l. practice in coun'^lssignverdict. ‘ I. The appellant assigns as error tliat the verdict was received in the night, when the court was not in regular session, and the jury discharged in the absence of the plaintiff and his counsel and without any notice to either of them. The evidence'as to the time and manner in which the verdict was received is contained in the affidavit of one of the jurors. The affidavit shows that “the jury agi’eed upon the verdict at three o’clock a. m.; that they then sent for the' judge of the court and he arrived and had them brought into the court room and then received their verdict and then and there discharged them; that there were present the judge of the court, the jury, and the bailiff who had them in charge, and none others.” It will be seen that the affidavit does not establish the fact upon which the assignment of error is based. It does not appear that the plaintiff and his counsel were not notified, and in the absence of such showing we could not say that the verdict was irregularly received.

II. The only other error assigned is that the court erred in rendering judgment against the plaintiff’s bondsmen for exemplary damages. Whether the court erred in that respect we need not determine. No exception was taken to the action of the court, and the question apjjears to be now raised for -the first time. Such being the condition of the record the judgment of the court below must be

AkfibÁed.