COAL IN CENTS PER TON OF 2,000 LBS.-Continued.

4086 SEC. 4. [Railroads exempt.] All railroads or parts thereof which have been built in this state since the first day of January, 1889, or may be built before the 31st day of December, 1899, shall be exempt from the provisions of this act until the 31st day of December, 1899.

4087 SEC. 5. [Rates, how raised.] Whenever any railroad company or companies in this state shall, in a proper action, show by competent testimony that the schedule of rates prescribed by this act are unjust and unreasonable, such railroad or railroads shall be exempt therefrom as hereinafter provided. All such actions shall be brought before the supreme court, in the name of the railroad company or companies bringing the same, and against the state of Nebraska, and upon the hearing thereof, if the court shall become satisfied that the rates herein prescribed are unjust in so far as they relate to the railroad bringing the action, may issue their order directing the board of transportation to permit such railroad to raise its rates to any sum in the discretion of the board; Provided, That in no case shall the rates so raised be fixed at a higher sum than that charged by such railroad on the first day of January, 1893. Whenever any railroad company in this state shall claim the benefit of the provisions of this section, it shall be the duty of such railroad company to show to the court all matters pertaining to the management thereof, and if it shall appear that said railroad company is operating branch lines of railroad in connection with its main line, and all included in one system, then, and in that case it shall be the duty of the railroad company to show to the court upon which branch or branches, or upon which portion of such system the schedule of rates prescribed in this act is unjust and unreasonable, and only such portions shall be exempted from the provisions thereof; Provided, That in no case shall a railroad company be allowed to pool the earnings of all the lines operated under one management where more than one line is so operated, for the purpose of lowering the general average.

4088 SEC. 6. [Changing rates and revising classification by Board of Transportation.] That the board of transportation is hereby empowered and directed to reduce the rates on any class or commodity in the schedule of rates fixed in this act whenever it shall seem just and reasonable to a majority of said board so

SEC. 6. See Neb. Tel. Co. v. Cornell, March 7, 1900.

to reduce any rate; and said board of transportation is hereby empowered and directed to revise said classification of freight as hereinbefore in this act established whenever it shall appear to a majority of said board just and reasonable to revise said classification; Provided, That said board of transportation shall never change the classification in this act established, so that by such change of classification the rates on any freight will become higher or greater than in this act fixed. When any reduction of rates or revision of classification shall be made by said board, it shall be the duty of said board to cause notice thereof to be published two successive weeks in some public newspaper published in the city of Lincoln, in this state, which notice shall state the date of the taking effect of such change of rate or classfication, and said change of rate or classification so made by the said board and published in said notice, shall take effect at the time so stated in said notice.

4089 SEC. 7. [Articles not enumerated, classification.] That articles not enumerated in said classification in section two (2) of this act established, not rated in said schedule of rates in section three (3) of this act shall be classed with analogous articles in said classification, and where there is any conflict between said classification and said schedule of maximum rates, said rates shall govern.

4090 SEC. 8. [Violation of act, damages, notice.] That in case any common carrier su' ject to the provisions of this act shall do, or cause to be done, or permit to be done any act, matter, or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing, in this act required to be done, such common carrier shall be liable to the person or persons injured thereby, for all damages sustained in consequence of any such violation of the provisions of this act together with cost of suit and a reasonable counsel or attorney's fee to be fixed by the court in which the same is heard on appeal or otherwise, which shall be taxed and collected as part of the costs in the case; Provided, That in all cases demand in writing on said common carrier shall be made for the money damages sustained before suit is brought for recovery under this section, and that no suit shall be brought until the expiration of fifteen days after such demand.

4091 SEC. 9. [Violation of act, penalty.] That in case any common carrier subject to the provisions of this act, shall do, or cause to be done, or permit to be done, any act, matter, or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter or thing in this act required to be done, such common carrier shall upon conviction thereof, be fined in any sum not less than one thousand ($1,000) dollars nor more than five thousand ($5,000) dollars for the first offense; and for the second offense not less than five thousand ($5,000) dollars nor more than ten thousand ($10,000) dollars, and for the third offense, not less than ten thousand ($10,000) dollars nor more than twenty thousand ($20,000) dollars, and for every subsequent offense and conviction thereof, shall be liable to a fine of twentyfive thousand ($25,000) dollars; Provided, That in all cases under this act either party shall have the right of trial by jury.

SEC. 9. Injunction issued by circuit court of United States can not lawfully forbid attorney general from suing for penalties claimed by state under this section. State v. C., R. I. & P. R. Co., March 20, 1901.

CHAPTER 73.-REAL ESTATE.

4092 SECTION 1. [Deeds Witnesses-Execution- Acknowledgment-Record.] Deeds of real estate or any interest therein in this state, except leases for one year or for a less time, if executed in this state, must be signed by the grantor or grantors, being of lawful age, in the presence of at least one competent witness, who shall subscribe his or her name as a witness thereto, and be acknowledged or proved and recorded as directed in this chapter. [R. S., 280. G. S., 872. Amended 1887, chap. 61.]

4093 SEC. 2. [Deeds-Acknowledgment.] The grantor must acknowledge the instrument to be his voluntary act and deed.

4094 SEC. 3. [Acknowledgment before whom.] The acknowledgment must be made or proved, if in this state, before a judge or clerk of any court, or some justice of the peace or notary public therein; but no officer can take any such acknowledgment or proof out of his territorial jurisdiction.

4095 SEC. 4. [Same in another state.] If executed and acknowledged or proved in any other state, territory, or district of the United States, it must be executed and acknowledged or proved either according to the laws of such state, territory, or district, or in accordance with the law of this state, and such acknowledgment shall be made before and certified by any officer authorized by the laws of such state, territory, or district to take and certify acknowledgments, or by a commissioner of deeds appointed by the governor of this state for that purpose. [Amended 1887, chap. 61.]

4096 SEC. 4a. [Prior deeds legalized.] All deeds heretofore executed and acknowledged in accordance with the provisions of this act, shall be and are hereby declared to be legal and valid. [1887, § 4, chap. 61.]

4097 SEC. 5. [Same-Authentication.] In all cases provided for in section four of this chapter, (if such acknowledgment or proof is taken before a com

NOTE. Chap. XLIII, R. S., 280. Chap. 61, G. S., 872. Secs. 18, 19, 20, 28, and 30 of the original chapter were substantially re-enacted in 1879, and appear in chapter 18. Secs. 60-84 of the original chapter are transferred and appear in chapter 32, which see for definitions of "lands," conveyances," proof of consideration and subscription by agent.

SEC. 1. The presence of the attesting witness, at the time the instrument is subscribed by the parties thereto, is not essential if he is immediately afterwards told by them that such instrument is their agreement, and is by them requested to subscribe the same as a witness. 4 Neb., 121. Weakness of understanding alone not sufficient to avoid a deed. 2 Neb., 116. 4 Id., 117. 6 Id., 401. 12 Id., 418. Deeds of assignment for benefit of creditors must be executed as required by this section. 10 Neb., 513. Semble, A lease need not be. 10 Neb., 605. 15 Id., 170, Taken before notary, and seal attached, no further authentication necessary. 12 Neb., 124. 14 Id., 178. Semble, That in Illinois no witness is required. 12 Neb., 124. One witness required in this state; grantor must acknowledge it to be his voluntary act and deed. Id. Delivery of deed. 8 Neb., 371. 10 Id., 5, 129. Mistake or abbreviation in name of grantee. 7 Neb., 2. Execution by agent. 5 Neb., 304. And see 5 Neb., 174. Witness to a deed must be without a direct. certain legal interest therein. 24 Neb.. 201. Quitclaim deed; equities: notice 35 Id., 361. 89 Id., 741. Deed delivered neither acknowledged nor recorded, lost, passes title. 39 Id., 793. Witness un. necessary between parties and those having notice. 41 Id., 608. "In presence of" designates witnessing. 48 Id., 874. Acknowledgment unnecessary to pass title. 58 Id., 400. As between parties neither witnessing nor soknowledging necessary. 51 Id., 24. Presumption of validity of acknowledgment from certificate. 58 Id., 168. SEC. 2. Acknowledgment is no part of the deed itself. 7 Neb., 163. "Personally appeared, etc., A. B., Mayor of" etc., is a sufficient statement of identity of grantor; it is grantor's deed as mayor, and not his individual deed. Id., 183, 184. Functions stated; construed liberally; will be held sufficient although it fails to follow words or forms prescribed. Id. 11 Id., 497. But either the language of the statute or words of like import must be used. 18 Neb, 340. Must be voluntary. 11 Neb., 497. 31 Id., 453. Certificate must so show. 13 Neb., 340. If certificate shows it to be the "voluntary act" of grantor, omission of the words "and deed" will not vitiate the instrument. Id. Acknowledgment not necessary to pass title. 12 Neb., 123, 155. 31 Id., 453. Acknowledgment defined. 19 Neb., 211. Certificate cannot be impeached except for fraud, etc. 17 Neb., 119. Cited 31 Id., 858. Taking acknowledgment a ministerial act. Interested officers. 48 Id. 514. Informal, though intended acknowledgments, valid. 58 Id., 90.

SEC. 3. County clerk may take. 2 Neb., 84. (This decision under R. S., 44. The act was repealed in 1879, but re-enacted in 1883, and prior acts legalized. Ante, chap. 18, secs. 90a, 90b. 15 Neb., 32.)

SEC. 4. Correct execution presumed. 49 Neb., 443.

SEC. 4a. Authentication not within act. 47 Neb., 592.

S20. 5. See sec. 36, this chapter. If a deed is executed and acknowledged in another state before a commissioner of deeds of this state, a notary publ c, or other officer using an official seal, the law presumes a compliance with the law of the place of execution and no further authentication is necessary, but in all other cases there must be attached the certificate mentioned in the proviso to this section. 4 Neb., 435. But see 47 Id., 592. A deed executed before a justice of the peace in Virginia, there being no evidence that it was executed and acknowledged according to the laws of Virginia, held, properly excluded. I. See also 5 Neb., 174. The record of a mortgage executed in another state where the acknowledgment is taken by an officer not using an official seal, and not certified to as required in the proviso is void and inadmissible in evidence against a subsequent purchaser; but If actual notice of the mortgage by the purchaser be shown, the judgment will not be reversed. 10 Neb., 482. Repealed by sec. 36, as to acknowledgments taken by commissioners. 47 Id., 592.

missioner appointed by the governor of this state for that purpose, notary public or other officer using an official seal) the instrument thus acknowledged or proved shall be entitled to be recorded without further authentication; Providel, That in all other cases, the deed or other instrument shall have attached thereto a certificate of the clerk of a court of record, or other proper certifying officer of thecounty, district, or state within which the acknowledgment or proof was taken, under the seal of his office, showing that the person whose name is subscribed to the certificate of acknowledgment was at the date thereof such officer as he is therein represented to be; that he is well acquainted with the handwriting of such officer; that he believes the said signature of such officer to be genuine, and that the deed or other instrument is executed and acknowledged according to the laws of such state, district, or territory.

4098 SEC. 6. [Same in foreign country.] If such deed be executed in a foreign country, it may be executed according to the laws of such country, and the execution thereof may be acknowledged before any notary public therein, or before any minister plenipotentiary, minister extraordinary, minister resident, charge des affairs, commissioner,.commercial agent, or consul of the United States appointed to reside therein, which acknowledgment shall be certified thereon by the officer taking the same, under his hand, and if taken before a notary public, his seal of office shall be affixed to such certificate.

4099 SEC. 7. [Refusal to acknowledge-Proof.] If the grantor die before acknowledgment, or if for any cause his attendance cannot be procured in order to make the same, or, having appeared, he refuses to acknowledge it, proof of the execution and delivery of the deed may be made by any competent subscribing witness thereto, before any officer authorized to take the acknowledgment; and the witness must state upon oath, his own place of residence, that he set his name to the deed as a witness, that he knew the grantor in such deed, and saw him sign or heard him acknowledge he had signed the same; and such proof shall not be taken unless the officer is personally acquainted with such subscribing witness, or has satisfactory evidence that he is the same person who was a subscribing witness to such deed.

4100 SEC. 8. [Witnesses to appear.] The officer has power to issue the necessary subpoenas for the subscribing witnesses, residing in the same county, to ap pear before him for the purpose aforesaid.

4101 SEC. 9. [Same-Failure-Penalty.] Every person who, being served with a subpoena, and having been tendered the fees of a witness in a justice's court, shall, without reasonable cause, refuse or neglect to appear, or appearing, shall re fuse to answer upon oath, touching the matters aforesaid, shall forfeit to the party injured one hundred dollars; and may also be committed to prison by the officer who issued such subpoena, there to remain without bail until he shall submit to answer upon oath as aforesaid.

4102 SEC. 10. [Witness absent.] If all the subscribing witnesses shall be dead, or out of the state, such death or absence is first to be proved, and then the execution of the deed may be proved before such officer by proving the handwriting of the grantor, and of any subscribing witness to such deed.

4103 SEC. 11. [Unacknowledged deed-Filing.] Any person interested in a deed that is not acknowledged, may, at any time before or during the proceedings before such officer, file in the office of the register of deeds of the county where the lands lie, a copy of the deed, compared with the original by the register of deeds, which shall for the space of thirty days thereafter, have the same effect as the recording of the deed, if such deed shall within that time be duly proved and recorded. [Amended 1887, chap. 30.]

SEC. 8. "Consul" explained. Morris v. Linton, March 20, 1901.