months. In 1887, Y. notified the marshal that Mrs. Y. had an incum-
brance on the property prior to the mortgage to N. & Co., (stating
the amount of it,) and that a sale for less than that amount would
be invalid. Notwithstanding this notice, a sale was made for a less
sum. This sale was attacked by Y. and Mrs. Y. by various proceed-
ings set forth in the opinion of the court, which resulted in a decree
setting aside the sale, and adjudging that the attempted renunciation
by Mrs. Y. of her special mortgage was invalid, and that that mort-
gage should be recognized as the first mortgage on the property, supe-
rior in rank to the mortgage of N. & Co. Held, (1) That Mrs. Y.
must stand upon her legal mortgage, resulting from the receipt of
her paraphernal property, and recognized by the judgment of 1881,
decreeing a separation of property; or upon a judicial mortgage aris-
ing from that judgment; or on the contract between herself and the
residuary legatee of E. H.; (2) That if her mortgage be held to be
legal or judicial, its existence was not a bar to the confirmation of
a sale for an amount insufficient to satisfy it, and that it could not
rank the special conventional mortgage of N. & Co.; (3) That by
the transaction between the residuary legatee of E. H. and Mrs. Y.,
the respective debts were discharged by agreement and compensated
each other, and when the principal obligation was thus discharged,
the mortgage fell with it, and would not be revived, although the
indebtedness were reacknowledged; (4) That the decree below should
be reversed. Nalle v. Young, 624.

MULTIFARIOUSNESS.

See EQUITY, 4.

NATIONAL BANK.

The single fact that the statutes of Kansas regulating the assessment and
taxation of shares in national banks permit some debts to be deducted
from some moneyed capital, but not from that which is invested in the
shares of national banks, is not sufficient to show that the amount of
moneyed capital in the State of Kansas from which debts may be de-
ducted, as compared with the moneyed capital invested in shares of
national banks, is so large and substantial as to amount to an illegal
discrimination against national bank shareholders, in violation of the
provisions of Rev. Stat. § 5219. First National Bank of Garnett v.
Ayers, 660.

See JURISDICTION, A, 14.

NAVY.

See OFFICERS IN THE NAVY.

NEGLIGENCE.

See RAILROAD, 2, 3.

NEW TRIAL.

This case comes within the general rule that the allowance or refusal of a
new trial rests in the sound discretion of the court to which the appli-
cation is addressed. Haws v. Victoria Copper Mining Co., 303.

NOTICE.

1. Where land is used for the purpose of a home, and is jointly occupied
by husband and wife, neither of whom has title by record, a person
proposing to purchase is bound to make some inquiry as to their title.
Kirby v. Tallmadge, 379.

2. The possession of real estate in the District of Columbia, under appar-
ent claim of ownership, is notice to purchasers of the interest the per-
son in possession has in the fee, whether legal or equitable in its nature,
and of all facts which the proposed purchaser might have learned by
due inquiry. Ib.

3. The principle applies with peculiar cogency to a case like the present,
where the slightest inquiry would have revealed the facts, and where
the purchaser deliberately turned his back upon every source of infor-
mation; and a purchase made under such circumstances does not
clothe the vendee with the rights of a bona fide purchaser without
notice. Ib.

OFFICERS IN THE NAVY.

Mates are petty officers, and as such are entitled to rations or commutation
therefor. United States v. Fuller, 593.

PATENT FOR INVENTION.

The inventions claimed in the third and fourth claims of letters patent
No. 339,913 dated April 13, 1886, issued to Harry C. McCarty for an
improvement in car trucks, if not void for want of novelty, as the ap-
plication of an old process or machine to a similar or analogous subject,
with no change in the manner of application, and no result substan-
tially distinct in its nature, were inventions of such a limited character
as to require a narrow construction; and, being so construed, the letters
patent are not infringed by the bolsters used by the appellee. McCarty
v. Lehigh Valley Railroad Co., 110.

See ESTOPPEL, 2, 3, 4.

PENSION.

See CRIMINAL LAW, 4.

PERJURY.

See INDICTMENT.

PRACTICE.

1. There is nothing in this case to take it out of the ruling in Isaacs v.
United States, 159 U. S. 487, that an application for a continuance is
not ordinarily subject to review by this court. Goldsby v. United
States, 70.

2. The court below can, before a new trial, authorize the allegation as to
the decision by the Secretary of War upon the necessity of taking the
land to be amended, if necessary. United States v. Gettysburg Electric
Railway Company, 668.

3. The court adheres to its opinion and decision in this case, 159 U. S. 349,
and corrects an error of statement in that opinion, which in no way
affects the conclusions there reached. Sioux City & St. Paul Railroad
Co. v. United States, 686.

See ASSIGNMENT OF ERROR;
CRIMINAL LAW, 11;
EVIDENCE, 4;

INDICTMENT, 5;

JURISDICTION, B, 3;

MANDATE, 1, 2;

NEW TRIAL.

PRESUMPTION.

See EVIDENCE, 9.

PUBLIC LAND.

1. The provision in the act of March 3, 1875, c. 152, 18 Stat. 482, grant-
ing the right of way through the public lands of the United States to
any railroad duly organized under the laws of any State or Territory,
which shall have filed with the Secretary of the Interior a copy of its
articles of incorporation and due proofs of its organization under the
same, plainly means that no corporation can acquire a right of way
upon a line not described in its charter or articles of incorporation.
Washington & Idaho Railroad Co. v. Cœur d'Alene Railway & Navi-
gation Co., 77.

2. A railroad company whose road is laid out so as, under the provisions
of the act of March 3, 1875, 18 Stat. 482, entitled "An act granting
to railroads the right of way through the public lands of the United
States," to cross a part of such public unsurveyed domain, cannot take
part thereof in the actual possession and occupation of a settler, who
is entitled to claim a preëmption right thereto when the proper time
shall come, and who has made improvements on the land so occupied
by him, without making proper compensation therefor. Washington
& Idaho Railroad Co. v. Osborn, 103.

3. The act of March 3, 1877, c. 107, 19 Stat. 377, providing for the sale of
desert lands in certain States and Territories, does not embrace alter-
nate sections, reserved to the United States, along the lines of rail-
roads for the construction of which Congress has made grants of lands.
United States v. Healey, 136.

VOL. CLX-46

4. Cases initiated under that act, but not completed, by final proof, until

after the passage of the act of March 3, 1891, c. 561, 26 Stat. 1095,
were left by the latter act, as to the price to be paid for the lands
entered, to be governed by the law in force at the time the entry was
made. Ib.

5. A voluntary relinquishment of his entry by a homestead entryman
made in 1864 was a relinquishment of his claim to the United States,
and operated to restore the land to the public domain. Keane v. Bryg-
ger, 276.

6. Prior to 1864 H. made a homestead entry of the land in controversy in
this action. In February, 1864, he relinquished his right, title, and
interest in the same. In March, 1864, the University Commissioners
of Washington Territory, under the act of July 17, 1854, c. 84, selected
this as part of the Territory's lands for university purposes, and on
the 10th day of that month conveyed the tract to R., who, on the 4th
of April, 1876, conveyed it to B. Held, that the title so acquired
should prevail over a title acquired by homestead entry in October,
1888. Ib.

7. The Indian reservation at Sault Ste. Marie, under the treaty of June 26,
1820, with the Chippewas, continued until extinguished by the treaty
of August 2, 1855; and upon the extinguishment of the Indian title
at that time the land included in the reservation was made, by § 10
of the act of September 4, 1841, not subject to preëmption. Spalding
v. Chandler, 394.

See MINERAL LAND;

REMOVAL OF CAUSES, 1.

RAILROAD.

1. A force of five men, in the night service of a railroad company, was
employed in uncoupling from the rear of trains cars which were to be
sent elsewhere, and in attaching other cars in their places. The force
was under the orders of O., who directed G. what cars to uncouple,
and K. what cars to couple. As the train backed down, G. uncoupled
a car as directed. K. in walking to the car which was to be attached
to the train in its place, caught his foot in a switch and fell across the
track. As the train was moving towards him he called out. The
engine was stopped, but the rear car, having been uncoupled by G.,
continued moving on, and passed over him, inflicting severe injuries.
K. sued the railroad company to recover damages for the injuries thus
received. Held, that K. and O. were fellow-servants, and that the rail-
road company was not responsible for any negligence of O. in not plac-
ing himself at the brake of the uncoupled car. Central Railroad Co.
v. Keegan, 259.

2. In an action against a railroad company brought by one of its employés
to recover damages for injuries inflicted while on duty, where the evi-
dence is conflicting it is the province of the jury to pass upon the

questions of negligence; but where the facts are undisputed or clearly
preponderant, they are questions of law, for the court. Southern
Pacific Company v. Pool, 438.

3. In this case, after a review of the undisputed facts, it is held that there
can be no doubt that the injury which formed the ground for this
action was the result of the inexcusable negligence of the company's
servant.

Ib.

1. An action commenced May 27, 1889, in the District Court of the Terri
tory of Idaho, before the admission of Idaho as a State, by a corpora-
tion organized under the laws of Washington Territory, against a
corporation organized under the laws of Montana Territory, and
against a railroad company organized under the laws of the United
States, upon which latter company service had been made and filed,
was, after the admission of Idaho as a State, removable to the Circuit
Court of the United States for that circuit both upon the ground of
diversity of citizenship of the territorial corporations, and upon the
ground that the railroad company was incorporated under a law of the
United States; and, so far as the latter ground of removal is con-
cerned, it is not affected by the fact that the railroad company after-
wards ceased to take an active part in the case, as the jurisdictional
question must be determined by the record at the time of the transfer.
Washington & Idaho Railroad Co. v. Cœur d'Alene Railway & Naviga-
tion Co., 77.

2. The decision of the Supreme Court of Nebraska that the Missouri
Pacific company could not maintain its claim for damages because its
possession had not been disturbed or its title questioned, involved no
Federal question; and where a decision of a state court thus rests on
independent ground, not involving a Federal question, and broad
enough to maintain the judgment, the writ of error will be dismissed
by this court, without considering any Federal question that may also