Suit by the State against the appellants for au alleged breach of the 'condition of a bond executed by *141Daniel MeGrimes and his sureties, under the requirements of the act to regulate the sale of spirituous liquors, approved March 5th, 1859. The breach assigned was the keeping a disorderly house. The defendants answered by the general denial. Trial by the court. Binding for the State, assessing the damages at forty dollars. Motion by the defendants for a new trial, for the following causes: first, error in overruling a demurrer to the complaint; second, “ error in finding any sum against the defendants, andgiving judgment for the plaintiff, when judgment should have been given against the State, and in favor of the defendants, because, at most, only nominal damages could be recovered on the evidence against the defendants.”

We have held that this action can be maintained for the breach complained of. The State v. Whitener, 23 Ind. 124.

The only open question is that as to the measure of damages. The fifth cause for a new trial in the code is, “ Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of property.” 2 G. & H. 212, sec. 352. cl. 5. The cause assigned for a new trial is not that the assessment was too largo, but that the court erred in assessing any amount. The reason given, that, “ at most, only nominal damages could be recovered,” is not, it is true, very cogent, but it is nevertheless given as a reason why the court erred in assessing any amount, and not as a cause for. a new trial. The question argued by counsel is not before the court.

The judgment is affirmed, with costs.