SEC. 2. [Duties.]-In the absence or disability of the principal, the deputy shall perform the duties of his principal pertaining to his own office, but when an officer is required to act in conjunction with or in place of another officer, his deputy cannot supply his place.

SEC. 3. [Who may not be.]-The state auditor, treasurer and librarian, can neither of them appoint the other his deputy, nor can either the treasurer, sheriff, clerk or surveyor of a county appoint either of the others.

SEC. 4. [Sheriff.-The sheriff may appoint such number of deputies as he sees fit.

SEC. 5. [Oath.]-Each deputy shall take the same oath as his principal which shall be endorsed upon and filed with the certificate of his appointment.

SEC. 6. Allowance.]-When a county officer receiving a salary and no fees is compelled by the pressure of the business of his office to employ a deputy, the county commissioners may make a reasonable allowance to such deputy.

SEC. 7. [Acknowledgments.]-Deputy clerks of the district and county courts in this state are hereby authorized to take acknowledgments of deeds and other instruments of writing in the name of their principals, and said acknowledg ments shall be as legal and as valid as if taken by their principals. [1870 § 1, 17.) SEC. 8. [Acts legalized.]-All deeds or other instruments of writing heretofore acknowledged in the usual form before any deputy clerk of the district or 'county courts of any county in this state, shall be and they are hereby declared legal and valid. [Id. § 2.]

CHAPTER 25.-DIVORCE AND ALIMONY.

SECTION 1. [Void marriages.-Marriages which are declared void by section three of chapter 40, entitled "Marriages," are void without any decree of divorce. [R. S. 128. G. S. 344.]

SEC. 2. [Voidable marriage.]-In case of a marriage solemnized when either of the parties are under the age of legal consent, if they shall separate during such non-age, and not cohabit together afterwards, or in case the consent of one of the parties was obtained by force or fraud, and there shall have been no subsequent voluntary cohabitation of the parties, the marriage shall be deemed voidable.

SEC. 3. [Petition to annul marriage.]-When a marriage is supposed to be void, or the validity thereof is doubted, for any of the causes mentioned or referred to in the two preceding sections, either party, excepting in the cases where a contrary provision is hereinafter made, may file a petition in the district court of the county where the parties, or one of them, reside, for annulling the same, and such petition shall be filed, and proceedings shall be had thereon, as in the case of a petition filed in said court for a divorce; and upon due proof thereof, it shall be declared void by a decree or sentence of nullity.

SEC. 4. [Petition to affirm marriage.]-When the validity of any marriage shall be denied or doubted by either of the parties, the other may file a petition in the manner aforesaid, for affirming the marriage, and upon due proof of the validity thereof, it shall be declared valid by a decree or sentence of the court, and such decree, unless reversed on appeal, shall be conclusive upon all parties concerned.

SEC. 5. [Repealed by 1875, 80. Supplied by sec. 6.]

SEC. 6. Jurisdiction of district court.]-A divorce from the bonds of matrimony may be decreed by the district court of the county where the parties, or one of them, reside, on the application by the petition of the aggrieved party

NOTE.-Chapter XVI, R. S. 128. Chap. 19, G. S. 344.

SEC. 6. The action is in its nature a proceeding in rem. 9 Neb. 202.-Evidence held insufficient to grant divorce. 7 Neb. 39. 10 Neb. 144. A and B were married in 1873, each at that time having a number of children by a former marriage. The wife refused to remove to the home of her husband, and about two years after the marriage abandoned him, and thereafter brought an action for divorce, which was denied on her petition, but granted to the husband on his answer. Held, That on the testimony in the case a decree for permanent alimony was erroneous. 10 Neb. 468.-Summons in divorce cases may be served in any county in the state. 10 Neb. 349.-Sec. 82, civil code, does not apply to actions for divorce. 10 Neb. 390.

in either of the following cases: First. When adultery has been committed by any husband or wife. Second. When one of the parties was physically incompetent at the time of the marriage. Third. When one of the parties has been sentenced to imprisonment in any prison, jail, or house of correction, for three years or more; and no pardon granted, after a divorce for that cause, shall restore such party to his or her conjugal rights. Fourth. Where either party shall wilfully abandon the other without just cause, for the term of two years. Fifth. When the husband or wife shall have become an habitual drunkard. Sixth. When either party shall be sentenced to imprisonment for life; and no pardon shall effect a decree of divorce for that cause rendered. [Amended 1875, 79.]

SEC. 7. [Causes for.]—A divorce from the bonds of matrimony or from bed and board, may be decreed for the cause of extreme cruelty, whether practiced by using personal violence, or by other means; or for utter desertion of either party for the term of two years; and a like divorce may be decreed, on complaint of the wife, when the husband, being of sufficient ability to provide suitable maintenance for her, shall grossly, or wantonly and cruelly refuse or neglect so to do.

SEC. 8. [Residence.]-No divorce shall be granted unless the complainant shall have resided in this state for six months immediately preceding the time of filing the complaint, or unless the marriage was solemnized in this state, and the applicant shall have resided therein from the time of the marriage to the time of filing the complaint.

SEC. 9. [Collusion.-No divorce shall be decreed in any case when it shall appear that the petition therefor was founded in, or exhibited by collusion between the parties, nor where the party complaining shall be guilty of the same crime or misconduct charged against the respondent.

SEC. 10. [Petition-Service-Witnesses.]-A petition or bill of divorce, alimony and maintenance, may be exhibited by a wife in her own name, as well as a husband; and in all cases the respondent may answer such petition or bill without oath; and in all cases of divorce, alimony and maintenance, when personal service can not be had, service by publication may be made as is provided by law in other civil cases under the code of civil procedure; and either party may be a witness as in other civil cases. [Amended 1869, 28]

SEC. 11. [Proceedings.]-Suits to annul or affirm a marriage, or for a divorce, shall be conducted in the same manner as other suits in courts of equity; and the court shall have the power to award issues, to decree costs, and enforce its decrees as in other cases.

SEC. 12. [Alimony-Costs.]-In every suit brought, either for a divorce, or for a separation, the court may, in its discretion, require the husband to pay any sum necessary to enable the wife to carry on or defend the suit during its pendency; and it may decree costs against either party, and award execution for the same; or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.

SEC. 13. [Restraint.]-After the exhibition of the petition in a suit to annul a marriage, or for a divorce, whether from the bonds of matrimony, or from bed and board, the court may, at any time, either in term or vacation, on the petition of the wife, prohibit the husband from imposing any restraint upon her personal liberty during the pendency of the cause.

SEC. 14. [Custody of children.]-The court may in like manner, on the application of either party, make such order concerning the care and custody of the minor children of the parties, and their suitable maintenance, during the pendency of such suit, as shall be deemed proper and necessary, and for the benefit of the children.

SEC. 15. [Same.]-Upon pronouncing a sentence or decree of nullity of a marriage, and also upon decreeing a divorce, whether from the bonds of matri

SEC. 10. The affidavit for service by publication is jurisdictional and must conform to the statute. When it appears that defendant cannot be served with process in this state, the record must show how jurisdiction was acquired. 9 Neb. 191. SEC. 12. Alimony allowed during pendency of action in supreme court on appeal. 7 Neb. 42.

mony or from bed and board, the court may make such further decree as it shall deem just and proper concerning the care, custody and maintenance of the minor children of the parties, and may determine with which of the parents the children, or any of them shall remain.

SEC. 16. [Same.]--The court may from time to time, afterwards, on the petition of either of the parents, revise and alter such decree, concerning the care, custody and maintenance of the children, or any of them, and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children shall require.

SEC. 17. [Real estate.]-Whenever the nullity of a marriage or a divorce from the bonds of matrimony, for any cause, excepting that of adultery committed by the wife, shall be decreed, and when the husband shall be sentenced to imprisonment for life, and also upon every divorce from bed and board, the wife shall be entitled to the immediate possession of all her real estate, in like manner as if her husband were dead.

SEC. 18. [Same.]-Upon every such dissolution of a marriage, as is specified in the preceding section, and also upon every divorce from bed and board, the court may make a further decree for restoring to the wife the whole, or such part as it shall deem just and reasonable, of the personal estate that shall have come to the husband, by reason of the marriage, or for awarding to her the value thereof, to be paid by her husband in money.

SEC. 19. [Trustees.]-Upon every divorce for adultery committed by the husband, and upon every divorce from bed and board for any cause, when any personal estate of the wife, or money in lieu thereof, shall be awarded to her, as provided in the preceding section, the court, instead of ordering the same to be delivered or paid into the hands of the wife, may order it to be delivered or paid into the hands of a trustee or trustees, to be appointed by the court, upon trust, to invest the same, and to apply the income thereof to the support and maintenance of the wife, and of the minor children of the marriage, or any of them, in such manner as the court shall direct.

SEC. 20. [Trustees to give bond.]-Such trustees shall also pay over the principal sum to the wife and children of the marriage, when ordered by the court, in such proportions and at such times as the court shall direct, regard being had in the disposition of said income, as well as of the principal sum, to the situation and circumstances of the wife and children; and the said trustees shall give such bonds as the court shall require, for the faithful performance of their trust.

SEC. 21. [Examination of husband.-Whenever the court shall think proper to award to the wife any of her personal estate, or any money in lieu thereof, in pursuance to the foregoing provisions, such court may require the husband to disclose, on oath, what personal estate has come to him, by reason of the marriage, and how the same has been disposed of, and what portion thereof still remains in his hands.

SEC. 22. [Alimony.]-Upon every divorce from the bonds of matrimony for any cause excepting that of adultery, committed by the wife, and also upon every divorce from bed and board, from any cause, if the estate and effects restored or awarded to the wife shall be insufficient for the suitable support and maintenance of herself and such children of the marriage as shall be committed to her care and custody, the court may further decree to her such part of the personal estate of the husband and such alimony out of his estate as it shall deem just and reasonable, having regard to the ability of the husband, the character and situation of the parties, and all other circumstances of the case.

SEC. 23. (Dower.1-When the marriage shall be dissolved by the husband being sentenced to imprisonment for life, and when a divorce shall be decreed for the cause of adultery, committed by the husband, or misconduct or drunkenness of the husband, or on account of his being sentenced to imprisonment for a term of three years or more, the wife shall be entitled to her dower in his lands in the

same manner as if he were dead; but she shall not be entitled to dower in any other case of divorce.

SEC. 24. [Rights of husband.]-When a divorce shall be decreed for the cause of adultery committed by the wife, the husband shall hold her personal estate forever, and he shall hold her real estate so long as they both shall live; and if he shall survive her, he shall hold her real estate for his own life, as tenant by curtesy.

SEC. 25. Rights of wife.-In the case last mentioned the court may, by the decree, allow the wife for her subsistence, as much of her said personal or real estate, or of the income thereof, as such court shall judge necessary.

SEC. 26. [Security for alimony.In all cases where alimony or other allowance shall be decreed for the wife and children, the court may require sufficient security to be given by the husband for the payment thereof according to the terms of the decree; and upon the neglect or refusal of the husband to give such security, or upon his failure to pay such alimony or allowance, the court may sequester his personal estate, and the rents and profits of his real estate, and may appoint a receiver thereof, and cause such personal estate, and the rents and profits of such real estate, to be applied to the payment thereof.

SEC. 27. [Decree.-After a decree for alimony, or other allowance for the wife and children, or either of them, and also after a decree for the appointment of trustees to receive and hold any property for the use of the wife or children, as before provided, the court may, from time to time, on the petition of either of the parties, revise and alter such decree respecting the amount of such alimony or allowance, or the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any decree respecting any of the said matters, which such court might have made in the original suit.

SEC. 28. [Legitimacy of children.-A divorce for the cause of adultery committed by the wife, shall not effect the legitimacy of the issue of the marriage, but the legitimacy of such children, if questioned, may be determined by the court upon the proofs in the case; and in every case the legitimacy of all children begotten before the commencement of the suit, shall be presumed until the contrary be shown.

SEC. 29. [Same.]-Upon the dissolution of a marriage on account of the non-age, insanity, or idiocy of either party, the issue of the marriage shall be deemed to be, in all respects, the legitimate issue of the parent who, at the time of the marriage, was capable of contracting.

SEC. 30. Prior marriage.--When a marriage is dissolved on account of a prior marriage of either, and it shall appear that the second marriage was contracted in good faith and with the full belief of the parties that the former wife or husband was dead, the fact shall be stated in the decree of divorce or nullity, and the issue of such second marriage, born or begotten before the commencement of the suit, shall be deemed to be the legitimate issue of the parent who, at the time of the marriage, was capable of contracting.

SEC. 31. Consanguinity.]--Upon the dissolution by decree or sentence of nullity of any marriage that is prohibited on account of consanguinity between the parties, or of any marriage beween a white person and a negro, the issue of the marriage shall be deemed to be illegitimate.

SEC. 32. [Penalties.]-If any persons, after being divorced from the bonds of matrimony, for any cause whatever, shall cohabit together, they shall be liable for all the penalties provided by law against adultery.

SEC. 33. [Petition to annul marriage.-A petition to annul a marriage on the ground that one of the parties was under the age of legal consent, may be exhibited by the parent or guardian entitled to the custody of such minor, but in no case shall such marriage be annulled on the application of a party who was of the age of legal consent at the time of the marriage, nor when it shall appear that the parties, after they had obtained the age of consent, had freely cohabited as man and wife.

SEC. 34. [Same.]-A petition to annul a marriage on the ground of insanity or idiocy, may be exhibited by any person admitted by the court to prosecute as the next friend to such idiot or lunatic.

SEC. 35. Lunatic.]-The marriage of a lunatic may also be declared void upon the application of the lunatic, after the restoration of reason, but in such case no sentence of nullity shall be pronounced, if it shall appear that the parties freely cohabited as husband and wife, after the lunatic was restored to a sound mind.

SEC. 36. [Force or fraud.]-If there shall be any issue of a marriage, annulled on the ground of force or fraud, the court shall decree their custody to the innocent person, and may also decree a provision for their education and maintenance out of the estate and property of the guilty party.

SEC. 37. [Physical incapacity.]-A suit to annul a marriage on the ground of the physical incapacity of one of the parties, shall only be maintained by the injured party against the party whose incapacity is alleged, and shall, in all cases, be brought within two years from the solemnization of the marriage.

SEC. 38. [Confession and admission.]-No decree of divorce and of the nullity of a marriage shall be made solely on the declarations, confessions or admissions of the parties, but the court shall, in all cases, require other satisfactory evidence of the facts alleged in the petition for that purpose.

SEC. 39. [In what cases court may deny divorce.-In any suit brought for a divorce on the ground of adultery, although the fact of adultery be established, the court may deny a divorce in the following cases: First. When the offense shall appear to have been committed by the procurement, or with the conniyance of the complainant. Second. When the offense charged shall have been forgiven by the injured party, and such forgiveness be proved by express proof, or by the voluntary cohabitation of the parties with the knowledge of the offense. Third. When there shall have been no express forgiveness, and no voluntary cohabitation of the parties, but the suit shall not have been brought within five years after the discovery by the complainant of the offense charged.

SEC. 40. [Order for maintenance.]-In case of an application for a divorce from bed and board, although a decree for such divorce be not made, the court may make such order or decree for the support and maintenance of the wife and children, or any of them, by the husband, or out of his property, as the nature of the case may render suitable and proper.

SEC. 41. Revocation of decree.-When a decree of divorce from bed and board forever, or for a limited time, shall have been pronounced, it may be revoked at any time thereafter, under such regulations and restrictions, as the court may impose, upon the joint application of the parties, and their producing satisfactory evidence of their reconciliation.

SEC. 42. [Residence of wife.-If any married woman, at the time of exhibiting a petition against her husband, under the provisions of either of the last two sections, shall reside in this state, she shall be deemed an inhabitant thereof, although her husband may reside elsewhere.

SEC. 43. [Custody of children.]-When, from any cause, a husband and wife shall separate, and the wife shall claim possession of any child or children who may be the fruit of such marriage, not exceeding twelve years of age, said wife shall apply to the probate judge of the county wherein said husband and wife resided at the time of their separation, or in which the mother may reside at the time of said application for the custody of said child or children. The probate judge shall give said husband notice of the application, together with the time set for hearing the cause, which time shall not be less than three days from the service of the notice, and the notice may be served by leaving a copy at the usual place of residence of the husband. [12 Sess. Ter., 1867 § 1, 18.]

SEC. 44. [Same.]-If it shall appear that said mother is able to provide for the maintenance of such child or children, and should under the proof presented SEC. 43. "An act relating to the custody of children in certain cases.' Laws 12th Sess. Ter., 18.