tion, while limiting the amount of bonds that may be voted to 10 per cent. of the assessed valuation, which by a two-thirds vote may be increased to 15 per cent., provides that "no bonds or evidences of indebtedness so issued shall be valid unless the same shall have indorsed a certificate, signed by the secretary and auditor of state, showing that the same is issued pursuant to law." In 1883 the legislature passed an act "to authorize counties to issue bonds for refunding their bonded indebtedness, and provide for registering and certifying the same, and for levying a tax to pay the interest and principal thereof." Section 5 of the act provides that "it shall be the duty of the auditor of state to register such substituted bonds, and of the secretary and auditor to certify the same," etc. Section 3 of the "Act to authorize the registration, collection, and redemption of county bonds," which took effect February 25, 1875, provides that "the auditor shall be entitled to a fee of one-fourth of one per cent. upon the dollar for each bond so registered, to be filed by the holder thereof." This provision has not been repealed, and is still in full force. The word "holder" evidently means the person presenting the bonds for registration, whether it be a corporation or a natural person. If a county desire to refund its bonded debt, it will seek to do so because of the supposed advantage to be gained thereby. If expenses are to be incurred in certifying the new issue of bonds, it would seem but just that the party to be benefited should sustain the same, and not the people of the state at large. The fees thus paid to the auditor are to be turned into the treasury of the state, and are not for his personal benefit; but it is nevertheless his duty to collect the same. State v. Leidtke, 12 Neb. 171; S. C. 10 N. W. REP. 703.

As the county refused to pay the fees provided in the statute for registering the bonds in question, and as it was not his duty to register the same without the payment of such fees, the writ must be denied.

HENDRIX v. Boggs.

Filed May 28, 1884.

1. ESTATES OF DECEDENTS-PROBATE OF WILL AND ISSUE OF LETTER-EVIDENCE OF DEATH OF TESTATOR.

The probate of a will and the issuing of letters testamentary are prima facie evidence of the death of the testator.

2. TAXATION-NOTICE OF EXPIRATION OF TIME FOR REDEMPTION.

Notice of the time when the redemption of land from tax sale will expire, must be given by the tax purchaser or his assignee before the expiration of the time to redeem.

3. SAME-TAX DEED-SEAL OF COUNTY TREASURER.

Where the law requires a tax deed to be executed under the seal of the county treasurer, a scroll is not sufficient.

Error from Sarpy county.

Clarkson & Hunt, for plaintiff. W. J. Connell, for defendant. MAXWELL, J. This is an action of ejectment brought by Boggs against Hendrix to recover the possession of certain real estate in Sarpy county. Hendrix, in his answer, claims the land under a tax deed dated April 24, 1877, and possession thereunder for more than three years. On the trial of the cause, however, no such deed was offered in evidence, but one dated January 25, 1881, upon a sale which took place on the sixth of November, 1878. The deed was excluded and judgment entered in favor of Boggs. The errors relied upon in the brief of the plaintiff will be considered in their order. 1. Boggs claims title to the premises through a deed from William Dorsheimer and wife and Elizabeth Clifton, heirs and devisors of one Phillip Dorsheimer, who resided in Erie county, New York, and where what purports to be his last will, devising said real estate to William Dorsheimer et al.,

was admitted to probate. This will was afterwards admitted to probate in Sarpy county, and a copy thereof introduced in evidence. It is claimed that this was error without proof of the death of William Dorsheimer. There seems to be a conflict in the authorities, in this country, at least, as to proof of the death by letters of administration. To some extent this conflict may be explained by the difference in the procedure at common law and under statutes. At common law the will itself is the primary evidence as to lands; therefore, if there are several executors, though some of them are minors, or have not proved the will, still all must join in an action, (3 Washb. Real Prop. 684; 9 E. C. L. 317, 369;) but under our statute executors derive their title and authority from the letters testamentary, and only such as have taken out letters can join in an action; in other words, have the right to act as executors. In order to authorize a court to grant letters testamentary, a petition must be presented to it alleging, among other things, the death of the testator, and the court, before admitting the will to probate, must so find. This is sufficient in the absence of any opposing proof. 1 Greenl. Ev. § 550, and cases cited. The will was therefore properly admitted in evidence.

2. It is claimed that the court erred in sustaining the objections to the tax deed, of which there are 14. But two of these will be noticed, as they are fatal to the validity of the deed: First, that no proof was offered showing that notice had been given to occupants of the lands of the time when the redemption would expire. Section 3, art. 12, of the constitution provides "that occupants shall, in all cases, be served with personal notice before the time for redemption expires." The provision is mandatory, and applies to all sales which took place after the constitution of 1875 took effect. And it devolves on the purchaser at tax sale, or his assignee, to give the notice. The statute of 1879 makes the tax deed in the form provided by statute evidence of the service of notice or publication. But the deed in question does not state that the holder of the certificate has complied with the laws of the state to entitle him to a deed, or words to that effect, therefore the proof that notice was duly given devolves on him. The notice, to be effectual, also, to entitle a party to a deed, must be given before the time to redeem expires. Neither of these facts appear, and the failure is fatal to the tax deed. The statute also requires the treasurer to execute the deed under his seal. This is not a scroll, but the seal of his office. No seal was attached to the deed in this case. The plaintiff is entitled to foreclose his lien for taxes, but as he has not sought that relief in this case, it cannot be granted. There is no error in the record and the judgment is affirmed.

ELSHIRE v. SCHUYLER.

Filed May 27, 1884.

1. INTOXICATING LIQUOR-INTOXICATION OF HUSBAND-ACTION BY WIFE AGAINST PERSON FURNISHING LIQUOR.

When by reason of intoxication a husband is rendered incapable of providing for his family, the wife may recover against the person furnishing the liquor for the loss of the means of support during such intoxication.

The statute in effect declares the act of producing intoxication a wrong, and makes every one who has contributed to it by furnishing intoxicating liquor a wrong-doer and liable.

3. SAME

LOSS OF SUPPORT-DAMAGE-INJURY TO WIFE FROM OVERWORK.

In an action for loss of means of support, injury to the wife's health caused by overwork is not a proper element of damage.

Error from Richardson county.

C. Gillespie and E. W. Thomas, for plaintiff. Aug. Schoenheit and Isham Reavis, for defendant.

MAXWELL, J. This action was brought by Mrs. Ida B. Schuyler, for herself and children, to recover damages of the defendant for loss of means of support from May 1, 1881, to April 28, 1882, caused by the sale of beer by Elshire to her husband. Mrs. Schuyler in her petition alleges that Elshire began making and selling beer in Rulo about May 1, 1881, and from that time until the commencement of the action (April 28, 1882) had continually sold beer to Samuel H. Schuyler, her husband, while he was intoxicated, and in quantities sufficient to produce intoxication, thereby rendering him incapable of earning a support for his family. To this petition Elshire answered in substance that he had been engaged in manufacturing beer in Rulo since July, 1881, and that Samuel H. Schuyler may have got beer in small quantities from him, but that he had not sold to said Schuyler while intoxicated, nor in quantities sufficient to produce intoxication. On the trial of the cause a verdict was rendered in favor of Mrs. Schuyler for $300.

It is contented on behalf of Elshire that as the intoxication of Schuyler did not cause his death, that therefore the action cannot be maintained. But this position is entirely untenable. If by means of beer, or other intoxicating drink sold by Elshire to Schuyler, he has been rendered incapable of providing for his family, to the extent of the loss of means of support thus occasioned, the wife may recover, whether it be for a day, month, year, or longer period.

2. The answer admits selling beer to Schuyler, but denies selling the same to him when intoxicated, or in quantities sufficient to produce intoxication. Our former statute made the liability of the person selling liquor depend upon these conditions, (Roose v. Perkins, 9 Neb. 304; S. C. 2 N. W. REP. 715;) but the statute of 1881 contains no such qualification. It, in effect, declares the act of producing intoxication a wrong, and makes every one who has contributed to it by furnishing intoxicating liquors a wrong-doer, and liable. Kerkow v. Bauer, 18 N. W. REP. 27. If injury to the means of support of the wife resulted from such sale, she may recover.

3. The court instructed the jury that "any injury to the health of the plaintiff, occasioned by overwork or excessive labor beyond her physical ability to perform, made necessary by the failure of her husband to support her and her children on account of the continued use of intoxicating liquors of any kind, whether obtained wholly or only in part from the defendant, is a proper element of damages to be considered by the jury." This was clearly erroneous. The action is for loss of means of support, not for wounded feelings or injured health caused by the failure to provide, and to the extent of the loss of support sustained the wife may recover. For the error in giving this instruction the judgment must be reversed and a new trial awarded.

WHITE v. GERMAN INS. Co.

Filed May 29, 1884.

JUSTICE OF PEACE-SERVICE OF SUMMONS-JURISDICTION.

In cases where a justice of the peace has cognizance, a summons served three days before the time set for trial is sufficient to give the justice jurisdiction.

Error from Kearney county.

Joel Hull, for plaintiff. W. W. Wood, for defendant.

MAXWELL, J. On the twenty-fourth of June, 1882, the defendant in error commenced an action against the plaintiffs in the county court of Kearney county, upon a promissory note, to recover the sum of $12.50. Summons was thereupon issued, returnable on the twenty-ninth of that month. The return is as follows: "Received this summons, twenty-sixth day of June, 1882, and I hereby certify that on the same day I served the same on the

within-named John E. White by delivering to him a true and certified copy of a summons, and on the within-named R. W. White by leaving a certified copy at his usual place of residence." On the return-day of the summons the following motion was filed: "John E. White makes special appearance for himself and by his attorney, and objects to the jurisdiction of the court for want of service, and states that the officer served the summons in this action upon him personally by handing him a copy at about 2 o'clock P. M. on the twenty-sixth day of June, 1882." The justice overruled the objection, and rendered judgment in favor of the defendant in error, which judgment was affirmed by the district court.

The errors assigned in this court are in substance that the court below had no jurisdiction. A motion should specifically point out the very objection made. Courts do not look with favor upon technical motions or pleas, and if such are overruled, it must appear that the party complaining has sustained injury thereby. The objection made in this case undoubtedly was intended to apply to the time of service of summons. Section 911 of the Code provides that "the summons must be returnable not more than twelve days from its date; and must, unless accompanied by an order of arrest, be served at least three days before the time of appearance," etc. Section 895 provides that "the time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last," etc. This is not a new question in this state. The Justices' Code has been in force about 25 years, and the almost invariable practice under it has been to make the summons returnable on the fourth day from the date of service; that is, excluding the first day or day of service and including the last. This being the general construction placed upon the statute, and as the validity of judgments depend thereon, we do not think it proper at this time to give the language a differont construction. We therefore hold that the service was made a sufficient length of time before the return-day to give the court jurisdiction.

The judgment must therefore be affirmed.

WILLIAMS v. BATES.

Filed May 29, 1884.

FRAUD-SALE OF NOTE ALREADY PAID-RECOVERY.

One B., having a note of D. in his possession, which he had paid in full out of funds of D. in his hands, afterwards sold the note to W., representing it to be a valid and subsisting obligation against D., and that D. resided near F., in this state, all of which was untrue. Held, that W. could recover the consideration paid to B. for the notes.

Error from Jefferson.

S. N. Lindley, for plaintiff. W. H. Snell, for defendant.

MAXWELL, J. This action was commenced in the county court of Jefferson county, to recover the sum of $85 and costs. The defendant demurred to the bill of particulars, and the demurrer was sustained and the action dismissed. The district court affirmed the judgment of the county court.

This being a case where a justice of the peace has cognizance, neither the statute nor the practice in justices' courts authorizes a demurrer to a bill of particulars. This objection, however, was not urged in the brief of either attorney, and will not be interposed by the court.

It is alleged in the bill of particulars that on or about the eighteenth day of April, 1880, the defendant purchased of the plaintiff certain real estate, and in part payment therefor sold to the plaintiff a promissory note for $82, given by one E. W. Davis to B. S. Barker or bearer; that the defendant represented that said note was good and valuable, and worth its face, and that Davis, the

maker thereof, resided near Fairbury, Nebraska, and the defendant "knew of no reason why the note should not be promptly paid when due;" that at the time of making these representations the defendant well knew that said note had been paid and the security released, and that said note was worthless, for the reason that Davis, the maker thereof, had fully paid the same to the defendant. There is also an allegation that the defendant had assumed the payment of the note, and had, with funds received from Davis, paid the same in full. It is alleged that Davis is not a resident of the state, and that said note has not been paid to the plaintiff.

In Pasley v. Freeman, 3 Term R. 51, it was held that a false affirmation, made by the defendant with intent to defraud the plaintiff, whereby the plaintiff receives damage, is the ground of an action of deceit. This case was cited with approval in Upton v. Vail, 6 Johns. 181, where it is said that case (Palsley v. Freeman) went, not upon any new ground, but upon the application of a principle of natural justice, long recognized in the law, that fraud or deceit, accompanied with damages, is a good cause of action. See, also, cases cited in Smith, Lead. Cas. (6th Ed.) 176–186.

The rule is well settled that a false affirmation as to existing facts, made by a party with intent to defraud another, and by which he is defrauded, is actionable. Now, if the allegations of the petition are true, the defendant, who had assumed the payment of a note, and had paid the same out of funds of the maker in his hands, sold such note to the plaintiff, at the same time representing to him that it was a valid and subsisting obligation, and that he had no reason to doubt that it would be paid when due, and that the maker was a resident of this state. Whatever the rights of the plaintiff may be, as against the maker of the note, which we need not now determine, the defendant knew that his representations in regard to the note, and by which the plaintiff was induced to purchase the same, were false, and that the note had been paid in full. This being so, the defendant had no right to sell and transfer it to the plaintiff, and, as the plaintiff is alleged to have sustained injury thereby, he may recover against the defendant.

The judgment of the district court, and also of the county court, is reversed, and the cause remanded for further proceedings.

SET-OFF-DRAFT EVIDENCE.

SHAPLEIGH v. DUTCHER.

Filed May 29, 1884.

About the first of December, 1881, one D. sent a money order for $3.00 to S. & Co., of St. Louis. A receipt for $300 was returned. D. alleged that on the same day on which the money order was sent he forwarded to S. & Co. a draft for $300 which he had received in the spring of 1880. Hell, that the evidence failed to show that the draft in question was sent.

Error from Jefferson county.

Harwood & Ames and W. H. Snell, for plaintiff. W. O. Hambel, for defendant.

MAXWELL, J. The plaintiffs brought an action against the defendant to recover the sum of $97.92 upon an account. The defendant in his answer admitted the account to be correct, but set up a set-off of $300. On the trial of the cause the jury found a verdict for $200 in favor of the defendant.

The principal error relied upon in this court is that the verdict is unsupported by the evidence. The date of the first item in the account is December 22, 1881, and of the last, March 23, 1882. It appears that prior to the date of this account the defendant had dealt to a very limited extent with the plaintiffs; that early in December, 1881, he sent the following letter to the plaintiffs: