district court. - Clark v. Fitch, (Neb.) 49 N. W. 374. 4. A demurrer to a supplemental bill, which alleges that complainant is not entitled to file said bill, or any bill which entitles him to the relief therein prayed for, is a special demurrer, and no appeal lies from an order overruling the same.-Taylor v. Taylor, (Mich.) 49 N. W. 519. Order appointing receiver. 5. In an action involving the right to cer 4. In an action on a debt, the written evi dence of which has been materially altered to claimed a lien on them for services rendered to tain securities, then held by a third person, who the holder's advantage, the alteration will be defendant, an order appointing a receiver to take presumed to have been fraudulent, so as to ex-possession of the securities during the pendency tinguish the debt, and the burden is on plaintiff of the suit is interlocutory and discretionary, and to show absence of fraud.-Warder, Bushnell & an appeal will not lie.-Brown v. Vandermeulen, Glessner Co. v. Willyard, (Minn.) 49 N. W. 300. 49 N. W. 920, 41 Mich. 418. Appeal before taxation of costs. 6. Under Comp. Laws S. D. § 5214, giving the right of appeal from "any judgment" of the circuit court, and section 5024, defining a judgment as "the final determination of the rights of the parties in the action," an appeal will not be dismissed because taken before the costs and disbursements in the court below are taxed and inserted in the entry of the judgment appealed from.-Williams v. Wait, (S. D.) 49 N. W. 209. Appeal from justice of the peace. All 7. Code Iowa, § 3590, relative to appeals from justices of the peace to the circuit court, provid ing that "an appeal brings up a cause for trial on the merits, and for no other purpose. errors, irregularities, and illegalities are to be disregarded under such circumstances if the cause might have been prosecuted in the circuit court, "-does not authorize the circuit court to entertain an appeal where the justice had no jurisdiction of the subject-matter.- McMeans v. Cameron, 49 N. W. 856, 51 Iowa, 691. II. REQUISITES. Time of taking. 8. Under Code Neb. § 895, which provides that in computing time the first day shall be included and the last excluded, a petition in er |