been given. We think, however, that the evidence was properly admitted. One of the material facts which plaintiff was required to establish is that during the period in question she was not supported by her husband; and the evidence objected to tended to establish this fact by showing the sources from which her support came; and while the instruction asked, as an abstract proposition, is correct, and might properly have been given, we think defendant was not prejudiced by the refusal of the court to give it. The jury were told, in the instructions given them by the court, that plaintiff's claim for actual damage was for injury to her means of support, and that unless she had established that she had been injured in her means of support by the wrongful acts of defendant complained of, she was not entitled to recover. The jury could not have misunderstood these instructions. Having told the jury that plaintiff's right to recover actual damages depended on whether she had proven that by the wrongful acts of defendant she had been injured in her means of support, and that unless she had proven that fact their verdict should be for defendant, it was unnecessary for the court to tell them that she could not recover on account of other matters which clearly did not pertain to her means of support. The idea that plaintiff could recover for wounded feelings, or loss of social standing, because of her husband's habits of intoxication, is as clearly excluded by the instructions given as by the one asked by defendant.

2. The district court gave the following instruction to the jury: “(5) If, from the evidence in this case, you find that defendant sold plaintiff's husband intoxicating liquors known as whisky, within the time stated in the petition, and that the same caused or contributed to his intoxication, habitual or otherwise, and that, by reason thereof, plaintiff was injured in her means of support, then the defendant would be liable for the actual damages sustained by plaintiff in her means of support which were caused by such intoxication, and for exemplary damages as well."

Defendant assigns the giving of this instruction as error.

One ground of objection to the instruction urged in argument is that under it the jury were warranted in assessing exemplary damages against defendant, regardless of whether the act which occasioned the actual damages was done maliciously, or wantonly, or recklessly; appellant's position being that exemplary damages are recoverable only in cases where the wrongful act which causes the actual injury is prompted by a spirit of malevolence, or is committed in wanton or reckless disregard of the rights of others. It is true that damages of this character are ordinarily assessed against wrong-doers by way of punishment for the malignant or evil disposition or motive which has prompted or characterized their conduct. In this class of cases, however, the assessment of such damages is authorized by express statutory enactment. Code, § 1557. This section occurs in the chapter of the Code which prohibits the sale, as a beverage, of all intoxicating liquors except beer and wine. The statute is penal, and it was doubtless the intention of the legislature, when it enacted the provision making the violators of the law liable in damages to those who suffer in consequence of their unlawful acts, and authorizing the assessment of exemplary as well as actual damages in such cases, that such damages should be assessed by way of punishment for the criminal misconduct of which they are guilty. And, whatever may be the ground on which such damages are ordinarily assessed, we think it clear that, under this provision, they may be assessed in every case where there has been a willful violation of the statute which has occasioned an injury for which a right of action is given by the statute.

Another ground of objection urged against this and other instructions given is that under them plaintiff is entitled to recover on proof simply of sales of intoxicating liquors by defendant to her husband, and of injury in consequence thereof. It is claimed that the instructions, in this respect, are not different

from those disapproved in Welch v. Jugenheimer, 56 Iowa, 11; S. C. 8 N. W. REP. 673. Under the instructions in that case plaintiff was allowed to recover on proof of the unlawful sale by defendant of intoxicating liquors to her husband, and of injury to her means of support in consequence thereof, and it is held that under the statute (Code, § 1557) the intoxication of the husband caused by the liquors sold him by defendant is an element of the right to recover, and that the instructions were erroneous, because this element was omitted from them. But in this case this is stated in all the instructions as an element of plaintiff's cause of action.

3. The district court gave the following instruction to the jury: "Should you find the plaintiff entitled to recover actual damages, she will be entitled to exemplary damages as well. In giving exemplary damages you are not limited to actual compensation, but, blending together the rights of the injured party, and the interests of community, you may give such a verdict as will compensate her for the injury, and, at the same time, inflict some punishment to the defendant for his wrongful act."

Defendant assigns the giving of this instruction as error.

The objection urged in argument against the instruction is that it holds, in effect, that plaintiff, if she is entitled to recover, is entitled to exemplary damages as a matter of right, while the true rule, as defendant contends, is that the question whether exemplary damages shall be assessed in any case is left to the discretion of the jury.

*

The remedy which plaintiff seeks to enforce in this action, as we have seen, is created by Code, § 1557. That section provides that "every person who shall be injured * * in his means of support by the intoxication of another shall have a right of action against any person who shall, by selling intoxicating liquors, cause the intoxication of such person, "for all damages actually sustained, as well as exemplary damages. It cannot be denied that the language of the section is quite as broad as that of the instruction, and, in the opinion of the majority of the court, its effect is to create, in favor of the person who has a cause of action under the section, a right to have exemplary damages assessed against the wrong-doer. The writer hereof does not concur in this view. In my opinion, the intention of the legislature in enacting the provision in question was simply to provide that exemplary damages might be assessed in this class of cases, and that it was not intended to change the general rule with reference to exemplary damages, viz., that the question, whether such damages shall be assessed at all, and, if assessed, the amount of such assessment is left, under proper instructions by the court, to the discretion of the jury.

4. One of the grounds of a motion for a new trial is that the verdict is not the deliberate judgment of the jury; that it was communicated to one of the jurors during the deliberations of the jury, after the cause was submitted; that his father was dangerously sick, and this communication had the effect to unfit the person for deliberate action; that he was for finding a verdict for defendant, and held out as long as he thought he could remain away from his father, and then reluctantly agreed to the verdict, not as his deliberate judgment, but because he felt he could not longer remain away from his sick father. The motion was supported on this ground by the affidavit of the juror. The court, on the plaintiff's motion, struck the affidavit from the files, and this action of the court is assigned as error. We think it was clearly correct. The juror having assented to the verdict, he could not afterwards be heard so say that his judgment did not approve it. which he agreed to the verdict is a matter which essentially his affidavit cannot be received to explain or contradict it. M. Telegraph Co. 20 Iowa, 195.

The ground on inheres in it, and Wright v. I. &

We reach the conclusion that the judgment of the district affirmed.

court must be

SUPREME COURT OF NEBRASKA.

ANDERSON v. Cox.

Filed May 29, 1884.

1. PRACTICE-JURY-CREDIBILITY OF WITNESS.

The credibility of witnesses is peculiarly a question for a jury.

2. PRINCIPAL AND AGENT-SALE OF LAND BY AGENT.

A land-owner employed an agent to sell his real estate upon commission. The agent advertised the land at his own expense, and a neighbor, seeing the advertisement, directed a buyer to the farm, and thereby a sale of the land was effected. There being a dispute as to the contract between the land-owner and the agent, held, that the sale, being effected through the agent's advertisement, constituted a strong equity in his favor.

Error from Seward county.

Leese & Lewis, for plaintiff. R. S. Norval, for defendant.

tate.

MAXWELL, J. This is an action to recover commission for selling real esThe plaintiff was the owner of a farm containing 240 acres near Seward, and employed the defendant, who was a land agent at Seward, to sell it. There is a dispute as to the price at which it was to be sold; the plaintiff saying the price was $26 per acre, while the defendant contends it was $25 per acre. The defendant advertised the land by description in his real estate papers, and claims to have pointed it out to Mr. Nelson, who afterwards purchased it at $25 per acre. Mr. Nelson's testimony is that Mr. Cox did not point out the Anderson farm to him, but that he went to the house of Mr. Smith, about two and one-half miles from Seward and adjoining the Anderson farm, and Mr. Smith informed him that the Anderson farm was for sale; that he had seen the advertisement of it in his (Cox's) paper. "I says, 'How long ago;' and he said, ‘A little in last week's paper.' Nelson thereupon went to Mr. Anderson's house and bought his farm at $25 per acre. court below rendered judgment in favor of the defendant in error.

The

The principal ground of error is that the finding is against the weight of evidence. The case is peculiarly one for a jury to pass upon, as the principal question is the credibility of the witnesses. But if we exclude the testimony of the plaintiff and defendant, still the testimony of Mr. Nelson shows that he was informed that the land in question was for sale through the advertisement of Mr. Cox. This was published at his own expense, and the testimony shows it was the means by which the sale was effected. This is not denied, and certainly constitutes a strong equity in favor of Mr. Cox, whatever the contract may have been.

There is no error in the record, and the judgment is affirmed.

MCMAHON v. SPEILMAN.

Filed May 29, 1884.

1. HOMESTEAD JUDGMENT-ABANDONMENT.

Judgments were recorded against M. and W. in the county court, in March, 1877, and transcripts thereof filed in the district court in April of that year. In June following, M. and wife conveyed their homestead to one S., who immediately reconveyed to the wife of M. No consideration was paid, nor change of possession, and the premises continued to be occupied as the family homestead of M. Held, that the conveyance to S. was not an abandonment of the homestead, and it was not liable for the satisfaction of the judgments.

2. SAME INTEREST OF WIFE.

A wife may claim the right of homestead.

Appeal from Platte county.

M. Whitmoyer, for plaintiff. Byron Millet, for defendant. MAXWELL, J. In March, 1877, Steele and Johnson recovered two judgments against John C. McMahon and John C. Walful in the county court of Platte county, one of said judgments being for the sum of $103.50, and the other for $104.65. Transcripts thereof were duly filed in the office of the clerk of the district court on the thirteenth of April of that year. At that time the plaintiff, John McMahon, owned two-thirds of a lot in Columbus, with the building thereon, which was occupied as a home by himself and family. On the fourth of June, 1877, McMahon and wife conveyed the premises in question to one Griffin, and Griffin and wife immediately reconveyed the same to Mary McMahon, the wife of John C. McMahon. The testimony tends to show that the conveyances were made and delivered at the same time, and were without consideration, and were made for the sole purpose of putting the title in the name of the wife. The premises then were, and ever since have been, occupied as a homestead for the family. In December, 1881, executions were issued on the above judgments and levied on the premises in question. The plaintiffs thereupon instituted this action, stating the above and other facts, and praying for an injunction. A temporary order was granted, which, on the trial, was made perpetual. The defendants appeal to this court. The only ground upon which they claim the right to sell the premises in question is because of the conveyance from McMahon and wife to Griffin. Had the premises actually been sold to Griffin, and ceased to be the plaintiff's homestead, there is no doubt that they would have been liable for the satisfaction of the judgments in question under the statute as it existed at the time the transcripts were filed. But the testimony shows there was no sale to Griffin; he was a mere conduit for the transfer from John McMahon to Mary McMahon. Whatever the right of this transfer may have been, it did not affect the right of homestead, as the wife equally with the husband may claim such right. As the premises in question have not been conveyed to strangers, nor ceased to be the plaintiff's homestead, the right of the defendants to levy an execution on said premises did not accrue, it not appearing that the value exceeded the limit of the statute.

There is no error in the record, and the judgment is affirmed.

COLLINS v. STEWART.

Filed May 29, 1884.

ATTACHMENT-AFFIDAVIT TAKEN BEFORE ATTORNEY.

An affidavit taken before an attorney in the case may on motion be stricken from the files.

Error from York county.

Sedgwick & Power, for plaintiff. France & Harlan, for defendant. MAXWELL, J. The plaintiff commenced an action by attachment against the property of the defendant upon the ground that he was a non-resident. The defendant appeared in the action and denied that he was a non-resident, and filed certain affidavits tending to show that he was a resident of the state, and on the hearing the court so found and discharged the attachment. Two of the principal affidavits, filed by the defendant to show that he was a resident of the state, were sworn to before the attorney for the defendant. The attorneys for the plaintiff moved to strike these affidavits from the files for that reason. The motion was overruled, to which the plaintiff excepted, and now assigns the same for error.

Section 376 of the Code provides that the officer before whom depositions are taken must not be a relative or attorney of either party, or otherwise in

terested in the action or proceeding. Section 371 provides that an affidavit may be made, in and out of this state, before any person authorized to take depositions, etc. The statute merely adopts the rule of the common law. Taylor v. Hatch, 12 Johns. 340; King v. Wallace, 3 Term R. 403. If a deposition must be taken before an entirely disinterested party,-one having no motive to color the evidence,-how much more important that the person before whom an ex parte affidavit is taken shall be free from interest and bias.

The court should have stricken the affidavits in question from the files, and for its failure to do so the judgment is reversed, and the cause remanded for further proceedings.

SEWARD v. DIDIER.

Filed May 27, 1884.

1. GUARDIAN AND WARD-APPLICATION FOR APPOINTMENT-JURISDICTION.

When a petition for the appointment of a guardian for a child six or seven years of age was signed in the name of the child, and a guardian was appointed and gave bond, etc., held, sufficient to give the court jurisdiction.

2. SAME-LICENSE TO SELL REAL ESTATE-SALE.

When the records of the probate court showed a license to a guardian to sell the real estate of his ward, a sale and confirmation thereof, and the execution of a deed to the purchaser, it will be presumed 22 years afterwards, in an action by the ward to recover the land, that the necessary steps were taken to procure the issuing of the license.

3. SAME

SETTLEMENT-RATIFICATION-DISCHARGE OF GUARDIAN.

A settlement by a ward after he comes of age with his guardian, acceptance of the proceeds of sales made by him, and discharge of the guardian and sureties on his bond, is a ratification of his acts.

4. SAME-ACTION BY WARD-LIMITATIONS.

No action can be maintained by a ward to recover lands sold by his guardian unless the action is commenced within five years next after the ward comes of age.

Error from Richardson county.

Schoenheit & Thomas, for plaintiff. Martin & Gilman, for defendant. MAXWELL, J. This is an action of ejectment, instituted by Henry Didier against James A. Seward, to recover the N. of the S. W. of section 3, township 3 N., of range 16 E. Seward was in possession, claiming title under a warranty deed from Daniel Bernett, and he immediately notified Bernett to defend the action. Bernett, on his own application, was made a defendant, and the action then proceeded against both Seward and Bernett. On the trial of the cause a jury was waived, and the court found the issues in favor of Didier, and rendered judgment in his favor for the possession of the premises. Seward derives title through a sale of the land in controversy made by the guardian of Didier in the year 1860, Didier being at that time six or seven years of age. Three questions are presented: First, the validity of the guardian's sale; second, ratification of the sale by Didier after coming of age; third, whether the action is barred by the statute of limitations. These questions will be considered in their order.

It appears from the record that in January, 1860, a petition for the appointment of a guardian for Henry Didier was presented to the probate court of Richardson county. This petition cites the necessary facts showing the necessity for the appointment of a guardian for said minor. It was prepared by an attorney and signed in the name of the infant. The defendants contend that being so signed it is void. The record fails to show by whom the attorney was employed, nor is it necessary that it should do so. At common law there were three kinds of guardianship, viz.: guardian by nature, guardian by nurture, and guardian in socage. The guardian by nature is the father, and on his death, the mother. Guardian by nurture occurs only when the child has no other guardian, and terminates when the infant arrives at the