from the creditors. The restriction, then, must have reference to those who might otherwise take as distributees. The provision of section 2372 of the Code, that the avails of life insurance "shall in other respects be disposed of like other property left by the deceased," does not necessarily mean that it shall be distributed to the same class or classes of persons. The avails will, in some sense at least, be disposed of like other property left by the deceased, if distributed by the administrator to the persons entitled thereto under the law governing the distribution. It should be restricted to the classes named in section 1182, if both or one exists; but if not it should be distributed according to the general statute for the distribution of property. This construction gives each one of the sections in question a force of its own, and we think does violence to neither. Reversed. SARENA HUGGINS, Appellee, vs. MARCUS KAVANAGH, Appellant. Filed December 2, 1879. In an action under the statute by a wife, for damages resulting from the sale of liquors to her husband, held that evidence of the number, age and sex of the children was immaterial; the defendant in such action is liable only for damages to which he has contributed, and where an instruction authorized the jury, in case they were unable to separate the damages to which he had contributed from the entire damage sustained, to find against him for the whole amount, held, that it was erroneous.—[ED. Appeal from Polk circuit court. The petition contains several counts, and it is therein stated in substance that the defendant sold to the husband of the plaintiff, at various times between September, 1875, and March, 1877, intoxicating liquor, whereby he became intoxicated, and thereby the plaintiff and her family were injured in their means of support. There was a general denial of the allegations of the petition, trial by jury, verdict and judgment for plaintiff, and defendant appeals. B. A. Williams and Smith & Baylies, for appellant. M. D. McHenry & Son and Barcroft & Given, for appellee. SEEVERS, J. 1. Against the objection of the defendant the plaintiff was permitted to introduce evidence showing the number, ages and sex of her children. The object and purpose in the introduction of this evidence must have been to affect the question of damages. The thought, no doubt, was, that the extent of the recovery depended at least somewhat upon the number, age and sex of the children. We do not believe such is the law. The statute gives a right of action to every child injured in its means of support, as well as to the wife. Code, § 1557. As each has a right of action, neither can recover for damages sustained by the other. Nor can the plaintiff's damages be increased because she has a large number of children, or diminished because she has none; for her right to recover is based on the loss of means for her support, and not for the support of her children. The court below seems to have been of the same opinion, because the jury were instructed that the plaintiff could "not recover anything in this action on account of her children." It is difficult, therefore, to see why the evidence was admitted. Possibly the ruling was based on Ward v. Thompson, June term, 1878; but the ground upon which it was held the admission of the evidence in that case was justifiable did not exist in this, and the rule established should not be extended, as we think the cited case went to the verge, and beyond which we are unwilling to go. Whether the instruction cured the error in the admission of the evidence we do not determine, as it is unnecessary to do so. 2. The court instructed the jury as follows: "If you find from the evidence that the plaintiff has been damaged by the intoxication of her husband within the time stated in the petition; that such intoxication was on some occasions caused or contributed to by defendant, and on other occasions his intoxication was not caused or contributed to by the defendant, then, if you can do so from the evidence, you should apportion her entire damages so as to find only against the defendant for damages sustained by her, which were caused or contributed to by him; but if you cannot, from the evidence, separate the damages sustained by the plaintiff, caused or contributed to by defendant, then she will be entitled to recover for all damages that the evidence shows that she has sustained." It is not alleged in the petition that the damages are the result of a single sale or act of intoxication, but on the contrary, it is stated, there were a series of sales, covering a considerable period of time. Under such circumstances it has been held that a joint action will not lie against several wrong-doers. La France v. Krayer, 42 Iowa, 143. From this it follows that a "settlement with one does not bar an action against another." Jewett v. Wanshura, 43 Iowa, 574. And in Engleken v. Webber, 47 Iowa, 558, it was in substance held that the defendant was not liable for damages to which he did not contribute. This seems to be the thought of the instruction, unless the jury are unable to separate the damages to which the defendant contributed from those to which he did not. Then he is liable for the whole, no matter how small the damages may be to which he did contribute, when compared with the whole amount the plaintiff is entitled to recover. We do not believe this is the law. If it is, then a new rule, applicable to this class of cases alone, must be established. For this there is no warrant in the statute, and on principle or authority it cannot be maintained. The illustration in the opinion on rehearing in Engleken v. Webber, of the trespassing stock, fairly presents and illustrates the question under discussion. It may be difficult to ascertain the exact amount of damages each wrong-doer should pay, but this does not constitute a sufficient reason for making one pay damages for an act to which he did not contribute. The defendant was liable for all damages to which he contributed, and not for those to which he did not, and an instruction to this effect was all to which plaintiff was entited. All else was for the jury. Reversed. THE STATE OF Iowa, Appellee, vs. JOHN N. DAKIN, Appellant. Filed December 3, 1879. Affidavit for continuance considered, and held that upon the facts therein stated, and what appeared upon the record to have been the usual practice of the court below in setting down causes for trial, the motion for continuance should have been granted. Counter affidavits are not admissible upon a motion for continuance to contradict the statement of facts contained in the affidavit for continuance.-[ED. Appeal from Marshall district court. The defendant was indicted, tried, convicted and sentenced to the penitentiary for life, for the murder of one John K. Stough. He appeals to this court for a reversal of the judgment against him. James Allison and Henderson & Merriman, for appellant. J. F. McJunkin, Attorney General, for the state. ROTHROCK, J. The indictment was found at the April term, 1878, of the Marshall district court. The defendant was arraigned, pleaded not guilty, and by agreement the cause was continued to the next term, which occurred in October, 1878. The alleged crime was committed on the twenty-seventh day of March, 1878. At the October term the defendant filed a motion for a change of the place of trial, grounded upon the alleged prejudice of the inhabitants of Marshall county against him. The motion also alleged that the inhabitants of the county of Story were so prejudiced against him that he could not have a fair trial in that county. The requisite number of affidavits were filed in support of the motion. There were counter affidavits filed upon the part of the state. On the twenty-sixth day of October the motion was submitted to the court and was overruled. On the twenty-eighth day of October the defendant filed a motion for continuance, and in support thereof he filed therewith his affidavit in these words: “I, John N. Dakin, being sworn, say: That I am defendant. That I cannot safely proceed to trial at the present term by reason of the absence of material witnesses. That the names of said witnesses are Joseph Dakin, Harriet Dakin, Edward Dakin and Andrew Dakin. That their present whereabouts are unknown to me. That they resided until very recently in Liberty township, Marshall county, Iowa, and had resided in said township nearly two years, and in said county nearly twenty years. That said Harriet Dakin is wife of said Joseph Dakin, and said Edward and Andrew are their sons, and residing all in one family. That they removed from said Liberty township on or about the fourteenth day of October, 1878, with the intention, as I am informed and believe, to go to Jewell county, Kansas. That their intention to so remove before the present term of this court was not known to me. "That I did not learn, or know, or have any information, of their departure or intention to depart before the present term of this court, until the morning of Saturday, October 26, 1878, when I first learned they had gone. That I saw and conversed for a moment with said Joseph a short time before he went away, in the presence of several parties, at the door of the jail in this county, through the wicket. That I had opportunity to do no more than barely speak to him, and told him I would want him as a witness on the trial of the case. He replied that the case would not be tried here, and that he would not be needed at the next term of this court. That it was then my intention, and I believe he knew of it, to apply for a change of venue. That I didn't then know whether my trial would come at this term of the court, and didn't know or expect he intended to leave here immediately and before this court would convene. That I didn't have said witnesses subpoenaed, because I didn't then know whether said cause would be tried at this term of court, or when it would be tried, and because I supposed that, as they resided in the county, I could procure their attendance upon a few hours' notice, and because I expected my application for a change of venue would be granted. That I was surprised my application for said change of venue was refused by the court, and that my trial would come on this term, and because of all said matters I did'nt have subpœnaes issued for said witThat I expect to prove by said witnesses, Edward and Andrew, the following facts: On the evening of the alleged murder of John K. Stough they were at my barn, looking for a horse that had formerly been owned by me, and which they expected to find at my barn, and that on their return I accompanied them together to their father's house, a distance of about five miles from my residence and from the place where the body of John K. Stough was found the next morning. That in company with them I started on horseback-all on horseback-from my barn early in the evening, at or before 8 o'clock. That we went out directly to their father's (Joseph Dakin's) house. That I remained there a few minutes for the purpose of seeing if I could purchase a horse from Joseph, and between 8 or 9 o'clock9 probably-near 9, I left his house. That when they came to my barn that I was there at the barn and was preparing to go to Joseph Dakin's, getting my horse ready for that purpose, and that my wife was there with me at the time. "That I expect to prove said facts by each of said witnesses, and do not know of any other witness or witnesses by whom I can prove the same facts, except that I can prove by my wife that I was at the barn when they came, and by Joseph Dakin and his wife that I was at their house. That I expect to prove by Joseph Dakin that between the hours of 8 and 9 o'clock of the evening of the night on which John K. Stough was killed that I was at his house. That he and his wife had retired to bed before I arrived there. That I called him up and he came out, and I conversed with him a few minutes about purchasing a horse from him, and then left-about 9 o'clock or before. That I expect to prove by said Harriet Dakin that she knew my voice and heard me call, and heard me speaking with her husband, who stood in the door with the door open. That I also stood near the door. That it was about 9 P. M. That I am advised by counsel said facts are material. That said facts are true, and I do not know of any other witnesses by whom all of said facts can be proved. That this application is not made for |