Perry v. State. certain house of prostitution, and were harbored therein, and contributing to the support thereof, contrary to the ordinances in such cases provided. C. M. TAYLOR, "Chief of Police." To this complaint the plaintiffs in error filed a demurrer, alleging that the facts stated in the complaint were not sufficient to constitute an offense. This demurrer was overruled, and the plaintiffs in error, refusing to plead further, were tried, convicted, and sentenced by the court. They filed a motion for a new trial, which being overruled, they bring the case here on error. The sole point made by them here is, that the ordinance under which the prosecution was had was invalid. We do not know whether it was or not, as there is in the record no bill of exceptions. There is in the record a stipulation signed by the counsel for the state and the plaintiffs in error, to the effect that this complaint was based on an ordinance which was set out at length in the stipulation. But this stipulation is presented without a bill of exceptions, and we cannot examine it, for that reason. It was said by Chief Justice COBB, in Herbison v. Taylor, 29 Neb., 217: "There are brought up in this case the petition in error and the transcript of the judgment, and motion for a new trial in the district court. Neither the pleadings nor a To this record is attached bill of exceptions are before us. the stipulation of facts entered into by the attorneys of record in the district court. The stipulation is supposed to have taken the place of evidence upon the trial below, and upon it the judgment is founded. That evidence cannot be accepted by this court without a bill of exceptions, settled in due form as provided by statute. There being none, the court is without the criterion for passing upon the questions raised by the plaintiff in error in his brief." It remains then for us to determine whether the complaint, on its face, stated a cause of action against the plaintiffs in error. By subdivision 46 of section 52, chapter 14, Perry v. State. Compiled Statutes, it is provided that cities of the second class shall have power "to restrain, prohibit, and suppress houses of prostitution and other disorderly houses and practices, * * and all kinds of public indecencies." This statute is broad enough to authorize the city council of the city of Columbus to pass an ordinance prohibiting persons from being inmates of a house of ill-fame, and punishing them therefor. The demurrer admitted that the plaintiffs in error were inmates of a house of prostitution, and were harbored therein, contrary to the ordinances of the city. This court will take judicial notice of the fact that Columbus is a city of the second class, and since the judgment of the court is supported by the pleadings in the case, we will presume that the court had before it evidence that the plaintiffs in error were inmates of a house of prostitution in the city of Columbus; that there was in force in said city a valid ordinance against persons being inmates of such houses. It is true that before the plaintiffs in error could have been lawfully convicted there must have been introduced in evidence facts proving that they were inmates of a house of ill-fame, and there must have also been introduced a valid ordinance of the city of Columbus forbidding persons from being inmates of such houses. As a matter of fact none of these things may have been done, but every reasonable presumption will be indulged by this court in favor of the correctness of the judgment of the court below. The judgment of the district court is in all things THE other commissioners concur. AFFIRMED. Commercial Natl. Bank of St. Paul v. Brill. COMMERCIAL NATIONAL BANK OF ST. PAUL, MINNE- FILED SEPTEMBER 20, 1893. No. 4984. 1. Negotiable Instruments: AUTHORITY OF SECRETARY OF CORPORATION TO TRANSFER: VALIDITY OF INDORSEMENTS: EVIDENCE. Where a bank has an arrangement with a corporation whereby the bank agrees to discount notes held by the corporation, and in pursuance of such agreement such notes have customarily been brought to the bank and been negotiated by the secretary of the corporation, such facts are sufficient evidence of the authority of the secretary to transfer a particular note and of the genuineness of the indorsement upon such note, the proceeds of the note having been placed by the bank to the corporation's credit, and paid out on the corporation's checks. 2. : THE DECLARATIONS OF OFFICERS of such corporation, made after the transfer to the bank, are inadmissible in a suit by the bank against the makers of the note, for the purpose of showing want of authority in the secretary to make the transfer. 3. Verdict Supported by Incompetent Evidence: REVIEW. Where incompetent evidence is admitted against objections, but the admission of such evidence is not specifically assigned as error, this court will nevertheless disregard such incompetent evidence in considering the question whether the verdict is sustained by the evidence. ERROR from the district court of Cuming county. Tried below before NORRIS, J. M. McLaughlin, for plaintiff in error. C. C. McNish, contra. IRVINE, C. The plaintiff in error brought this action in the district court of Cuming county to recover from the defendants in error upon a promissory note for $315, made to the order Commercial Natl. Bank of St. Paul v. Brill. of the J. H. Mahler Company, and by that company indorsed to plaintiff. The defendants admitted the execution of the note but alleged that it had been procured from them by the Mahler Company by fraud and without consideration, and that one Miller, the secretary of the Mahler Company, had, without authority from that company, delivered the note to the plaintiff, and that the plaintiff knew that Miller had no authority to transfer the note. The plaintiff in reply denied the affirmative allegations of the answer, and pleaded that it was a bona fide purchaser for value before maturity. The case was argued largely upon the question as to whether or not the bank took the note with notice of the fraud alleged. It will be observed, however, that the precise issue tendered and joined was as to the transfer of the note to the bank and the authority of the officer making the same. Upon the part of the bank, its cashier testified that he bought the note for the bank in the ordinary course of business without notice of any of the relations existing between the Mahler Company and the makers; that the bank had arrangements with the Mahler Company by which it agreed to discount notes held by the Mahler Company, not to exceed at any time $25,000; that this note was taken under that agreement; its proceeds placed to the credit of the Mahler Company and checked out by that company. He further testified that Miller, the secretary of the Mahler Company, presented most of the notes for discount. This note bears an indorsement as follows: "J. H. Mahler Company, per J. H. Mahler, Prest." While the secretary of a corporation has not, merely by virtue of his office, authority to negotiate notes held by the corporation, it is well settled that if such an officer has been permitted by the directors to negotiate notes, or if the company acquiesce in and receive the benefit of such acts, a purchaser of a particular note, familiar with such facts, Commercial Natl. Bank of St. Paul v. Brill. may assume the officer's authority, and the corporation will not be permitted to set up a want of authority against such purchaser. (Lester v. Webb, 83 Mass., 34; Partridge v. Badger, 25 Barb. [N. Y.], 146; Foster v. Ohio- Colorado Reduction & Mining Co., 17 Fed. Rep., 130.) The testimony of the cashier brings the case within this rule. There is no direct evidence of the genuineness of the indorsement itself, but the indorsement being regular in form, and the note having been brought to the bank by that officer of the company who customarily attended to such business, the indorsement must be taken as genuine. As against this testimony there is nothing except the testimony of one of the defendants and another witness as to admissions or statements made to them by the president and secretary of the Mahler Company long after the bank took the This testimony was clearly inadmissible against the bank. The admission of this evidence, although there were proper objections and exceptions, is not specifically assigned as error in the petition in error; but it is assigned as error that the verdict is not sustained by the evidence, and the court, in passing upon that assignment, will not consider incompetent evidence admitted over proper objections and exceptions. The bank having made a prima facie case which was not disputed except by such incompetent evidence, there was no evidence sufficient to sustain the verdict in favor of the defendants. note. REVERSED AND REMANDED. THE other commissioners concur. |