dollars for such offense, which penalty may be collected by civil action before a justice of the peace whenever service of process can be made; one half of the said penalty shall be for the use of the plaintiff in any such action, and the other half shall be paid to the county treasurer, and constitute a part of the school fund of such county. [Id. § 2.]

CHAPTER 30.-FIRE COMPANIES.

SECTION 1. [Exemption from jury duty. All members in good standing in any fire company, or hook and ladder company in this state, and all persons who have been members of such company in good standing for five consecutive years, in the state of Nebraska, shall be exempt from serving upon grand and petit juries, of justice of the peace courts of this state, and from militia duty in time of peace, and from the assessment of any poll-tax. [1867, 12 Sess. Ter., 16. Amended 1873. G. S. 390.]

SEC. 2. [Number of members.]-No fire company shall have upon its rolls at one time, more than seventy-five persons, and no hook and ladder company shall have upon its rolls at any one time more than fifty members; and the foreman and secretary of every such company shall, on the first days of April and October in each year, file in the office of the clerk of the district court, in and for the respective counties, a certified copy of the rolls of their respective companies, so as to obtain for the members thereof the privilege of the exemption herein named; Provided, That no organization shall be deemed to be a bona fide fire, or hook and ladder company, until it shall have procured for active service, appa. ratus for the extinguishment or prevention of fires, in case of a fire company, to the value of $1,500, and of a hook and ladder company to the value of $500.

SEC. 3. [Dues.]-Members in good standing are hereby defined to be those who keep their dues promptly paid up, and are present and render active service when called out for the legitimate purposes of their organization.

SEC. 4. [Exemption from execution.]-That all fire-engines, hose, hosecarriages, ladders, buckets, and all vehicles, machinery and appliances of every kind, used or kept by incorporate cities, villages or fire companies, for the purpose of extinguishing fire, be, and the same is hereby exempt from execution and sale, to satisfy any debt, judgment or decree arising upon contract or otherwise; Provided, That the provisions of this act shall not affect any voluntary lien created by bill of sale, mortgage or otherwise, on such property, by the proper owner; Provided, further, That the provisions of this act shall not apply to, or in any way affect, the remedy upon any contract now existing, or judgment rendered upon any contract in any court of this state. [1869 § 1, 17.]

CHAPTER 81.-FISH.*

SECTION 1. [Fish commissioner-Appointment.]-That the governor shall nominate, and by and with the advice and consent of the senate appoint three resident citizens of the state of Nebraska, who shall constitute a board of fish commissioners, who shall hold such office for the term of three years from the date of such appointment and until the appointment of their successors; Provided, That the persons first appointed under this act shall hold such office one, two, and three years respectively, whose respective terms of office shall be designated in such appointment, and thereafter the governor shall in like manner fill all vacancies in said board during the remainder of the term. [1879 § 1, 154.] SEC. 2. [Same-Government.]-The board may adopt by-laws for its government not inconsistent with the laws of the state. The person whose unex

SECS. 1-3. "An act to exempt firemen from jury, militia and road duty." 12 Sess. Ter., 1867, 16. Took effect Feb. 18, 1867.

SEC. 4. "An act to exempt from sale on execution, property used and kept to extinguish fires." Laws 1869, 17. Took effect Jan. 22, 1869.

NOTE.-"An act creating a board of fish commissioners for the propagation and distribution of fish in the public waters of Nebraska." Laws 1879, 154.

pired term of office is the shortest shall preside at the business meetings of the board. In the determination of all questions by the board two members must

concur.

SEC. 3. [Compensation-Expenses.]--The members of the board shall receive no compensation for services performed, but they shall be reimbursed actual and necessary expenses incurred in the discharge of the duties of the commission, not to exceed the sum of $500 in any one year, out of money appropriated for that purpose.

SEC. 4. [Powers-Duties.]-The board shall have the entire charge and supervision of all public waters pertaining to the collection, propagation, cultivation, distribution, and protection of fish in this state. It shall have control of all property of the state obtained or held for the purposes contemplated by this act. It shall receive all fish and fish spawn donated to the state by the United States fishery commission, or from other sources or persons, or purchased by the state. It may establish hatching boxes, etc., for the preservation and hatching of spawn and fry, and in the most practical and economical manner procure and distribute fish in the public waters of this state, and adopt such other means as shall, in its judgment, best promote the increase and preservation of food fishes.

SEC. 5. [Same.]—The commissioners may take or cause to be taken, under the direction of the board, any fish at any time for the purpose of fish culture or for scientific observation. They shall give special attention to the enforcement of the laws of the state relative to the protection of fish and fisheries in the state.

SEC. 6. [Report to governor.]-The board shall annually, on or before the first day of January in each year, report its transactions, with an account in detail of all its receipts and expenditures, to the governor, also of all spawn and fish taken or received and distributed, giving time, place, and sources from which received, and such other matters as appertain to the fishery interests of the state.

CHAPTER 32.-FRAUDS.

FRAUDULENT CONVEYANCES AND CONTRACTS RELATIVE TO REAL ESTATE.

SECTION 1. When void.]-Every conveyance of or charge upon, any estatr or interest in lands, or the rents and profits thereof, made or created with intent to defraud prior or subsequent purchasers for a valuable consideration, shall, as against such purchasers, be void.

SEC. 2. [Subsequent purchaser.]-No such conveyance or charge shall be deemed fraudulent, in favor of a subsequent purchaser, who shall have actual or legal notice thereof at the time of his purchase, unless it shall appear that the grantor in such conveyance, or person to be benefited by such charge, was privy to the fraud intended.

SEC. 3. [Conveyance to be in writing.]—No estate or interest in land, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, or surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same.

SEC. 4. [Wills and trusts.]-The preceding section shall not be construed SECS. 1-25. What is known as the "Statute of Frauds," being secs. 60-84, chap. 43, R. S. 1866, 292–297. In the compilation of Gen. Stat. 1873, these sections were placed in a separate chapter entitled "Frauds," the numbering of the sections being changed. Inasmuch as nearly all of the decisions in reference to this statute refer to its present place in Gen. Stat. p. 391, the same arrangement has been followed in this edition.

SEC. 3. If under a lease for a term of years the lessee may terminate it at the end of either year, upon giving the lessor six days written notice, such notice must be served on him as required by the contract. Parol testimony is inadmissible to prove the surrender of leased premises. 7 Neb. 75. Payment of a small portion of purchase money is not such part performance as takes the contract out of the statute. 1 Neb. 53. Possession of vendee must be by acts clear, certain and definite. Id. Part performance by the vendor including delivery of possession, and full performance by the vendee, will take the case out of the statute. 10 Neb. 138. A parol agreement was made between father and son that the latter should have the use of lands of the former during his lifein consideration that the son should support his father and mother during their lives. The son cultivated the land and raised crops which were seized on execution against the father. The son brought replevin. Held, that as between the parties to the suit, the agreement was not within the statute, 9 Neb. 384.

to affect in any manner the power of a testator in the disposition of his real estate by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law.

SEC. 5. [Lease.]-Every contract for the leasing, for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the lease or sale is to be made.

SEC. 6. [Specific performance.] Nothing in this chapter contained shall be construed to abridge the powers of the court of chancery to compel the specific performance of agreements in cases of part performance.

FRAUDULENT CONVEYANCES AND CONTRACTS RELATIVE TO GOODS, CHATTELS AND THINGS IN ACTION.

SEC. 7. [When void.]—All deeds of gift, all conveyances, and all transfers or assignments, verbal or written, of goods, chattels, or things in action, made in trust for the use of the person making the same, shall be void as against the creditors, existing or subsequent, of such person.

SEC. 8. [Contract to be written.]-In the following cases every agreement shall be void, unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged therewith: First. Every agreement that, by its terms is not to be performed within one year from the making thereof. Second. Every special promise to answer for the debt, default or misdoings of another person. Third. Every agreement, promise or undertaking made upon consideration of marriage, except mutual promises to marry. Fourth. Every special promise by an executor or administrator to answer damages out of his own estate.

SEC. 9. [Same.]-Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void, unless-First. A note or memorandum of such contract be made in writing, and be subscribed by the party to be charged thereby; or, Second. Unless the buyer shall accept and receive part of such goods or the evidences, or some of them, of such things in action; or, Third. Unless the buyer shall, at the time, pay some part of the purchase money.

SEC. 10. [Public auction.]-Whenever goods shall be sold at public auction, and the auctioneer shall, at the time of sale, enter in a sale book, a memorandum specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of the person on whose account the sale is made, such memorandum shall be deemed a note of the contract of sale within the meaning of the last section.

SEC. 11. [Sale void unless accompanied by delivery.]-Every sale made by a vendor of goods and chattels in his possession or under his control, and

SEC. 5. The contract if made by an agent, must be in the name of his principal; if the agent contract in his own name or describes himself as agent for the principal it is the contract of the agent and not of the principal. 3 Neb. 213.

SEC. 6. 1 Neb. 137, 251. 2 Id. 124, 375. 3 Id. 214, 462. 5 Id. 357,559. 7 Id. 502. 8 Id. 369. 9 Id. 424. 10 Id. 234.

SEC. 7. A reservation in an assignment for a return of the surplus to the assignor if any remained after paying creditors, does not make it fraudulent. 7 Neb. 433. See chap. 6, ante p. 60.

SEC. 8. The servant of A was injured by the wrongful act of B. A physician was called in by B, who went to A's house, where the servant lay, and performed medical services, immediately after which A told him that B was responsible for the accident, adding: "But you need not be at all alarmed, I will see that you are paid," and the physician continued treating the patient until he was cured. Held, That the promise of A was void under the statute. 10 Neb. 364.

SEC. 9. The object of this section is not to avoid sales satisfactory to the parties, but merely to enable them in case of litigation to properly protect themselves by insisting upon certain specified modes of proof in order to enforce them. 9 Neb. 180. The defense given by this section is personal and cannot be interposed by strangers to the agreement. 10 Neb. 417.

SEC. 11. Creditors and subsequent purchasers in good faith can alone assail a chattel mortgage under which the mortgagor retains possession. And a purchaser must establish his own bona fides. If at the time of the purchase he knew of the existence of the mortgage, he takes the property subject to the claims of the mortgagee. 2 Neb. 251. A mortgage of a stock of goods with possession and power of sale in the mortgagor is void as to creditors and subsequent bona fide purchasers. 3 Neb. 75. 6 Neb. 219, 397. But it is valid between the parties, and a vendee who purchases with the intent to hinder and delay creditors cannot hold the goods against the mortgagee, although it was not recorded until after the pretended purchase. 8 Neb. 377. A provision that the mortgagor may retain the possession and have the use of the property, is not a power to sell and does not invalidate the mortgage. 6 Neb. 219, 397. The retention of possession is only prima facie evidence of

every assignment of goods and chattels, by way of mortgage or security, or upon any condition whatever, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession, of the things sold, mortgaged or assigned, shall be presumed to be fraudulent and void, as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith; and shall be conclusive evidence of fraud, unless it shall be made to appear on the part of the persons claiming under such sale or assignment, that the same was made in good faith, and without any intent to defraud such creditors or purchasers.

SEC. 12. [Creditors.]-The term "creditors," as used in the last section, shall be construed to include all persons who shall be creditors of the vendor or assignor at any time whilst such goods and chattels shall remain in his possession, or under his control.

SEC. 13. [Exception.]-Nothing contained in sections ten and eleven shall be construed to apply to contracts of bottomry or respondentia, nor to assignments or hypothecations of vessels or goods at sea, or in foreign ports, or upon the waters of a navigable stream, if the assignee or mortgagee shall take possession of such vessels or goods as soon as may be after the arrival thereof.

SEC. 14. [Chattel mortgage.]-Every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditor of the mortgager, and as against subsequent purchasers and mortgagers in good faith, unless the mortgage, or a true copy thereof, shall be filed in the office of the county clerk of the county where the mortgager executing the same resides, or in case he is a non-resident of the state, then in the office of the clerk of the county where the property mortgaged may be at the time of executing such mortgage, and such clerk shall endorse on such instrument or copy the time of receiving the same, and shall keep the same in his office for the inspection of all persons; and such mortgage or instrument may be so filed, although not acknowledged, and shall be valid as if the same were fully spread at large upon the records of the county. [1879, 107.]

SEC. 15. [Index.]-Such clerk shall also enter in a book to be provided by him for that purpose, the names of all the parties to such instruments, arranging the names of mortgagors alphabetically, and shall note thereon the time of filing such instrument or copy. Such mortgage when satisfied may be discharged by an entry by the mortgagee or his agent on the margin of such index, which shall be attested by the clerk without fee, and the original instrument or copy so filed shall be returned to the mortgager. [1879, 108.]

SEC. 16. [Ceases to be valid in five years.]-Every such mortgage shall cease to be valid as against the creditors of the person making the same, or subsequent purchasers or mortgagees in good faith, after the expiration of five years from the filing of the same copy thereof. Every such clerk shall be entitled to

fraud. 6 Neb. 333-In a controversy between the mortgagee and creditors of the mortgagor concerning property in possession of the latter, evidence that the mortgage "was made in good faith and without intent to defraud such creditors" is required to overcome the presumption of fraud arising from such possession. 7 Neb. 138. In order to prevent such presumption in favor of creditors, and the necessity of proof by the mortgagee of good faith in the execution of the mortgage to overcome it, there must be an actual and continued change of possession. Id.-A continued possession of goods, assigned by an execution debtor, up to the time of their being seized in execution, in the absence of a showing of good faith in him who claims under the assignment, is conclusive evidence that such assignment was fraudulent. 7 Neb. 433. And the same rule applies in case of a sale. 9 Neb. 50. The law will not protect a purchaser, even if he pay a valuable consideration, if the sale is made for the purpose of putting the property beyond the reach of creditors. Id. To render a conveyance, not fraudulent on its face, void as to creditors, the fraudulent purpose must be shared by both the grantor and grantee 6 Neb. SEC. 14. "An act to amend sections 73, 74 and 75., of chapter 43, Revised Statutes 1866, entitled Real Estate." Laws 1879, 107. Took effect June 1, 1879. Placed here in accordance with explanation given in note to sec. 1, p. 286. A neglect to record the mortgage (the original section required a record) discharges a surety, if such neglect occasion a loss of the security. But it is not enough that the debtor has squandered the property, it must appear that such neglect enabled him to pass it to bona fide purchasers. 2 Neb. 271. Prior to the passage of this section the mortgage to be valid must have been acknowledged. 7 Neb. 235. As between the parties the mortgage need not be in writing; a verbal agreement to give and accept security is valid except as to creditors and bona fide purchasers. 8 Neb. 4.

400.

And see 2 Neb. 186.

receive the following fees for services under the provisions of this chapter: For filing such instrument or copy thereof, ten (10) cents; for entering the same in a book, ten (10) cents; and for certified copies of such instruments so filed as aforesaid for every one hundred words, ten (10) cents. [1879, 108.]

GENERAL PROVISIONS.

SEC. 17. [Agreements to defraud.]-Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods or things in action, or of any rents or profits issuing therefrom, and every charge upon lands goods or things in action or upon the rents and profits thereof, made with the intent to hinder, delay, or defraud creditors or persons of their lawful rights, damages, forfeitures, debts or demands, and every bond or other evidence of debt given, suit commenced, or decree or judgment suffered, with the like intent as against the person so hindered, delayed, or defrauded, shall be void.

SEC. 18. [Grants or assignments.]-Every grant or assignment of any existing trust in lands, goods, or things in action, unless the same shall be in writing, subscribed by the party making the same, shall be void.

SEC. 19. [Void as to heirs, etc.]-Every conveyance, charge, instrument, or proceeding declared to be void, by the provisions of this chapter, as against creditors or purchasers shall be equally void against the heirs, successors, personal representatives or assignees of such creditors or purchasers.

SEC. 20. [Fraudulent intent.]-The question of fraudulent intent in all cases arising under the provisions of this chapter, shall be deemed a question of fact, and not of law, and no conveyance or charge shall be adjudged fraudulent, as against creditors or purchasers, solely on the ground that it was not founded on a valuable consideration.

SEC. 21. [Title of purchasers.]-The provisions of this chapter shall not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration, unless it shall appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor.

SEC. 22. [Lands.]-The term "lands," as used in this chapter, shall be construed as co-extensive in meaning with "lands, tenements, and hereditaments," and the terms "estate and interest in lands," shall be construed to embrace every estate and interest, freehold and chattel, legal and equitable, present and future, vested and contingent, in lands as above described.

SEC. 23. [Conveyance.]-The term "conveyance," as used in this chapter, shall be construed to embrace every instrument in writing (except a last will and testament) whatever may be its form, and by whatever name it may be known in law, by which any estate or interest in lands is created, aliened, assigned, or surrendered.

SEC. 24. [Consideration.]-The consideration of any contract or agreement, required by the provisions of this chapter to be in writing, need not be set forth in the contract or agreement, or in the note or memorandum thereof, but may be proved by any other legal evidence.

SEC. 25. [Agents.]-Every instrument required by any of the provisions of this chapter to be subscribed by any party, may be subscribed by his agent, thereunto authorized by writing.

SEC. 17. In stating a cause of action under this section it is necessary to allege that the assignment was made "with the intent" either to hinder, delay or defraud the plaintiff. 7 Neb. 434. When a vendee participates in the fraud of the vendor by accepting a conveyance with the intent to defraud creditors, the conveyance is void although full consideration was paid for the property; but a bona fide purchaser, for a valuable consideration, without notice, is protected whether purchasing from the fraudulent grantor or grantee. 6 Neb. 99. See 7 Neb. 24. Chap. 6 ante, p. 60.

SEC. 20. The question of intent in case of an alleged fraudulent conveyance by a husband to his wife is one of fact for submission to the jury. 4 Neb. 171; and see 6 Neb. 99. If the illegality of the instrument appear on its face it is the province of the court to pronounce it fraudulent as to creditors, but if it contain no unlawful provisions it can only be declared void by proof of fraud in fact which is a question for a jury to find. 6 Neb. 219,400. If however certain facts are conceded to exist, the question of their sufficiency to indicate a fraudulent intent is one of law for the court to determine. Id.

SEC. 25. Cited 1 Neb. 52. 3 Neb. 213. See note to sec. 5, p. 287.