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and its contents, and its condition.
was called on for a statement of the facts in
regard to this car, and from that fact he
remembered the circumstances. Witness
further described the manner of sealing the
cars. That it was the duty of the freight-
train conductor, upon receiving a freight
train, to go and look at the cars, and see that
they were properly sealed, describing the
manner of doing it, and stated that was done
in the case of this car. That the doors on
both sides were sealed, and the seals intact.
That he arrived in Kansas City with the train
at about 3 o'clock A. M., being one hour late,
and turned the train over to the yard-master,
with all the seals intact.

That he of hogs to Kans. City station, at the rate of 37 dollars per car-load, the same being a special rate, lower than the regular rates mentioned in their tariff, the said party of the second part hereby releases the said party of the first part from the liability of a common carrier in the transportation of said stock, and agrees that such liability shall be only that of a private carrier for hire, and from any liability for any delay in shipping said stock after the delivery thereof to the agent of said party of the first part, or for any delay in receiving the same after being tendered to said agent. And said party of the second part hereby accepts for such transportation the cars provided by said first party, and Frederick H. Mickel wait, witness for the used for the shipment of said stock, and heredefendant below, testified that on or about by assumes all risk of injury which the aniMay 29, 1883, he was freight conductor on mals or either of them may receive in consethe Missouri Pacific Railroad line between quence of any of them being wild, unruly, Louisville, Neb., and Hiawatha, Kan.; that or weak, of maiming each other or themhe conducted the train having car 4,587, (con- selves, or in consequence of heat or suffocataining the hogs in question;) that he re- tion, or other ill effects of being crowded in ceived the car at Stella, and delivered it at the cars, or on account of being injured by Hiawatha; that on receiving it he made an the burning of hay, straw, or other material examination of the seals, and found them used by the owner for feeding the stock or "O. K.," and that they remained untam- otherwise, and all risk of damage that may pered with until he delivered them to the next be sustained by reason of any delay in such conductor at Hiawatha, at about 2:45. transportation, and all risk of escape or robOn the trial the plaintiffs introduced in ev-bery of any portion of said stock, or of loss idence the following contract: "Rules and or damage from any other cause or thing, Regulations for the Transportation of Live- not resulting from the willful negligence of Stock. Live-stock of all kinds at the follow-the agents of the party of the first part. And ing estimated weights, first-class rates: One said party of the second part further agrees horse, mule, or horned animal, 2,000 lbs.; that he will load, unload, and reload said two horses, mules, or horned animals, 3,500 stock at his own risk, and feed, water, and lbs.; three horses, mules, or horned animals, attend to the same at his own expense and 5,000 lbs.,―each additional animal to be rated risk, while it is in the stock-yards of the at 1,500 lbs.; jacks or stallions, 4,000 lbs. party of the first part, awaiting shipment, each; calves, hogs, and sheep, each 300 lbs. and while on the cars, or at feeding or transIn case the consignor agrees to save the Mis- fer points, or where it may be unloaded for souri Pacific Railway Company from liability any purpose. And it is further agreed that for any or all the causes enumerated in the said party of the second part will see that following contract, and also agrees to load, said stock is securely placed in the cars furunload, feed, and water and attend to the nished, and that the cars are safely and propstock himself, etc., as specified therein, the erly fastened, so as to prevent the escape of special rates of tariff based on such contract the stock therefrom. And it is further will be given. The said Missouri Pacific agreed that, in case the said party of the first Railway Company, as aforesaid, will not as-part shall furnish laborers to assist in loading sume any liability over one hundred dollars per head on horses and valuable live-stock, except by special agreement. For the purpose of taking care of the stock, the owner or men in charge will be passed on the train with it; and all persons thus passed are at their own risk of any personal injury from any cause whatever, and must sign release to that effect, indorsed on contract. LiveStock Contract. No. of Car, 4,587. Initials, Mo. P. STELLA STATION, May 29, 1883. This agreement, made between the Missouri Pacific Railway Company of the first part, and M. H. Vandeventer of the second part, witnesseth that whereas, the Missouri Pacific Railway Co., as aforesaid, transports live-stock only as per above rules and regulations: now, in consideration that the said party of the first part will transport for the said party of the second part one car-load

and unloading said stock at any point, they shall be subject to the orders and deemed the employes of the said party of the second part while so assisting. And, for the consideration before mentioned, said party of the second part further agrees that, as a condition precedent to the right to recover any damages for any loss or injury to said stock, he will give notice in writing of his claim therefor to some officer of said party of the first part, or its nearest station agent, before said stock is removed from the place of destination above mentioned, or from the place of delivery of the same to said party of the second part, and before said stock is mingled with other stock. And the said party of the second part, in consideration as aforesaid, further agrees that in case of total loss the sum of one hundred dollars per head shall be taken and deemed as liquidated damages for

such loss, and in case of injury or partial | "the law charges this person thus intrusted loss damage shall be measured in the same to carry goods against all events but the acts proportion. This contract does not entitle of God and the public enemy;" but that, in the holder or other parties to ride in the.cars of any train, except the train in which his stock referred to herein is drawn or taken. Neither does it entitle him (and the party of the second part named in this contract so expressly stipulates, admits, and agrees) to re-enforced the obligations assumed by common turn passage from

to

the language of Mr. Justice STRONG in the opinion of the supreme court of the United States in the case of Express Co. v. Caldwell, 21 Wall. 264, "Notwithstanding the great rigor with which courts of law have always unless carriers, and notwithstanding the reluctance with which modifications of that responsibility imposed upon them by public policy have been allowed, it is undoubtedly true that special contracts with their employers limiting their liability are recognized as valid, if in the judgment of the courts they are just and reasonable,-if they are not in conflict with

cited, was delivered in October, 1874, and scarcely more than substantially followed the earlier ones of York Co. v. Railroad Co., 3 Wall. 107, and Railroad Co. v. Lockwood, 17 Wall. 357.

this said contract is presented within 5 days from the date hereof. Nor does it entitle any person except the party of the second part, and parties who accompany him in charge of said stock for the purpose of assisting him in taking care of them as specified in and upon this contract, (and does not include women, infants, or other persons un-sound legal policy." This opinion, last above able to do and perform the services required, as expressed in this contract,) to return passage within the said 5 days; the object, purpose, and intent of the return pass being to enable the said party of the second part hereto, or his men in charge as expressed in contract, and no other person, to return to thereon, at any time within 5 days from date hereof, and not thereafter. And it is further stipulated and agreed between the parties hereto that, in case the live-stock mentioned herein is to be transported over the road or roads of any other railroad company, the said party of the first part shall be released from any liability of every kind after said livestock shall have left its road, and the party of the second part hereby so expressly stipulates and agrees; the understanding of both parties hereto being that the party of the first part shall not be held or deemed liable for anything beyond the line of the Missouri Pacific Railroad Company, excepting to protect the through rate of freight named therein. The evidence that the said party of the second part, after a full understanding thereof, assents to all the conditions of the foregoing contract, is his signature hereto. [Signed.] F. R. MASON, Agent for the Missouri Pacific Railway Company. M. H. VANDEVENTER, Shipper."

Under this contract, it is claimed by the plaintiff in error that the defendants in error, not having given notice in writing of their claim for reimbursement to some officer of the railroad company, or to its nearest station agent, before the removal of the car-load of hogs from its place of destination, or from its place of delivery to the shipper, before the stock was mingled with other stock, they have therefore no right of action against said railroad company for a loss of any portion of said hogs. The plaintiff in error cites in support of this 19 Cent. Law J. 164; also Railroad Co. v. Black, 11 Bradw. 465; Dawson v. Railroad Co., 76 Mo. 514; and Moore v. Railroad Co., L. R. 10 Ir. 95.

This article and these cases are to the effect that the law governing common carriers, both in England and America, is to-day substantially as laid down by Lord Holt in the year 1703, quoted in the article cited, that

The present constitution of this state was framed, submitted, and adopted in the year 1875. Section 4, art. 11, of the constitution, provides that "the liability of railroad corporations as common carriers shall never be limited." This clause expresses the supreme law of the state. If we can divine its meaning, then, as to us, the question is settled. In following that general rule of construction,-to consider the old law and the mischief, in order to arrive at the meaning of a proposed remedy,-we here take the old law as construed by the supreme court of the United States in the above case, and I think the mischief may be assumed to have been the facility with which common carriers were enabled, either by deception or downright coercion, to induce shippers to waive their rights under the law, and enter into special contracts of shipment; and while I concede, as a general proposition, that the true office of a state constitution is mainly to limit the powers of the legislature, and not to limit the effect of contracts between parties, yet nearly all, and ours especially, contain departures from this rule. There may have been instances of legislative limitation of the liability of railroad corporations as common carriers in some of the states of the Union or in Great Britain. My other engagements have not allowed me to make an exhaustive examination of the question, but I am aware of none, and am quite sure that, if even some such existed, the mischief resulting was not appreciated in this state sufficiently to have originated the constitutional provision under consideration. So I conclude that the object and intent of the convention in proposing, and of the electors in adopting, this provision of the constitution here referred to, was to put it out of the power of railroads as common carriers to limit their liability as such by special agreements with shippers, and thus remove from their officers and agents ali temptation to effect said exemption from liability, and the loss and damage to property

which might of necessity follow the release | court to refuse to send the jury back at the of their responsibility and that of their agents therefor. See Railroad Co. v. Washburn, 5 Neb. 117, a case which arose under the old constitution, but was heard in this court under the new.

request of the defendant for the purpose of answering that interrogatory. These interrogatories were submitted at the request of the defendant,-a request which should have been refused as to the second interrogatory. Therefore the refusal of the court to send the jury back for the purpose of answering it was error without prejudice to the plaintiff in error.

As to the evidence of the number of hogs shipped by the plaintiffs, and received from them by the defendant in its car, and the number delivered by it to the consignee of the plaintiffs at Kansas City, the evidence of the number shipped was before the jury, and tended to prove that there were 69 hogs shipped; and, while it must be admitted that had the evidence in regard to the number delivered by the defendant to the consignee of the plaintiffs at Kansas City been objected to by the defendant when offered on the trial, it would have been rejected; but as it was not objected to, and as it tended to prove that but 54 of the said 69 hogs were delivered to the consignee of the plaintiffs, and was apparently considered by the jury in making up their verdict, its competency will not be here considered. The judgment of the district court is therefore affirmed. The other judges concur.

Counsel for plaintiff in error complains of the second instruction given by the court to the jury on the trial. Nos. 1 and 2 are as follows: “(1) The jury are instructed that the defendant is a common carrier as to all property within the scope of its chartered powers, and it cannot by special agreement divest itself of such character, and therefore it is liable for the negligence of its servants. (2) The jury are instructed that the contract in writing declares that it is in consideration of a special rate, and if the jury believe from the evidence that the stock was not shipped on a special rate, but that plaintiffs paid the full regular rates for such service, then the special reservations, exceptions, or limitations sought to be availed of by defendant are without consideration, and the plaintiffs are not bound by the same where they restrict or limit the liability of defendant as a common carrier." Instruction No. 1, falling within the meaning of the constitutional power as above construed, is approved. No. 2, in my opinion, goes too far in favor of the plaintiff in error, as it seems to imply that, had the property been shipped on a special rate, below the regular rate, the plaintiff in error could have availed itself of the special contract to evade its liability as a common carrier, which, as I understand the effect of (Supreme Court of Nebraska. March 20, 1889.) the constitutional provision, it could not do. EXEMPTION-WRONGFUL LEVY-RES ADJUDICATA No exception having been taken to the giving or the refusal to give other instructions, they will not be further considered.

As to the sixth clause of the shipping contract set forth herein, and specially invoked by the plaintiff in error, if it were conceded that that clause was binding upon the defendants in error, there is an entire want of evidence to bring the case within its provisions. Kansas City, Mo., was the place of destination of the property, within its meaning. The shipper agreed as a condition precedent to his right to recover damages for any loss or injury to stock to give notice in writing of his claim therefor to some officer of the party of the first part, or its nearest station agent, before said stock should be removed from its place of destination above mentioned, or from the place of delivery of the same to the party of the second part, and before such stock is mingled with other stock; and there is an entire lack of evidence, as shown by the bill of exceptions, of the removal of the stock from Kansas City, or of its having been mingled with other stock. As to the special findings of fact, the second interrogatory ought not to have been given to the jury, for the reason that there was no evidence before them from which they could answer it. Had there been such evidence, I agree with counsel that it would have been error on the part of the trial

HAMILTON, Sheriff, v. FLEMING.

-HUSBAND AND WIFE.

wrongfully selling exempt property under a final 1. Where, in an action against a sheriff for process, the petition alleged the seizure, sale, and filing of an affidavit with the officer showing the exempt character of the property, that it was exempt, that the plaintiff was a resident of the state, the head of a family, and that she was not the owner of a homestead, and that the property was of a particular value stated in the petition, it was held that the petition stated facts sufficient to con

stitute a cause of action.

2. Where, after the levy of an attachment upon exempt property, the defendant filed an affidavit of exemption, an inventory of all her property, by which she claimed that the property was exempt under the provisions of section 521 of the Civil Code, and the officer having the process failed to call appraisers or take any steps to ascertain whether or not the property was exempt, it was held that the decision of the justice of the peace, before whom the action was pending sustaining the attachment, was not conclusive upon the defendant in the action, but that she might maintain replevin or sue for the value of the property. 3. Where the property levied upon consisted of household goods, such as bedding, dishes, bed clothing, etc., belonging to the wife, and by the departure of her husband, for temporary or perof the family devolved upon the wife, she was enmanent purposes, the maintenance and support titled to the exemption as the head of the family. (Syllabus by the Court.)

Error to district court, York county; NORVAL, Judge.

Action by Hortense Fleming against Jaines H. Hamilton, sheriff. Defendant brings error.

France & Harlan, for plaintiff in error. | contention, State v. Sanford, 12 Neb. 425, Sedgwick & Power, for defendant in error. | 11 N. W. Rep. 868, and State v. Krumpos, 13

REESE, C. J. The original action in this case was instituted for recovering from the sheriff the value of certain personal property levied upon by him by virtue of an order of attachment, and subsequently sold under an order of sale for the satisfaction of the judg-proceeding could not be had before judgment, ment rendered on the principal case. It is contended that at the time of the seizure the property was exempt from execution. Upon a trial being had in the district court, a judgment was rendered in favor of defendant in error, for the value of the goods so taken and sold. Plaintiff in error brings the cause to this court for review, by proper proceedings

in error.

Neb. 321, 14 N. W. Rep. 409, are cited. The former case was an application for a mandamus to compel the constable to release property which he had levied upon by virtue of an attachment. The writ was denied by a divided court, upon the ground that the and that in an attachment an order requiring the constable to call appraisers would not be issued while the property was held by him under the attachment. The latter case is substantially the same, and neither one seems to go further than to decide that in actions accompanied by attachment proceedings mandamus will not lie to compel the officer to appraise and relinquish exempt property. These decisions were made by a divided court, and as the court is at present organized are not considered good law. In People v. McClay, 2 Neb. 7, and in State v. Cunningham, 6 Neb. 90, it was held that a writ of mandamus would lie in case of execution, and in the latter case that it would lie in case of attachment. But we do not think the inquiry here presented is material, for the reason that the record shows that the necessary inventory and affidavit were filed, but were not acted upon by the officer. It is quite probable that the justice of the peace might have ordered the property released, and quite true that the sheriff should have called ap

The first contention on the part of plaintiff in error is that the petition filed in the district court does not state facts sufficient to constitute a cause of action. This criticism is upon the theory that there was no allegation in the petition that defendant in error was a resident of the state at the time of the issuance of the attachment, nor that she had no lands, town lots, or houses, subject to exemption as a homestead; nor that the property levied upon was exempt from attachment or execution; nor that defendant in error had filed an inventory of her personal property with the officer by whom the sale was made. Upon an examination of the petition, we find that it is alleged that at the time the said or-praisers, as provided by law, but neither was der of attachment was levied upon the goods of defendant in error, she was a resident of this state and the head of a family, and not the owner of a homestead, and had filed her inventory of said property with plaintiff in error, and notified him that she selected said property to hold exempt from levy and sale under the laws of this state. While these allegations do not follow strictly the language of the statute, yet they must be held sutlicient. There is no allegation in terms that defendant in error was not the owner of "lands, town lots, or houses subject to exemption as a homestead," as in section 521 of the Civil Code, but the allegation that she was not the owner of a homestead must be treated, when assailed after verdict, as equiv-sale of the attached property was a final judg alent to the use of the language contained in the statute. By the section of the Code above referred to, a homestead may consist of lands or town lots, with the necessary buildings thereon, or of houses, and they are all included within the term "homestead," as used in the petition, and the averment must be taken as negativing the ownership of a homestead of either character.

It is next contended that defendant in error should have replevied the property levied on, or should have appeared before the justice who rendered the judgment under which the seizure was made, and had the property released, as being exempt from attachment, and that, failing to do so, she had waived her right to bring an action for the value of the property seized and sold. In support of this

done. Defendant in error might have substituted an action in replevin for the possession of the property shown to be exempt, (Mann v. Welton, 21 Neb. 541, 32 N. W. Rep. 599;) the proper foundation having been laid therefor. This right is also conferred by section 182 of the Civil Code. The quality of exemption having been fixed upon the property by the filing of the affidavit and inventory, at least so far as it was within the power of defendant in error to fix such quality, she might, perhaps, have maintained an action in replevin for the specific property, and, failing to do so, she could maintain her action for its conversion.

It is next contended that the order for the

ment, and that defendant in error could not ignore it and assert her right to claim the property as exempt; that in such case the remedy of the debtor is to assert the claim of exemption in the court from which the attachment was issued. While it is no doubt true that where the quality of exemption does not attach to the property under the specific exemption laws, the debtor must pursue the course provided by the statute as decided in Mann v. Welton, supra, yet we cannot see that by the failure of the officer to have the property appraised and the exempt property set off to the claimant, her right to further action could be thus destroyed. In opposition to this view the case of State v. Manly, 15 Ind. 8, is cited. In that case there appears to have been no objection to the

934.

attachment of the property before judgment. | the family would be deprived of the right to The defendant in the action appeared, and hold such property would in effect destroy upon the trial of the principal case judgment the beneficent purpose of exemption laws. was rendered against him, and the attached Frazier v. Syas, 10 Neb. 115, 4 N. W. Rep. property ordered to be sold. After the rendition of the judgment and the issuance of Some objection is made to the instructions the order of sale and before the sale the rela- given to the jury by the trial court, but as tor demanded that the attached property be they are consistent with the views here exset off to him as exempt, which the consta-pressed, they need not be noticed. We see no ble refused to do. The opinion is not clear error in them. in its statement of facts, and it does not appear that any legal remedy existed except that of setting up his claim, "that the property is exempt from sale in the court from which the attachment issues as a defense to such attachment." It is quite probable that if the right was given to file an inventory as in this state, the right to demand the exempt property was lost as in Mann v. Welton. Under the statutes of this state, governed as we must be by the oft-declared rule that statutes creating exemptions are remedial and must be liberally construed, we do not believe that defendant's rights were lost by the action of the sheriff in refusing to call appraisers. She complied with the requirements of the law in filing her inventory and affidavit. It was the duty of the sheriff to ascertain as to the exempt character of the property, if so exempt. Its further detention was a trespass, and defendant in error would have the right to replevin or maintain her action for conversion, as she might elect.

The last contention of plaintiff in error which we will notice is that the damages awarded were excessive, and that the evidence does not support the amount for which the jury found a verdict. There were four witnesses examined as to values. Defendant in error testified to the values of the various articles, making a total valuation of $140.50. Three witnesses were called by plaintiff in error, two of whom testified that the goods were worth $35, and one that they were worth $43.35. The verdict of the jury seems not to have followed the testimony of any witnesses as to value. It was evidently a compromise verdict, although not so shown by any direct evidence. A considerable portion of the property was shown to be old and badly worn, and it is probable that had it all been new, or substantially so, at the time of its seizure, it would have been worth the amount fixed by the verdict of the jury, or, perhaps, by the testimony of defendant in error. But such was not the case. Under all the evidence as to the quality of the property and its condition at the time of the levy, we are impressed with the belief that the verdict was for more than it should have been. For that reason the judgment of the district court will be reversed, unless defendant in error remit from the judgment the sum of $30 within 30 days from the date of the filing of this opinion. In case of the remittitur being filed, the judgment of the district court will be affirmed. Judgment accordingly. The other judges concur.

RAWLINS et al. v. KENNard et al.

CHATTEL MORTGAGES.

The next question presented is as to defendant in error being the head of the family, within the meaning of section 521 of the Civil Code. Under the rule stated in Scholler v. Kurtz, ante, 642, there was no error in submitting to the jury and in their finding that defendant in error was the head of the family to the extent of entitling her to the exemptions. In her affidavit, presented to the officer having the writ, she averred that she was the head of the family, and resided with her three minor children, of the ages of 3, 10, and 12 years, respectively; that prior to that time her husband had abandoned her; and that the support of the family devolved upon her. In her testimony, she testified that at the time of the seizure of the property (Supreme Court of Nebraska. March 20, 1889.) her husband was absent and contributed nothing to her support, although she was at that time expecting remittances from him; that he went away in August prior to the commencement of the suit against her, in December of 1886, first going to Kansas and afterwards to Wisconsin. Had he remained at home the property would have been exempt to the head of the family, without reference to its ownership, whether by the husband or wife. His departure, whether for permanent or temporary purposes, would not change the rule. The property consisted of featherbeds, pillows, bed-spreads, table-cloths, sheets, towels, bed-clothing, napkins, dishes, etc., such as are usually used, and which were used in the family of defendant in error, and were essential to the comfort of the family. To hold that by the departure of the husband

1. A description of property in a chattel mortgage is sufficient where it will enable a third person, aided by inquiries which the instrument itself suggests, to identify the property.1

2. One H. executed a chattel mortgage upon a span of mules to a machine company in July, 1885, in which the mules were described as "two brown mules, one four years old, the other five years old; weight about 950 pounds each." This mortgage was duly filed for record. On the 14th of August, 1885, H. executed a chattel mortgage to K. & Son, on two mules, described as follows: "One bay horse mule, five years old; one bay mare mule, five years old." This mortgage was afterwards duly filed for record. K. & Son had actual notice of the existthe mules described in its mortgage, and interroence of the mortgage to the machine company upon gated H. as to the number of mules possessed by him; and he informed them that he possessed two

stock in a chattel mortgage, see Barrett v. Fisch, As to what is a sufficient description of live(Iowa,) ante, 310, and cases cited.

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