In a suit upon a bond executed under the 5th section of the “ Dram Shop Act,” exemplary damages can not be recovered, but actual damages only, and such as the party, for whose use the suit is brought, may sustain, either in person, property or means of support.
Under section 9,—and under which section most actions against dram shop keepers are brought,—such damages may be recovered, if actual damages shall be proved. It was error, •therefore, to instruct the jury, in an action of debt on the bond, exemplary damages might be given.
' It is objected, this cause was not tried by the judge of the court, but, by consent of parties, was tried by a member of the bar. the judge doing nothing more than rendering the judgment.
We have said, in other cases like this, that counsel can not clothe a person with judicial power to be exercised in this mode, and we adhere to what has been said on this point. Hoagland v. Creed, 81 Ill. 506, and Bishop v. Nelson, 83 ib. 601.
For these reasons, the judgment is reversed and the cause remanded.
Judgment reversed.