TJiJfi OMAHA DAILY IJEJU : SATJITHDAY , NOVB riJTST ? 21 , 1800. 11
VI1UCE HOLES IN THE GROUND
Bomo of the Big Oavorns of This Part of
the Earth.
THEIR BEAUTY , EXTENT AND VARIETY
n of Cavern * of CotiMdernlilo
Ileninlii Unexplored < ! e < > -
Fiiriiinllon 111
Which They Abound.
When wo remember that almost every
yc r one or moro Important caves , hitherto
unknown , are discovered In Austria , France
or other regions of Uurope , whcro cavoa
abound , and that many caverns In the best-
etudlud districts ot Austria nro still known
only In name , It Is not surprlsltiB that a
Krcat deal .yet remains to bo learned about
the caves of our own country. It may be ,
says the I'rovldcnce .lournal , that the
larger part of them have been discovered ,
though this Is uncertain , but a great many
large caves are still unexplored or only
partly traced In tliclr Intricate windings ,
nnd are not known to most ot our people
oven by name. The fame of Mammoth
and l.uray has spread everywhere , but cast
of the Mississippi there are cavca extend
ing for miles , nnd we seldom or never hear
of them. How many of our people know ,
for Instance , that the C.IVP region ot In
diana U surpassed In Importance only by
that of Kentucky ? How many of us ever
heard of Wyandotte cave. In Crawford
county , Indiana , whose calclto formations
really tmrpaas In beauty nnd Interest these
of Mammoth cnvo , and whose main gal
leries aret about twenty-three ml led long ?
WP have the largest known cave In the
world , and ulso one. the beauty of whoso
formitlons Is believed to bo unsurpassed ;
but In ono respect none ot our caves Is so
Intnrestln ? as quite a number of the Kuro-
pcau caverns. Our cavc have contributed
very little to our knowledge of prehistoric
man , though a great deal has been learned
nbout him by the- study of his remains found
In th" cavw of Kurope. It Is well known
that there are thrco sitpcecdlng epochs In
the parly life of man , when his habitations ,
workshops and many specimens of his liandl-1
work ar.i to bo found chiefly In caverns or
tinder rock shelters ; but our caves scorn to
Vn'vf been llttlo used by the aborigines as
dwelling places , nnd nome archaeologists bc-
llevo that when the ancestors of our Indians
rame to this continent they had already
learned the art of building moro conven
ient shelters than caverns afford. In n
cold , wet corner of Luray cave , the other
lay , 1 saw- all that la supposed to bo visible
of the human skeleton which Is that of a
prehistoric man. One reason for thinking
- _ ' en , Is because most ot It Is held tightly In
T the grip of the stone floor , which Indicates
that thn remains nro of great ago.
All visitors to our largest caves remark
the wonderfully pure air that Is found even
In their deepest recesses. This Is chiefly
duo to the fact that they nro almost entirely
devoid of decomposing animal nnd vegetable
matter. No air so pure can bo found uuy-
vvhcrc In the world except on bare mountain
mitnmlts or In the polar Ice regions or life
less sand deserts. The ruins may still bo
neon of two of the twelve cottages that wcro
reared years ago In the depths of Mammoth
cave nnd occupied by a number ot consump
tive patients who wcro sent to live In them
In the hope that the pure air would bo bene
ficial. They forgot that they needed sun ns
well ns air , nnd the experiment was an utter
failure. They could not live In the cnvo
any moro than the plants nnd shrubs which
they set out around their darlc homos , hop
ing that with the u tin oat cnro they might
make them thrive.
Our three great centers of limestone caves ,
In the order of their Importance , are found
In Kentucky , Indiana and Virginia. Perhaps
not more than one In ten of them Is visited
by tourists , and hardly a larger proportion
1ms been thoroughly explored. Among the
Kentucky caves It scorns to bo bigness nnd
not beauty that attracts the tourist. Many
visitors flock to Mammoth cave , which Is , to
bo sure , very wonderful In Its Immensity ,
though most of Us long , low , narrow pas-
eagcs and enormous rooms are about ns bar
ren cf the weird nnd fantastic beauty which
calclto forms lend to a few favored caves as
the wnllh of a cellar. There nro many hun
dreds of limestone caves In the world , but
comparatively few beautiful ones.
Great holes may bo excavated by the
croslvo power of water , but uncss certain
conditions nro exactly fulfilled there will bo
none of the stone columns nnd draperies
and other brilliant nnd Imposing effects that
are peculiar to the stone scenery. These ob
jects nro not found except under certain
conditions of ventilation , dryncss and water
4 flow. A torrent of water jnay excavate , but
* ay.Hwill never decorate a subterranean ravine.
It Is the very slow dripping of water through
the limestone root that makes stalactites
and stnlngmltrs grow. It Is drops , trickling
for ngcB , that deposit. Instead ot carrying
awny , their burden of earthly matter and
beautifully tint It with nhndcs of red nnd
yellow , ns they happen to bo moro or less
, chnrgcd with carbonate of Iron. Adclsburg
{ Cave In Australia Is conspicuously first
\ \ among the beautiful caves of Kuropo. Visitors -
' itors to our Uiray cnvo nre > piloted through
the Inbyrlnthlan mazes for only two miles ,
while the long route In .Mammoth cnvo
covers sixteen miles , nnd tha totnl length of
Its tortuous passage Is supposed to exceed
150 miles. Hut Luray was formed under
conditions far moro favorable to decorative
effect , nnd whllo Mammoth cnvo has Its own
unrivaled claims , U Is not BO beautiful as
I u ray.
I'rof. Shafer has spoken of Diamond cave
as the most beautiful cavern In Kentucky ,
and yet we seldom hear of It. The cavra In
ndmondson county alone , of which Mam
moth cave Is the chief attraction , number
COO , and seven other counties. Qrayson , Hurt ,
\Varron , Uutlcr , I/OK.III , Christian nnd a
part of Trlgg. nro underlaid with caves. In
other words , 8,000 square miles of the lnglo
state of Kentucky are honeycombed with
caverns. Wo have no Martcl , as Franco
has , to Inspire enthusiasm for cave explora
tion , and scores of Kentucky's caves will
probably not be explored for years to come.
Many that have been casually examined ,
like White's , Proctor and Grand Crystal
cavca , show very little that Is noteworthy ,
but a good deal of Intorctitlng history Is
connected with many others. Human re
mains have been found In Mammoth , Saun
ders , Haunted nnd Dry caves. Putnam
found In Salt cave well-preserved e a nil a la
and Implements that are believed to have
belonged prehistoric man. Salt cave has
yielded that rare avis among nrchacologlc.il
finds In our territory a well-preserved
mummy , which now rests In the * museum of
the American Antln.uarl.in society In Wor
cester. Doubtless many of theau caverns
are worthy of study and will In time receive
It. The same llmcatono formation extends
down lut'i Tennessee , which , accordingly ,
has caverns of Its own ; and the formation
also crosses the Ohio river Into Indiana ,
whcro In Crawford , Lafrcnco and Orange
counties Is the eeccnd moat Important Amer
ican cave region.
Visitors to the largest of thcso caves , Wy-
nndotte , In Crawford county , usually atari
from the town of Lcavcnworth , on the Ohio
river. There Is nothing disappointing about
this second Urgent at our caverns , though
there nro very few persons who over trav
ersed all of Its twenty-thrco miles of ram
ifying passages. It Is richer In flno drlp-
atone formation than Mammoth cave , and
far from Us mouth Is a superb accumulation
of gypsum crystals , almost equal to those
of Mammoth cave , where the Imitative
forms In gypsum of Mowers , vines , shrub-
bury and so on are among the chief won
ders of our largest cavern , OJd Fellows'
i vj ll , the largest room In Wyandotte , IB
210 feet long , 100 feet wide and 80 foot high.
Orange nnd Lawrcnco counties are also
very rich In caves , among which are Camp-
boll's ( a half mlle long ) , Dunne > hew'n ( nearly
two miles ) eng ) , Shlloh , or Wet ( about a
mile ) , Dry , Grlustaff , Connelly's , Harmer'a.
Uonclsou's llluo Spring , liuizard'g , und oth-
CASTOR IA
For Infants and Children.
era ; ninl In Orange county particularly In
neon dm phpnoinrnon , no chnraatcrlitlc ol
llmeitono ciuo rcRlon * , of disappearing rlv-
cm. Tlio most Important of thin typo la
the I.out river , which li iwnllowed up In
llio rnrth IIvn times before It flnnlty cornea
to the niirfnco to nUy. Whcro It finally
emerKCfl nl OrnnROvlIlp , at the bottom of a
wooded ravlno , It Is forty feet wlilc.
Wynndotto used to bo called Sallpctro
cave , and In the days when It was expen
sive to Import gunpowder , and the pioneers
made their own ammunition , they often
visited this cave for tliclr saltpetre. II
will bo remembered that when England
cut oft our supply of this commodity , In
the war of 1812 , our government was tle-
pomlcnt upon the miners of the Ohio valley.
Six yearn earlier Dr. Samuel Urown ol
Lexington , Ky. , made a journey of 1,000
miles on horseback to Inform the Ameri
can Philosophical noddy that the caves
of Kentucky were rich In saltpetre. Ho
was an ardent patriot , and thought his conn ,
try might have need of this Information.
His statement was remembered when the
war began. Then there were busy times
In Mammoth and a few other caves. They
still flhow In the dark passages of Mam
moth cave a few hoof prints of the oxen ,
made olfihty-four years ago , and the stalls
whore the animals were fed. Their share
In tht > work was to haul the nitrous earth
to hoppers , where It was treated with
water , and the solution of salts thus ob
tained was piped out of the cave to the
crystall/atlon troughs. Then trains of pack
mutes carried tha crystals across the moun
tains to the seabord. It Is Interesting to
remember that caves supplied our govern
ment with the means of making gun
powder when we sorely needed It. In 1814
the firm that produced saltpetre from Mam
moth cave cleared 120,000. Hut when the
war ended the demand fell on" , the manu
facture was stopped , and has never been
resumed. Many of our caves contain largo
fiuantltlcs of bat guano , but though Its
value as a fertilizer has been proven by
analysis , no effort has ever been made to
put It on the market. This will probably
bo done some day. Only a few of these
hundreds of caves can bo turned to good
account for exhibition purposes. If capital
could sco some other way to make money
out of them , the number that arc still un
explored and almost unknown would not
be so large.
The blue and blue-gray limestone caves of
the great valley of Virginia belong to a
much older geological era than those of Ken
tucky , and are smaller than the western
cavia. Tbolr walls are moro elaborately
adorned , and they more nearly resemble the
caves of Austria and France than those In
our other great cave centers. The counties
of Shcnandoah , I'ago , Madison , Greene , Albe-
marle , Augusta and Hockbrldgc , In Virginia ,
were known long before Luray was discov
ered to bo rich In cavro. Kor many years-
Weycr's cave , about sixteen miles from
Staunton , was supposed to bo the largest
and finest cave In the Virginia district. It
was discovered In 1SOC. Then , In 1878. a pho
tographer named I * , n. Stebblns , attracted
by the sink holes on a conical hill about a
mile from the village of Luray , told the
townspeople ho was sure there must bo u
cave under that hill. Ho began digging here
and there on the hill. He enlisted the Inter
est of two or three other men who helped
him In his search. For weeks they found
nothing. The villagers called them "cave
rats" and made them the butt of gcol-
naturcd ridicule. Hut he laughs best who
laughs last.
On August 13 Stebblns and his comrades
began to examine n depression on the hlll-
sldo about forty feet In diameter and ten
feet deep , half filled with loose stones , grass
and weeds. They spent some hours remov
ing the obstructions , and at last found an
opening through which a current of nlr was
rising. A. J Campbell was lowered by
means of a rope , and reaching the bottom ,
candle In haud , ho peered about him. Ab
sorbed by the wonderful scene , ho forgot
his comrades , who became alarmed by his
long absence , and sent his nephew down
after htm. Luray cave had been discovered.
The name of the quiet village had been
made famous by the men who had becu
ridiculed.
Thcro arc many caves In this remarkable
region. Count's , nuffner's and Water caves
nro In the Immediate neighborhood of Lu
ray. King's cave , which the Indians used
as a cemetery , and llobcrt's cave uro about
eight miles north. Diamond hall In 7.\r- \
klo's cave , about six miles from New Mar
ket , Is well worth seeing , and nearer to
Now Market Is a large and still only partly
explored cavern. In Organ cave , which ex
cursionists from Wblto Sulphur Springs
often visit , the sweetest of tones may bu
elicited by striking with a stick the slen
der columns of dripstone. Then there arc
the Shcnandoah grottoes , Madison cave , and
others of Ices renown. Many may bo In
terested to know that our word "grotesque"
la derived from "grotto , " referring to the
fantastic results of her fancy that nature
leaves In these- works of her hands.
It Is needless to enumerate hero the con
siderable number of caves found In other
states , particularly In New York , Pennsyl
vania , Massachusetts , Tennessee , Georgia
and Alabama. Uvcry one who can do so
should see a great cave at least once In
his life. U Is easy , comfortable and safe
to visit the leading show caves. They are
supplied with platforms , stairways and rail
ings , and every other appliance for con
venience and safety. Visitors need not
wet their feet , and there Is no danger of
a fall. No change of dress Is necessary.
Hut It Is well not to emulate the lady who
recently descended Into tnc depths In an
elaborate velvet dress and train , or the
other lady who greatly surprised the guide
by driving up to the cave house with a
trunk , prepared to make a complete change
of attire.
IJXIT THIS 11 KM. .
Coliiiiililnit Liberty IVnlt-r Citrtcil
Atvny for De-lit.
Silent , and shrouded In cobwebs , the erst
while clamorous Columbian liberty bell was
dug out of a barn In Kvanston Monday and
carted to Chicago. A burden of debt and
an attachment caused the profanation of
the World's Fair relic.
In cold , evcry-day language , says the Chicago
cage Tribune , the Henry McShano Manufac
turing company declared It had not been
paid for casting the pealcr. So the firm's
agent , J. II. Gild , and Deputy Sheriff Good
man went to Kvanston , loaded nine tons of
the relic Into a six-home truck and brought
the bell to Chicago. From hero It will be
shipped to Haltlmoro , where the firm In
tends to place It on exhibition.
For the last six months the bell has Iain
neglected In a barn at Hvaimton , In charge
of Us custodian , Captain George Knapp. who
was Intrtmtcd with Its care by the Liberty
Hell association. The Haltlmoro firm for
some tlrno has been threatening to attach
the bell for $1,200 , the coat of the casting.
A year ago. Just before the relic took its
final jaunt to the Atlanta exposition , at
tachment proceedings were begun against It
by K. C. Streetcr of the North Chicago Iron
works. The amount was only $125 , and Dr.
Oliver of Twcnty-Blxth street and Indiana
avcnuo , rather than to have the trip Inter
fered with , gave his note for the amount ,
and the attachment was lifted.
The bell , since the close of the World's
fair , has lost Its Interest to such an oxtrni
that the association made no effort to save
Us property. In Us Keeping-place at P.-ans-
ton It was covered with dust and cobwebs ,
so that It was scarcely recognizable.
Don't dally with rheumatism , purify your
blood and cure It at once by taking a course
of HooU'q Sarsaparllla.
ClIllIIOIl lit Sollll ( illlll.
A cannon made of solid gold , mounted
upon a carriage of rosewood , Inlaid with
costly gems , Is the unlquo bauble of warfare
that has conio Into the possession of the
Imperial army of Berlin. As a valuable
acquisition to the armament of the kaiser's
own soldiery this unlquo floldplcco Is moro
Interesting thin terrible. No other armory
In the world can boast of a field cannon so
beautiful or so costly. This singular gun
was presented to the IJcrlln army by the
managers of the Hamburg muicum , In whoso
keeping It has been tor two centuries. Guns
of .this sort are not produced today , and
war It made with cannon that are more
effective In their destructive powers than
pleasing to the esthetic taste. The outward
appearance of this monster jewel Is most
delicate In workmanship. U Is valued at
5,000. though , as a matter of fact. It could
not bo purchased for twice that amount of
money. The liveliest Interest In this mar
velous military engine has been evinced by
Kmperor William , and ho has ordered a
spcclil guard to bo placed over the precious
cannon , which , two dnya In the week , Is on
view to curious Ucrllnor * and the strangcra
within the Qeruiuq capital's tatea.
COtHIT SYMjAIU.
Johnson ngnlnst Columbus lluggy com
pany. Krror from Doiiglns county. Af-
firmed. Opinion by Chief Justice Post.
Kvldcnco examined nnd held to sustain
the finding nnd Judgment adverse to the
plaintiff In error.
Qrosshnnn against Gold. Krror from Clay
county. Hovomcil nnd remanded. Opinion
by Chief Justice Post.
A mortgage given to nccuro a preexisting
ing debt will not bo declared void from the
fact nlono that the mortgagee at the time
of Its execution had notice of an Inten
tion on the part of the mortgagor to de
fraud creditors of the latter. In order to
avoid the security In such rase the mort
gagee must have participated In the fraud
ulent purpose of the mortgagor. Jonea
against Lorce , 37 Neb. , SIC. .
Jones against State. Krror from Satin-
der.M county. Alllrmed. Opinion by Chief
Justice Post.
An Information which milllclcntly charges
the practice by the accused of medicine
un.il surgery In a designated county with
out Mm having obtained from tlu > State
Hoard of Health the certificate proscribed
by chapter Iv , Compiled Statutes , statt-s an
offense under the provision of Haul chapter.
U'tllln against Gray. Krror from Lan
caster county. Heverscd. Opinion by Chief
Justice Post.
To authorize the Issuing of a writ of
mandamus In this state the duty In ques
tion must bo one ? specially enlolned by law
or which results from the olllco or station
of the respondent.
2. The peremptory writ of mandamus
must conform strictly to the command of
the alternative writ , or In the absence
of the alternative writ to the prayer of
the petition \\hlch Is the basis of the pro
ceeding , and clearly Indicates the particu
lar duty to bo performed.
Johnson ag-aluat May. Krror from Lan-
rnstor county. Order alllrmed. Opinion by
i-osi.
The question of residence within the
meaning of the statute regulating attach
ments In this state Is generally ono of In
tention to bo determined from the facts
and circumstances In each particular case.
2. Ono who has acquired a re-sldenco In
a given place within the meaning of the
attachment law Is presumed to have aban
doned his former domicile , and vice versa.
! t. Absence for the purpose of business or
pleasure IM of Itself not such an abandon
ment of one's place of abode within the
Ktatc as to authorize the Issuance of an
attachment against him on the ground of
non-residence.
4. Kvidonce examined nnd held to sus
tain the finding that defendants were not
at the time of thu commencement of the
action against them non-residents of this
state.
Sterling Manufacturing company against
Hough. Krror from Cumlng county. Order
and judgment alllrmed. Opinion by Judge
Harrison.
A reasonable notice of the hearing of
a motion to discharge an attachment Is
such notice as Is moot and fair In view
of the chcumstanccs and conditions cx-
iHtont at the time In the matter to be pre
sented.
2. In a hearing1 of a motion to discharge
an attachment ono of the Kroumls of
which Is the untruth of the allegations of
the allldavlt for attachment , where thu
evidence used at the bearing Is conflicting ,
the conclusions of the judge who heard
the matters announced for such evidence
will not bo disturbed unless manifestly
wrong.
D.iyton Spice Mills against Sloan. Krror
from Douglas county. Ainnncil. Opinion
by Juilfro Harrison.
The action of the trial court In deny
ing an application for the continuance of
the hcarlnq ; on a motion to dissolve an
attachment , examined and alllrmed.
2. A question which , apparently , was not
presented to the trlill court , but Is ralsrtl
for the llrst time In this court , need not
bo considered. Durham against Courtney ,
21 Neb. , C27.
. " . . "Tbe disproportion , If olio exists , be
tween the value of chattel * mortgaged
and the amount thereby secured niton's
no basis for a presumption of law. It Is
a matter of evidence , to bo accorded such
weight as. In the light of surrounding cir
cumstances. It l.s entitled to receive. In the
determination of a question of fact. "
Grand Island Hanking company against
Costello. Nob. , 11D.
1. A Rift of chattels from the husband
to the wife , during coverture , Inter vlvos ,
could not be madn and was of no effect
at common law. The husband and wife
were considered as but ono person and
she was Incompetent to receive llio gift.
fi. "The common law In respect to the
rights of husband and wlfo Is In force In
Ibis state , except so tnr an It has been
modlllcd by statute. " Aultnian , Taylor &
Co. against Obormeyer , fi Neb. , MO.
fi. The married woman's act being for
the purpose of extending , and not contractIng -
Ing or limiting the rights of married
women In thla state , will not bo held to
have abrogated the equitable rule which
uphold gifts from husbands to wives made
when the husband wni solvent and which
did not Impair the existing rights of cied
itors.
7. "A luiHband may lawfully give bis
wife u deed or mortgage to secure a preexisting -
existing buna lido ihbt o\\ng ( to her , and
Hiicb conveyance Is not fraudulent to hl.s
other creditors. If taken In good faith and
without any fraudulent purpose. " Ward
agiilnst Parlln , ) Neb. . .17(5. (
5. The Hti\tuto of limitations will not run
In favor of strangers to a transaction
against a claim due from a husband to
his wlfo arising out of such transaction.
9. A plaintiff who has attached property
as the property of defendant and obtained
urits of garnishment to Issue on allega
tions that tbu garnlvhco named has In bis
Dossosislon property , etc. , owned by or be
longing to thu defendants , will iiot bo heard
to assert that defendants have not milll-
eltnt Interest to bo allowed to defend
against the attachments.
10. The dissolution of an attachment Is
sued on a claim before duo terminates the
action , and that a Judge at chambers ,
lifter dissolving such an attachment , made
nn order of dismissal of the main action.
If without jurisdiction and error which wo
do not decide was not prejudicial.
11. The evidence examined and held bufll-
elcnt to support the finding and order of
the lower court.
Gedney Pickle company against Sloan.
Krror from Douglas county. Alllrmed.
Opinion by Judge Harrison.
This Is a companion case and submitted
with that of Dayton Splco Mills company
igalnst Sloan , Johnson & Co. under an
agreement that The decision In the last
mentioned onset should govern the deter
mination of this. The decision of the lower
court Is therefore affirmed.
Ulclmrd.s against Waller. Appeal from
Webster county. Opinion by Judge Harrl-
son.
son.One who makes payment to n second per
son , not the owner of a note and not In
no.s.sesslon of It. of money to bo applied
In payment of thu debt thereby evidenced ,
assumes the burden of proving that the
party to whom payment was mnilu was
empowered to collect the money.
2. The fact that a. person , or company.
Is authorized to receive the Installments
of Interest , which became clue on n mort
gage , note or bond , Is not sutllclont ground
from which to Infer that the authority
ilso exist * to collect or receive the prin
cipal Hum , If the evldpnces of the Indebtctl-
nos.s nru not and have not been In the pos
session of such pet son or company.
.1. "Where payment of a nesotlablo note
securc-d by mortgage was made to an Im
provement company and such payment WUH
never forwarded to the party to whom
such note bad been transferred , held : that
the mere fact that antecedent payments
of Interest made In like manner bad been
made to bo forwarded to the transferee , of
such note , and bad been HO forwarded ,
lid not bind the bolder of the note as to
the llnnl payment not forwarded , It beln-r
shown by the evidence'that such holder
had never In any way held out or recog
nized the Investment company aa his
igcnt. " Hull against Mitchell , CO N. W.
Itep , , C32.
Thompson against Shelton. Appeal from
Franklin county. Alllrmed. Opinion by
Judge. Harrison.
Ostensible authority to act as agent mav
bo conferred If the party to bo charged
is principal alllrmatlvely or Intentionally ,
or by lack of ordinary care causes or al
lows tlilrd i > crsoiii to trust and act upon
such apparent agency.
2. That the party to whom money duo
mother Is paid Is not In powtwlou of the
Instruments by which the Indebtedness Is
evidenced la not conclusive of the question
of the authority or lack of It in tim tufty
receiving the money to rolled It , but Is
a circumstance or fact to bo considered
, n the determination of such question
3. If differing : fair Inference "may bo
Irawn by candid. Impartial minds from
undisputed facts In evidence , the question
to bu determined Is not one of law for the
court , but ono of fact to bo solved by the
trier of the factH.
4. The evidence held mifllclent to sustain
the findings of the trial court.
Chicago , Hurllngton & Qulney Hallway
company against McQInnesM , Krror from
nuHtrr county. Hoverned nnd remanded.
Opinion by Judge Harrison.
An employe nHHinnes the ordinary risks
of tils employment.
2. An employe asmune.s ( ho rhdia arising
from tbu unsafe condition of prcmlxoH
where bin labor or a portion of It Is to
jo performed , when the risks and condi
tions are known to him , or are apparent
nnd obvious to persons of his experience
nd understanding1. If ho voluntarily en
ters Into the employment , or , after com
mencing , make * no complaint or objec
tion In respect to the hazards.
3. "When the special finding1 of facts In
m-oiiHlstont with the cencru.1 verdict th
former control the latter , und the court
may give Judgment nrcocdlngly. " Johnaot
against Mlluaukoo irtid Wyoming Invent
mcnt company , OS N. , W. Hrp. . iM ; Lync !
against Chicago , St. T/bul * & Pacific. Hal ]
way company , an N. M. Hep. , 41.
Dorse against Strruis. Krror from Bn-
llnc county. Alllrinoif. Opinion by Judge
Is'orvnl. ,
A bill of exceptions will not bo ronnlderci
unless authenticated by the ccrtlllcato of
the clerk of the trial , court.
King against Murpl.v. ) Krror from Hugo
county. Opinion by Judge Xorval.
The admission of Incompetent tcstlmonj
U not sufllclont grounds for reversal In
a en so tried to the court without n Jury.
2. The bond of n hulldliiK contractor to
pay all labor performed nnd materials fur
nished under a contract with u county
renders the sureties liable to n , subcon
tractor for materials furnished.
.1. A surety on a contractor's bond Is nol
relieved from liability for the payment of
rliilms for material men because the con
tractor was paid at an earlier date than
llxed bv the contract.
1. A judgment rendered upon conflicting
evidence will not bo disturbed by the supreme
premo court.
Thorno & Hunklns Llmo and Cement
company against Murphy. Krror from
Gngo county. Opinion by Judge Norval.
The case of King Co. against Murphy ,
decided herewith , followed.
Kansas City Terra Cotta Lumber compnnj
against Murphy. Krror from Gage county.
Opinion by Judge Norvul.
When the name of ono of two or more
sureties In n bond baa been forged" the
other co-sureties are not released , though
ho signed In the belief that the forged
signature was genuine , If the forgery was
unknown to the obllgoo when the Instiu-
ment was delivered and accepted.
Hodges nralnst Seward county. Appeal
from Seward county. Opinion by Judge Nor
val.
val.In
In this state private property cannot betaken
taken or damaged for public use without
compensation therefor , nnd thla rule ap
plies to municipalities and counties exer
cising the right of eminent domain.
2. An action will Ho at the suit of a land
owner to enjoin the opening of a public
road across his premises , where the dam
ages resulting from the appropriation have
not been ancertalned , and no provision has
been made for the payment thereof.
3. A county bonru Is not a proper party
defendant in an action to enjoin the open
ing of a highway.
Forrester against Kearney National bank.
Appeal from Huffalo county. Opinion by
JudKv Norval.
Where the legislature adopts the statute
of another state. It likewise adopts the
Judicial construction which It had already
received by the highest court In such state.
2. Where a mortgagee of peiHonnl prop
erty without any Intention to defraud has
delayed ( lllng his mortgage and taking pos
session of the property , but the Instrument
Is In fact tiled , or the mortgagee obtains
and holds actual possession of the prop
erty , under the mortgage before the rights
or lion of any third party attaches , the Hen
of the mortgage Is good against a creditor
of the mortgagor who subsequently causes
the property to be seized upon attachment
or execution.
.1. Farmers' and Merchants' Hank of York
against Anthony , 39 Nob. , iU.1 , and Spatild-
ng against Johnson , 07 N. W. Hep. , 874 , dis
tinguished.
Greer against Winter. Krror from Fron
tier county. Alllrmc-d. Opinion by Commls.
slonor Itynn.
Where the evidence Is fairly ponflletlns ?
the judgment will not be reversed , merely
liecauso In this court the preponderance
seema probably to have been In favor of
the uiiKiie ossfnl party. In tlu district unurt.
Stevenson against Hrod < nl. Krror from
Saunders eoiinty. Heversed nnd remanded.
Opinion by Commissioner Uyan.
In an action for the possession of real
property alleged to be withheld la violation
of a lease between the parties , the broach
allepcd was the failure lo Klvo a chattel
mortgage on demand about the 1st of No
vember , 1S91. The flr.st unpaid payment of
rent to becomu duo was February 1 , 1MJ ) ;
field , that a provision that the less co must
glvo a chattel mortgage on the crop each
year to secure said note , though supple
mented In the Ica.sn with another stipula
tion that the nonfulfillment of any of its
terms would at the election of the lessor
end the lease , did not entitle the lessor to
iro.secnto an action of forcible entry nnd
detainer.
Taylor against Alnsworth. Error from
Uouclns county. Hoversed nnd remanded.
Opinion by Commlulsuner Ryan.
An a general rule , a court of equity will
lot Interpose an objeqtloh.iu Its own lurl.s-
llctlon on the ground , tlmt the plaintiff has
an adequate remedy jit law , but will re-
: nln the cause and award the relief to which
the parties would have lu\en \ entitled In a
court of law. Following Sherwln against
Gagbagen. 3 ! ) Neb. , 23 $
2. It was allopcd by plaintiff , an executor
of a person deceased,1 th.lt the defendant
md received from the deceased during her
Ifetlmo the sum of $1.0oO. which ho undcr-
: ook to loan for her at advantageous rates ,
nnd which he falsely and fraudulently prc-
ended to her he had no loaned , and that
10 had refused to pay the same or any part
: hereof. On trial of the Issuer , as properly
nvolvlng the. performance of a trust , cer-
aln letters of the defendant were Intro-
luced In evidence by plaintiff which defond-
mt was required to Identify as a witness ,
and as a witness ho was re-iulred by plain-
lit to Htato Mmply that bo bad received
fiom the defendant $ ICOO. Held , that the
transaction between the deceased and the
wltneFs WHS nn entirety , and that the proofs
alwvi made authorized the defendant to
cstlfy as to how little. If anything , remained
inp.ud to the estate of the testatrix.
Jackson against South Omaha Live Stock
exchange. . Appeal from Douglas county.
Alllrmed. Opinion by Commissioner Uyan.
In an action to enjoin the collection of a
Ine assessed against members of a volnn-
ary association for the violation of Its
ules disputed quortlons of fact cannot as
> y a reviewing eourt bo examined , there
jelntT no proper proof of the nature of such
evidence.
2. The articles of Incorporation of a volun-
ary association provided that Its affairs
should be managed by Its board of directors
and bv Its by-laws , and such board was
lothed with power to Inquire Into and pun-
? h Infractions of Its by-laws. Held , that the
regulations were a binding on the members
of the .T'soclatlnn In the form of by-law.s
is thoiiKli embodied In and constituting part
of Its articles of Incorporation.
: i. The mere fact that a director had a spe-
lal Interest In the Infliction of punishment
ipon a member of a voluntary association
or the violation of Its reguhi-
lonfl did not. In the absence of oblectlon
nu the ground of disqualification of such
llrector to net as a trier of the accused , HO
far Invalidate the findings nnd crder of the
> oard of directors acting within the FCOPO
) f It.s powers that sueh findings and order
n a collateral proceeding In the district
court ought to be treated a.s of no force or
validity.
Hurko against Drown. Hrror from Hlalne
county. Affirmed. Opinion by Commissioner
tiiKiin.
Where no complaint Is made In the motion
'or a new trial ns to the rulingof the court
n admitting or excluding evidence , either
cpeclllcallv , or , In the language of the stat
ute , naiiMy. "errors of law occurring at the
rial , " this court will not revlo.v an assign
ment In a petition In error that ho district
court erred In admitting or excluding certain
evidence In the trial.
Van Ktten atralnst Test. Krror from
Douglas county. Affirmed. Opinion by
Commissioner Hasan.
Whim a bill of exceptions hat ) been
quashed this eourt will conclusively prcHumn
hat evidence \va.s Introduced on the trial
which sustained the Judgment rendered.
2. The authority of courts , both of law and
equity , to outer a Judgment or ddcrco nunc
ire tune does not depend upon statute ; It
H an Inherent power lodged In the courts.
3 , If a Judgment In fact was * multireel , If
an order In fact wa made , and such Judg
ment or order not recorded , then the court ,
at any time aftcrwaid , In a proper proceed
ing and upon a proper showing , Is Invested
with the power to mmler nunc pro tune
such tudgment or innhn mieli order.
1. Kleven months after overruling a mo
tion for a new trial the court on motion
entered Judgment nuio | pro tuna on the
verdict. The motion wan resisted and a
bill of exceptions settled. The jutlgo cer
tified that the bill of exceptions consisted
of fourteen pages numbered from one to
fourteen , both Inclusive. Ho did not cer
tify that It contained any of the evidence
used on bearing of the motion , From the
bill of exceptions brought hero the fiist
e-lght pages wcro mlt-filnt , ' . Hold ; (1) ( ) That
mich bill of oxce-ptlona would not lie .con
sidered for any purppse. (2) ( ) That the
supreme court would promimo that the dis
trict court on thu hearing of said motion
had before It evidence Hhowlng that a judg
ment had In fact been rendered or ordeied
nt the time the motion for a new trial was
overruled.
American Kxchango National Rank
itgalnxt Focklor. Appeal from Lancaster
countv. ItuveiBcd and rumandcd. Opinion
by Commissioner Itagan.
Appellants brought suit to foreclose a real
cstato mortgage. The nppcllcu answered
bv cross petition that It was thu owner of
the real t-Htatu by virtue of a conveyance
from the mortgagor duly recorded before
the recording of the mortgage of the ap
pellant. Appellee fuithcr alleged that It
took Its conveyance without any notice of
appellant's mortgage and prayed that It
might bo decreed the owner of the real
estate free from the Hen of thu mortgage
of appellant. Held : (1) ( ) That to enable the
court to pronounce the decree prayed for It
was Incumbent upon thu appellee to plead
and provo that It waa A purchaser of the-
real estate not a gratuitous donee thereof.
That It purchased the real estate without
notice , either actual or constructive , of the
mortgage of the appellant ; that for the
piopurty It parted with or puld a valuable
consideration : what that consideration wax ,
and that It paid or parted with Biich con
sideration before receiving nollce of thu
mortgage of the appellant. (2) ( ) That as the
crouH petition of thu appellee did not aver ;
that li wufl a puruliUBor of thu real estate
nor the consideration parted with nr puld
therefor ; nor that It puld or parted with
any consideration for the property , It dlt
not titnte. a ratine of action.
HockPiibi K'T against State , Krror fron
Hall county. Itpvrmed and remanded
Opinion by CommlKsloner llagnn ,
The plaintiff In error wan arrested on a
complaint I'hnrglnir him with Ifuvlnff embezzled
bozzlod certain money belonging to "tin
school dlftrlut of thfclty of Grnnd Island
Hall county. Nob. " The Information on
which bo was tried charged him with hav
ing embezzled certain money belonging to
"tho school district of the oily of Grant
Island , of thu county of Hall , In the state
of Nebraska. " Held : No material variance
between the complaint and the Information
2. The complaint on which plaintiff In
rrror was arrested described him ns "secre
tary of the school board. " The Information
on which he was tried described him as
secretary of the board of education. "
Hold ; No substantial variance between the
complaint ami the Information.
3. When It appears that the charge In
the complaint Is substantially the same , ns
that set forth In the Information , n plea of
a want of preliminary examination or a
variance between the complaint and the
Information l.s unavailing.
4. On September IS. 1M)1. ) the plaintiff In
error was county treasurer of Hall county
and nt the same time secretary of the
board of education of the city of Grantl
Island , lit1 * was Indicted for having on said
dale , as secretary of said "board of educa
tion , " embezzled ono thousand dollars be-
longlnft to the school district of Graiid
Island.
The state offered evidence which tended
to show that the plaintiff In error on until
date , ns secretary of the board of educa
tion , received from himself ns county troas.
urer three thousand dollars of money be
longing to said school district.
The coutt Instructed the jury that , the
records of the county treasurer's otllce.
showing that the plaintiff In error , as secretary -
rotary of the school board , had on said date
reeelnted to himself ns county treasurer for
M.OOO of money belonging to said school dls-
trlct. were competent evidence for them to
oonwlder In determining whether plaintiff
In eiror us county trt-isurcr , had on said
date paid to himself as secretary of the
school board said sum of money ; but re
fused to Instruct the Jury that sueh receipts
vvoro only prlma faclo evidence that plain
tiff. In error , as secretary of the board , bad
actually received said sum of money
riom himself , as county treasurer , and
that Filch receipts mlcht bu explained ami
the truth .sho.vn. Held , that the refusal
to Instruct as requested was error.
5. The defense of the defendant In error
was and the evidence offered In bis behalf
tended to establish It that on said date ,
while .secretary of the board of education ,
10 tvcelnted to himself , as county treasurer ,
for J.1.COO ; that ns a matter of fact on said
late bo. as secretary of the school board.
only received from himself ns eoiinty treas
urer $2.000. which sum on said date was
paid over to the city treasurer. The court
i of used to submit , by an Instruction , this
lefenso to the Jury. Held , error.
O'Hrlon 'against Parsons. Krror from
Jawson county. Alllrmed. Opinion by Com
missioner Irvine.
No question of law Is presented by this
record. Instructions examined and held to
properly state the Issues and evidence cx-
unlned and held to sustain the verdict.
Hcrnstoln ngaltmt Coburn. Krror from
Douglas eoiinty. Hove reed and' remanded.
Opinion by Commissioner Irvine.
The defendant In an action by the as-
dKiieo to recover money duo to nn Insolvent
KuiltliiK corporation , may set off against
he amount owing by him to the batik an
ndobtodness of the latter to him. ( Siilla-
lln against Mitchell , 42 Neb. , S31 , fol'owod. )
Central Loan and Trust Company against
Ionian. Appeal From Douglas county.
Heverscd and remanded. Opinion by Com
missioner Ityan.
Where a party agreed In consideration of
real property being placed In the bands of
ils ar.ent by whom the rents ami profits
therefrom arising ; wore to bo collected and
> nltl out as stipulated to certain holders of
lens on such property , among whom rvns
the aforesaid party to said agreement , such
igreement will bo enforced according to Its
erms though thereby the otherwise oxlst-
ng- lights of said party are modified or
mpalrod.
2. The mere fact that a loan company , as
i condition upon which It would make a
oan for the erection of buildings on real
iiopcrty offered a security , required that
bo contemplated Improvements phould be
conformably to plans submitted with the
application for sueh loan , did not , for the
unount paid by It out of the loan on a
nortg-ago paramount to the liens of all
tart leu concerned subject the company tb a
llrect liability to the holders of a mechanic's
lens created by reason of such Improve
ments.
3. On appeal to this court relief can only
bo obtained by mich parties as are
ippellantH.
Seeley against Wlckstrom. Krror from
'helos county. Heversed and remanded.
Opinion by Commissioner Irvine.
Kvldcnco examined and held to sustain a
flndltiK that a mortgage In controversy bad
not been paid and thereafter delivered to a
stranirer as security to a new debt.
2. Where amote. valid between the par
ies , has been pledged , the pledgee may ro-
eover from the maker the whole amount of
be note.
3. The pledgee of a note may , upon Its
maturity , maintain an action thereon or
enforce security thereto , although the debt
for which It l.s pledged Is not yet duo.
4. A junior mortgagee In a foreclosure
ease who does not pray for a foreclosure. Is
entitled only to a decree fixing his priority
mil directing distribution In case of sale
neeordliiKly.
Hoberts against Hoblnson. Appeal From
Vcbster county. Opinion by Commissioner
tagan.
A judgment debtor owned and occupied
vlth bis family sixty acres of land In
Webster county of le.ss value than two
housand dollars. Ho and bis wlfo convoyed
his land to one , n. for the purpose of liav-
ng the latter convey the bind to the wlfo of
bo Judgment debtor. This was done. The
iidgmont against the homestead owner was
ilso agaln.st II. In a suit to subject said
and to the payment of said judgment.
Icld : (1) ( ) That the motive which Inllueneed
ho homestead owner In having- the tltlo of
his land conveyed to his wife was an Im-
naterlal Inquiry as the property was not
usceptlblo of a fraudulent alienation. (2) ( )
That H. did not own the real estate , but
leltl the legal title In trust for the wife , and
hat the latter , by the conveyance from H
lid not take the land burdened with thp
udpment.
2. The deed to It. was actually acknowl-
tlged In Nuckolls county before a notary
iiilille , thereof , but liy mistake bo certified
hat hu was a notary public of Webster
ounty , where the dertl wa.s recorded. Huld
1) ) That the rights of the Judgment creditor
\cre not affected bv this mistake of the
notary public. (2) ( ) That the deed , having
Ken actually plcned , acknowledged and
lellvored , convoyed the legal titles to H
.1. Where the legal title to leal estate is In
bo name of the Judgment debtor , nevertho-
e.ss thu Hen of a Judgment against him
ttachcs only to the actual Interest which ho
has In the real estate.
I. If there has been fraud or unfairness ,
rrecularlty or disregard of the statute In
making1 a judicial sale the district court Is
nvo.stcd with the discretion to sot such pale
Hide.
5. Hut when Rich calc has been fairly con
noted and made ; when all the piovlslons of
ho statute have been compiled with ; wliun
ho property has been sold for two-thirds of
ts appralhcd value ; and thu sale has bcon
uly reported to thu eourt and itp objections
re. Interposed to Its confirmation ; | ) lu
Istrlct court has not the discretion to
rbltrarlly cot such Hale aside , but should
on fir in It.
V or\y cj > ; 7\.ft' . . .
5 8
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