Laflin v. Svoboda. of instructions asked by the plaintiff in error. The instructions given by the court were based upon the theory that the plaintiff in error was liable for injuries committed not only by his own cattle, but by cattle of others in his custody. The question presented is the construction of the herd law, chapter 2, article 3, Compiled Statutes. By section 1 of this article it is provided, "That the owners of cattle, horses, mules, swine, and sheep in this state shall hereafter be liable for all damage done by such stock upon the cultivated lands in this state as herein provided by this act." It appears from the evidence that a portion, if not all, of the cattle which committed the trespass complained of were not owned by the plaintiff in error, but were permitted to be pastured upon his land without compensation to him. Under this state of facts the plaintiff in error contends that the rule of liability as between bailor and bailee applies; and that the bailment of the cattle to the plaintiff in error being gratuitous, he would not in any event be liable except for gross negligence on his own part. In urging this point the plaintiff in error confuses the relations existing between bailor and bailee with those existing between the bailee and third persons, and the doctrine referred to has no application to this case. It is also urged that the defendant in error, by surrendering possession of the cattle, and so waiving the lien created by section 2 of the herd law, lost his remedy. This is not true, because by section 11 of the herd law it is provided that nothing in that law contained shall be so construed as to prevent the person injured from maintaining an action for damages. (Keith v. Tilford, 12 Neb., 271.) The most serious question in the case is, whether the word "owner" in the statute is to be construed by restricting the term to the general owner, or by extending it to persons in possession under some special title and having the custody of the stock. It was held in Delaney v. Errickson, 10 Neb., Laflin v. Svoboda. 492, that as to trespasses by cattle upon open uncultivated lands the common law of England is not applicable to Nebraska. But in Keith v. Tilford, supra, this case was explained, and restricted to uncultivated lands, and it was said that where growing or standing cultivated crops are injured the owner has his remedy, and that the first section of the herd law conferred no right upon the people of the state which they did not possess before its enactment. That section must therefore be deemed declaratory of the common law in regard to trespasses upon cultivated lands. Indeed, the common law is stated almost in the words of the herd law, except that it was not restricted to cultivated lands, and at common law the same double remedy existed, to-wit, by distress or by action. (3 Bl., Com., 211.) Under the common law it was frequently held that an agister or depasturer is liable for trespasses committed by cattle in his possession, and in such case many authorities hold that the owner is not liable, especially in trespass. (Rossell v. Cottom, 31 Pa. St., 525; Tewksbury v. Bucklin, 7 N. H., 518; Kennett v. Durgin, 59 Id., 560; Marsh v. Jones, 21 Vt., 378; Ward v. Brown, 64 Ill., 307.) In Weymouth v. Gile, 72 Me., 446, it was contended, as here, that there was no contract of agistment, but that the owners took the cattle from defendant's close at night, and returned them in the morning. Nevertheless it was held that the depasturer was liable. In Smith v. Jaques, 6 Conn., 530, in Barnum v. Vandusen, 16 Id., 200, and in Sheridan v. Bean, 8 Met. [Mass.], 284, statutes very similar to ours were construed, and the word "owner" held to include depasturers having the custody of cattle. The instructions given by the court were correct, and those asked by the plaintiff in error were properly refused. Judgment AFFIRMED. THE other commissioners concur. State, ex rel. Summers, v. Uridil. 37 371 d48 561 48 686 STATE OF NEBRASKA, EX REL. W. S. SUMMERS, DEPUTY ET AL. FILED JUNE 29, 1893. No. 6102. 1. Incorporation of Villages: ORDER FRAUDULENTLY OBTAINED. An order incorporating a village is void when it is obtained from the county board by means of a paper purporting to be a petition signed by a majority of the taxable inhabitants of the territory sought to be incorporated, but the signatures attached to which were not by the signers thereto appended, but were given for some other purpose and fraudulently thereto attached. 2. Wrongful Exercise of Corporate Powers: Quo WarRANTO: OUSter. Quo warranto is the proper remedy to oust persons who are exercising the powers of corporate offices when the corporation has no legal existence. ORIGINAL proceeding in nature of quo warranto. W. S. Summers, Deputy and Acting Attorney General, Frick & Dolezal, and S. H. Steele, for relator. IRVINE, C. This is an information in the nature of quo warranto, alleging that the respondents, conspiring to usurp the franchise and power to license the traffic in intoxicating liquors, and enjoy its revenue in a place in Butler county known as Abie, procured upon a piece of paper the signatures of certain persons, and thereafter made a writing in the form of a petition, praying for the incorporation, as a village, of said place of Abie, and fraudulently attached said signatures to said writing, making the same falsely to appear as a petition in due form by a majority of the taxable inhabitants of said Abie for incorporation as a village; that they presented that paper to the board of supervisors of Butler county, and that certain of the respondents ap 49 342 State, ex rel. Summers, v. Uridil. peared before said board and falsely swore that said place of Abie contained more than two hundred and less than fifteen hundred inhabitants, whereas in fact said place contained in all not more than seventy inhabitants. The information further alleges that by such means the respondents fraudulently procured the county board to make an order pretending to incorporate said place of Abie as a village, and appointing the respondents as a board of trustees of said village; and that the respondents have, ever since said proceedings, unlawfully and fraudulently usurped and exercised the franchise and corporate powers and duties of a village. The prayer is for a writ of quo warranto and judgment of ouster against said defendants and for costs. No answer has been filed and the allegations of the information must be taken as confessed. It is clear under these facts that the territory designated as Abie was not entitled to incorporation as a village; that no proper petition was filed before the board of supervisors, and that, on the contrary, a grave fraud was practiced upon the board to procure the order of incorporation, whereby the board was induced to act upon a forged petition which conferred no jurisdiction upon the board. Under the common law quo warranto would not lie in such a case. (Rex v. Saunders, 3 East [Eng.], 119.) And there are decisions in the United States to the same effect. Section 704 of the Code of Civil Procedure provides, however, that an information may be filed against any person unlawfully holding or exercising any public office or franchise, or when any persons act as a corporation without being authorized by law. Under very similar statutes it has been held in several states, and we think rightly, that in such proceedings against the persons unlawfully exercising the powers of an office the legal existence of that office may be determined. (People v. Carpenter, 24 N. Y., 86; State v. Parker, 25 Minn., 215; State v. Gladwin, 41 Mich., 647; State v. Coffee, 59 Mo., 59.) Indeed it would seem that to American Water-Works Co. v. Dougherty. institute proceedings against the village itself would be to recognize its existence as a corporation, and that if the incorporation is void the only proceedings must be against the persons undertaking to exercise its franchises. There will be a judgment of ouster and for costs against the respondents. THE other commissioners concur. WRIT ALLOWED. AMERICAN WATER-WORKS COMPANY V. FRANK DOUGHERTY. FILED JUNE 29, 1893. No. 4905. 1. Personal Injuries: NEGLIGENCE: CONTRIBUTORY NEGLIGENCE: QUESTIONS FOR JURY. Issues as to the existence of negligence and contributory negligence, and as to the proximate cause of an injury, are for the jury to determine, when the evidence as to the facts is conflicting, and where different minds might reasonably draw different inferences as to these questions from the facts established. 2. -: ELEMENTS OF DAMAGE: MENTAL SUFFERING. In an action for personal injuries, mental suffering and anxiety caused by a physical injury is an element of damage whether or not the injury was due to the willful act of the defendant. ERROR from the district court of Douglas county. Tried below before CLARKSON, J. John L. Webster, for plaintiff in error. Isaac Adams, contra. IRVINE, C. The defendant in error Frank Dougherty recovered judgment against the plaintiff in error in the sum of $500 |