CHAPTER 35.-HOME FOR THE FRIENDLESS.

SECTION 1. [Establishment.]-That a home for the friendless shall be established in the state of Nebraska. [1881, § 1, chap. 52.]

SEC. 2. [Location.]-The location of said home shall be under the supervision of the board of public lands and buildings, and shall be located at the city or town which shall, after duly advertising for bids for its location, donate the largest amount to said home.

SEC. 3. [Appropriation.]—The sum of five thousand dollars, or so much thereof as may be necessary, is hereby appropriated out of the general fund of the treasury for the erection of said home.

SEC. 4. [Government.]-The government of said home shall be by and under the supervision of the society of home for the friendless; Provided, That nothing herein contained shall be so construed as to prevent the board of public lands and buildings. from establishing rules and regulations for the government of such home in any

manner.

CHAP. 35. "An act to establish a home for the friendless in the state of Nebraska, and to provide for the erection, and location and government of the same." Passed and took effect June 1, 1881.

CHAPTER 36.-HOMESTEADS.

SECTION 1. [Exemption.]-A homestead not exceeding in value $2,000, consisting of the dwelling house in which the claimant resides, and its appurtenances, and the land on which the same is situated, not exceeding 160 acres of land, to be selected by the owner thereof, and not in any incorporated city or village, or instead thereof, at the option of the claimant, a quantity of contiguous land not exceeding two lots within any incorporated city or village shall be exempt from judgment liens and from execution or forced sale, except as in this chapter provided. [1879, 57.]

SEC. 2. [From what property selected.]-If the claimant be married, the homestead may be selected from the separate property of the husband, or with the consent of the wife from her separate property. When the claimant is not married, but is the head of a family, within the meaning of section fifteen, the homestead may be selected from any of his or her property.

SEC. 3. [Subject to execution, when.]-The homestead is subject to execution or forced sale in satisfaction of judgments obtained: First-On debts secured by mechanics', laborers' or vendors' liens upon the premises. Second-On debts secured by mortgages upon the premises, executed and acknowledged by both husband and wife, or an unmarried claimant.

SEC. 4. [How conveyed.]-The homestead of a married person cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife.

SEC. 5. [How selected.]-When an execution for the enforcement of a judg ment obtained in a case not within the classes enumerated in section 3 is levied upon the lands or tenements of a head of a family, such head of a family may notify the officer at the time of making the levy of what he regards as his homestead, with a description thereof, within the limits above prescribed, and the remainder alone shall be subject to such levy, except as otherwise provided in this chapter. The judgment creditor may thereupon apply to the district court in the county in which the homestead is situated, for the appointment of persons to appraise the value thereof.

SEC. 6. [Application for appraisal.]-The application must be made upon a verified petition showing: 1. The fact that an execution has been levied upon property which has been claimed as a homestead. 2. The name of the claimant. 3. That the value of the homestead exceeds the amount of the homestead exemption.

SEC. 7. [Petition.]-The petition must be filed with the clerk of the district court, and a copy thereof, with notice of the time and place of hearing, be served upon the claimant at least ten days before the hearing.

CHAP. 36. "An act to provide for the selection and disposition of homesteads and to exempt the same from judgment liens, and from attachment levy, or sale, upon execution or other process." Passed and took effect September 1, 1879. Law construed liberally. 4 Neb. 496. Law in force at time contracts are made governs. 11 Id. 389; 17 Id. 535; 19 Id. 677. Exemption absolute. 13 Neb. 21; 17 Id. 469. Leasing of part does not invalidate right of exemption. 12 Neb. 533. Right to homestead may be asserted although title is in another. 23 Neb. 664. Purchase of homestead while occupied by tenant; rights of owner stated. 17 Neb. 371. Widower entitled to under facts stated. 11 Neb. 391. If wife abandon husband, purchase and keep a home of her own, she has no homestead right in the property of her husband at his death. 16 Neb. 688. Wife may claim right; transfer of husband's title to wife is not abandonment. 15 Neb. 654; 17 Id. 630. Mortgage on homestead signed by husband alone is void. 17 Neb. 629; 20 Id. 109. Mortgage signed by both, but only acknowledged by one, is not a lien on homestead. 19 Neb. 211. Deed of homestead from husband to wife, signed and acknowledged by him alone, is valid although not signed and acknowledged by wife. 21 Neb. 671. Provisions of sec. 4 are for the protection of the husband or wife not executing the conveyance and not for the benefit of third parties having no privity of interest with such person. 23 Neb. 590. Contract to convey homestead entered into by wife in her own name will not be specifically enforced. 22 Neb. 374. Title cannot be divested or encumbered by deed unless such deed be executed and acknowledged by both husband and wife. 25 Neb. 175. If title to family residence is in wife, it is the homestead and exempt. 17 Neb. 470, 630. Death of husband or wife; title vests in survivor; if homestead character is preserved by children, it is exempt. 25 Neb. 770. Where homestead is transferred from husband to wife without consideration, surplus over amount of exemption is liable in her hands for debt of husband. 19 Neb. 341. Homestead cannot be subject to fraudulent conveyance. 19 Neb. 631. Tenant in common not entitled to right as against co-teuant for value of his interest. 18 Neb. 589. Homestead may be assigned by county court on settlement of estate. 18 Neb. 106. Law in force when contract made applicable. 28 Neb. 189.

SEC. 8. [Appraisement.]—At the hearing, the court, upon proof of the service of such petition and notice, and of the facts stated in the petition, shall appoint three disinterested residents of the county to appraise the value of the homestead, who must take an oath to impartially appraise the same. They must view the premises, and appraise the value thereof, and if the appraised value exceeds the homestead exemption, they must determine whether the land claimed can be divided without material injury. SEC. 9. [Report.]—Within ten days, or less, if the court so order, from the time of their appointment, they must make to the court a report in writing, showing the appraised value, and their determination upon the matter of a division of the land claimed.

SEC. 10. [Homestead set off.]-If from the report it appears that the land claimed can be divided without material injury, the court shall, by an order, direct the appraisers to set off to the claimant so much of the land, including the residence, not exceeding the quantity prescribed in section one of this chapter, as will amount in value to the homestead exemption, and the execution may be enforced against the remainder of the land.

SEC. 11. [Sale.]-If from the report it appears to the court that the land claimed exceeds in value the amount of the homestead exemption, and that it cannot be divided, he must make an order directing its sale under the execution; but at such sale no bid must be received unless it exceeds the amount of the homestead exemption.

SEC. 12. [Proceeds of sale.]-If the sale is made, the proceeds thereof, to the amount of the homestead exemption, must be paid to the claimant, and the balance applied to the satisfaction of the execution.

SEC. 13. [Exemption of surplus.]-The money paid to the claimant is entitled, for the period of six months thereafter, to the same protection against legal process and the voluntary disposition of the claimant which the law gives to the homestead.

SEC. 14. [Fees of appraisers.]-The appraisers shall receive the same fees as jurors, in civil cases in the district court, which, with all other costs of these proceedings, must be paid by the execution creditor, in the first instance, but in the cases provided for in sections ten and eleven the amount paid must be added as costs on execution, and collected accordingly.

SEC. 15. [Head of a family.]-The phrase "head of a family," as used in this chapter, includes within its meaning: First-The husband, when the claimant is a married person. Second-Every person who has resided on the premises with him or her, and under his care and maintenance, either: 1. His or her minor child, or the minor child of his or her deceased wife or husband. 2. A minor brother or sister, or the minor child of a deceased brother or sister. 3. A father, mother, grandfather, or grandmother. 4. The father or mother, grandfather or grandmother of a deceased husband or wife. 5. An unmarried sister, or any other of the relatives mentioned in this section who have attained the age of majority and are unable to take care of or support themselves.

SEC. 16. [Money realized from sale of homestead is exempt.]If the homestead be conveyed by the claimant, or sold for the satisfaction of any lien mentioned in section three, the proceeds of the sale, beyond the amount necessary to the satisfaction of such lien, and not exceeding the amount of the homestead exemption, shall be entitled, for the period of six months thereafter, to the same protection against legal process and the voluntary disposition of the claimant which the law gives to the homestead. And the sale and disposition of one homestead shall not be held to prevent the selection or purchase of another as provided in this chapter.

SEC. 17. [Repealed by Laws 1889, chap. 57.]

SEC. 18. [Repealed Laws 1875, 45; Laws 1877, 33; and all acts in conflict with this act.]

SEC. 19. [Provided for act to take effect Sept. 1, 1879.]

SEC. 15. See 11 Neb. 390. 25 Id. 658.

CHAPTER 37.-ILLEGITIMATE CHILDREN.

SECTION 1. [Proceedings before justice of the peace.]-That on complaint made to any justice of the peace in this state by any unmarried woman resident therein, who shall hereafter be delivered of a bastard child, or being pregnant with a child which, if born alive, may be a bastard, accusing on oath or affirmation any person of being the father of said child, the justice shall take such accusation in writing, and thereupon issue his warrant, directed to the sheriff, coroner, or constable of any county of this state, commanding him forthwith to bring such accused person before said justice, to answer to said complaint; and on return of such warrant the justice, in the presence of the accused person, shall examine the complainant under oath respecting the cause of her complaint, and such accused person shall be allowed to ask the complainant, when under oath, any question he may think necessary for his justification; all of which questions and answers, together with every other part of the examination, shall be reduced to writing by the justice of the peace, and if, on such examination, the party accused shall pay or secure to be paid to the complainant such sum or sums of money or property as she may agree to receive in full satisfaction, and shall further give bonds to the county commissioners of the county in which said complainant shall reside and their successors in office, conditioned to save such county free from all charges toward the maintenance of said child, then and in that case the justice shall discharge the party accused out of custody, or [on] his paying the costs of prosecution; Provided, That the agreement aforesaid shall be made or acknowledged by both parties in the presence of the justice, who shall thereupon enter a memorandum of the same upon his docket. [1875, 53.]

SEC. 2. [Suit by commissioners.]—That, when any woman has a bastard child, and neglects to bring a suit for its maintenance, or commences a suit and fails to prosecute to final judgment, the county commissioners in any county interested in the support of any such bastard child, where sufficient security is not offered to save the county from expense, may bring a suit in behalf of the county against him who is accused of begetting such child, or may take up and prosecute a suit begun by the mother of the child.

SEC. 3. [Recognizance.]—That in case such accused person does not comply

CHAP. 37. "An act for the maintenance and support of illegitimate children." Passed and took effect Feb 25, 1875. Jurisdiction how acquired. 16 Neb. 632. County judge has jurisdiction. 24 Id. 35. Proceedings conducted in name of prosecutrix; if she refuse, then in name of county, but if instituted in name of state they are not void if no objections are made thereto until after judgment. 9 Id. 125. 14 Id. 210. 24 Id. 35. Proceeding is in nature of civil action. 9 Id. 127. 14 Id. 210. Prosecution properly commenced in county where mother resides, though child was born in another county. 14 Id. 37. Proceeding while in the nature of a civil action is properly a police regulation. 12 Id. 194. No pleadings necessary except those specified. 19 Id. 268. Proceeding where putative father is imprisoned will not be reviewed on application for writ of habeas corpus. 24 Id. 69. Action not brought until four years from birth of child, where evidence shows the party accused to be the father and claims of mother made at first opportunity, etc., not barred. 24 Id. 781. Delay in instituting proceedings; prior expenses not allowed. Id. Statute providing for imprisonment of father, without remedy for his discharge other than security for compliance with the order of the court, is constitutional. Id. Mere presence of alleged bastard at trial, Held, Not improper. 19 Id. 265. Where attorney conducting prosecution told prosecutrix to turn face of child so that jury could observe it, and which upon objection court held improper, Held, That no error could be assigned in favor of plaintiff in error. 24 Id. 37. Where defendant does not take stand as a witness and deny the charge, attorney in argument may refer to such want of denial on part of the accused. Id. Evidence by prosecutrix claiming to be unmarried by reason of husband having former wife, Held, Sufficient when offense charged was clearly proved, to prevent discharging accused on writ of habeas corpus. 11 Id. 99. Evidence of sexual intercourse of complainant with other men about the same time as defendant, does not destroy her competency as a witness to prove that accused is father of child. 16 Id. 631. Evidence of intercourse with others outside of period of gestation is inadmissible. 20 Id. 373. 19 Id, 460. Evidence of paternity of child; verdict sustained. 16 Id. 633. Preponderance of evidence sufficient. Id. New trial granted on ground of alibi proved. 6 Id. 309. Not error to refuse to allow cross-examination of prosecutrix as to what she testified to in her examination before magistrate before whom proceeding was instituted, her examination before the magistrate being certified up. 19 Id. 459. Three peremptory challenges only allowed on trial. 16 Id. 281. Omission to enter plea of reputed father before empaneling of jury not ground for new trial. 19 Id. 266. On a verdict of not guilty, court may adjudge costs against defendant. 16 Id. 210. Verdict of guilty, court should adjudge defendant to be reputed father. 6 Id. 309. Reputed father may be imprisoned for failure to support. 24 Id. 69. 13 Id. 193. Marriage of parties encouraged, but can not be enforced or made condition of support of child. 16 Id. 280. Recognizance of reputed father binding on sureties though not entered on docket of justice. 16 Id. 540. 24 Id. 103. Examination of deceased mother admissible in evidence. Suit revived by county. 28 Neb. 224.

with the provisions in the first section of this act contained, the justice to whom such complaint was made shall bind such persons in a recognizance to appear at the next term of the district court, with sufficient security, in a sum not less than five hundred dollars, nor more than two thousand dollars, for the benefit of the county in which such bastard child shall be born, to answer such accusation, and to abide the order of the court thereon, and on neglect or refusal to find such security, the justice shall cause him to be committed to the jail of the county, there to be held to answer such complaint.

SEC. 4. [Renewal of recognizance.]-That if, at the time of such court, the woman be not delivered, or be unable to attend, the court shall order the renewal of the bonds of recognizance, that the accused person shall be forthcoming at the next court after the birth of the child, at which the mother of said child shall be able to attend; and the continuance of such bonds shall be entered by order of said court unless the security object thereto, and shall have the same force and effect as a recogizance taken in court for that purpose.

SEC. 5. [Trial-Evidence.]-That when such accused person shall plead not guilty to such charge before the court to which he is recognized, the court shall order the issue to be tried by a jury; and at the trial of such issue the examination before the justice shall be given in evidence, and the mother of the bastard child shall be admitted as a competent witness, and her credibility be left to the jury; Provided, always, That no woman shall be admitted as a witness as aforesaid, who has been convicted of any crime which would by law disqualify her from being a witness in any other case; and on the trial of the issue the jury shall, in behalf of the man accused, take into consideration any want of credibility in the mother of the bastard child; also any variations in her testimony before the justice and that before the jury; and also any other confession of her, at any time, which does not agree with her testimony, on any other pleas or proofs made and produced on behalf of such accused person.

SEC. 6. [Proceedings if defendant found guilty.]-That in case the jury find the defendant guilty, or such accused person before the trial shall confess in court that the accusation is true, he shall be judged the reputed father of said child, and shall stand charged with the maintenance thereof in such a sum or sums as the court may order and direct, with payments of costs of prosecution, and the court shall require the reputed father to give security to perform the aforesaid order, and in case the said reputed father shall neglect or refuse to give security as aforesaid, and pay the costs of prosecution, he shall be committed to the jail of the county, to remain until he shall comply with the order of the court.

SEC. 7. [Bail.]-When any defendant to a complaint of bastardy shall have been committed to jail on neglect or refusal to find the security required by the third section of this act, or on failure of such defendant to renew his recognizance as required by the fourth section of this act, it shall be lawful for any judge of the district court or probate judge within his county to admit such defendant to bail by recognizing him in such sum and with such securities as such judge shall deem proper, conditioned for the appearance of such defendant before the proper court to answer the complaint made, under which he stands charged; and for taking such bail the said judge may by his special warrant, under his hand, require the sheriff or jailer to bring such defendant before him at the court house of the proper county, at such time as in such warrant the judge may direct; Provided, That in fixing the amount of bail, the judge admitting the same shall be governed in the amount and quality of bail required by the third section of this act.

SEC. 8. [Warrant for arrest of accused.]-The warrant authorized to be issued by this act against any accused person shall authorize and empower the of ficer to which it is directed to pursue and take the accused person in any county in this state, and to bring said accused person before the justice who issued said warrant, to answer the complaint made against him.

SEC. 9. [Repealed act of 1873, G. S. 404.]