Contract— Writing—Construction.-The construction of a written instrument is exclusively for the court, except when it cannot be understood without reference to facts not within the writing, and then the jury are to judge of the whole together. If there be a patent ambiguity in the terms of a written contract the court must solve it; but if ambiguity arise from extrinsic evidence it must be solved by the jury. Foster v. Berg & Co., Sup. Ct. Pa. Phila. Leg. Int., Oct. 24, 1884.

Contract-Facts of Case Reviewed.-Where a letter was written to the defendant proposing that as a part of a contract he should agree to furnish $15,000 in stock, and requesting him to signify his acceptance of the terms by telegraphing back" proposition as to fifteen thousand stock accepted;" and the defendant telegraphed, "I will provide for the fifteen thousand stock," intending the dispatch to be regarded as an acceptance, held, on the facts found by the court, that a refusal to furnish the stock rendered him liable. Alford v. Wilson, U. S. C. C. D. Conn. 21 Fed. Rep., 96.

Executor's Laches to Sell Real Estate Responsibility for Depreciation.— An executrix with power to sell real estate for payment of decedent's debts, neglected and refused to do so, whereby the property when sold did not realize as large a sum for creditors as it would have done if sold within a reasonable time after decedent's death. An action on the case will not liè against the executrix for negligence and malfeasance as such executrix. If she wrongfully refused and neglected to sell, or otherwise erred in her duties, the proper forum for the creditors to have enforced the sale for debts or to have obtained protection or redress for malfeasance as executrix, was the Orphan's Court. Savings and Loan Company v. Vincent, Executor. Sup. Ct. Pa. Phila. Intel., Oct. 14, 1884.

Fraud in Obtaining Patent-Right to Cancel.-Held, that the name of the United States will not be used to cancel a patent when it is apparent that the name of the government is only colorably used, and that the suit is really prosecuted by private persons. That the better practice is to leave the attack upon such patents as have been obtained by false suggestions where they have heretofore been left as defenses to the validity of the patents. The U. S. v. Samuel Frazier, U. S. D. C., N. D. Ill., Oct., 1884. Chic. Leg. News, Nov. 8, 1884.

Landlord and Tenant- When Tenant may Dispute Title.-A tenaut may show in defense of proceedings against him to obtain possession that his landlord's title has been divested by act of law since his tenancy commenced. In such a case the tenant is not estopped from denying his landlord's title. Smith v. Crosland. Sup. Ct. Pa. Phila. Leg. Int., Oct. 14, 1884.

Note Given in Another State Payable in New York.-A note drawn, dated, signed, delivered, made payable and first used in the state of New York, but given for a precedent debt arising in and owing to a resident of another state, is to be governed by the usury laws of New York, and not those of the other state. Merchants' National Bank of St. Paul v. Southwick, N. Y. Sup. Ct. N. Y. Daily Reg., Aug. 22.

Printing Press Nuisance-Noise-Evidence.-Equity will not interfere to restrain an alleged nuisance where the evidence of the noise is conflicting and great damage would be sustained by defendant. An injunction to restrain the printing establishment at Ninth and Spruce streets refused. McCaffrey's Appeal. Sup. Ct. Pa. Phila. Leg. Int., Oct. 31,

1884.

*

Practice-On Undivisible Contract one Suit only Admissible.—A. sold to B. "all the timber growing * upon a tract, in consideration whereof said parties of the second part shall pay presently $25, and give their four negotiable notes at three, six, nine and twelve months, in equal sums, to wit, $168.71." In the first suit A. recovered the amount of timber that had been cut up to the time of bringing suit. Held, that, as the contract was not divisible, he could not bring another suit for the balance due. Alcott v. Hugus. Sup. Ct. Pa. Phila. Leg.

Int., Oct. 31, 1884.

Railroad Company-Fences Destroyed by Storm—Injury to Cattle-Contributory Negligence--Duty as to Repair of Fences.—One who, knowing that a severe storm on Saturday had prostrated fences, on Monday evening turned his cattle upon uninclosed land without inquiry as to whether the railroad fences abutting thereon were uninjured, was guilty of such contributory negligence as would defeat his recovery for injuries received by such cattle on the railroad track; and, such facts appearing from his own evidence, a nonsuit should have been granted. A railroad company has no right, for the purpose of repairing its fences, to take timber or poles from the adjoining lands not owned by it. A railroad company is bound only to use ordinary diligence in repairing its fences. Carey v. Chicago, M. & St. P. Ry. Co. Sup. Ct. Wis. 20 N. W. Rep., 648.

Statute of Limitations-Disabilities—Cumulative—Husband and Wije.— If party claims benefit of saving for infants and femes coverte in statute of limitations, no other disability is available than the one which existed when right of action accrued. One cannot be mounted on another; so as to present, continuous obstruction; therefore the disability of marriage cannot be tacked on to that of infancy. Parsons v. McCracken & ux.,'9 Leigh, 495. Quoad two or more disabilities co-existing in the same person when his right of action accrues, the rule is different, and he is not obliged to act until the last is removed. Wilson v. Branch &als., 77 Va., 67 When the statute begins to run, no new disability can stop its running. A bill by husband and wife, in wife's right is husband's bill, she being joined only for conformity. Coverture of wife is no excuse for delay in suing. Blackwell's Adm'r v. Bragg, Trustee, &als., S. C. App. Va.. 8 Va. L. Jour., 657.

Statute of Limitations-Non-Resident-Federal Officer.—Where a resident leaves the state under employment of the Federal Government, intending to return after the termination of the employment, but retains no property or business interest in the state, he is a non-resident within the meaning of the statute of limitations. Hodges v. Jones, S. C. Ia.,

June, 1884. 18 Rep., 521.

The drawing of lots to determine the terms of the newly elected Circuit Judges will take place as soon as the certificates of election of all the 21 judges elected are filed with the Secretary of State, and the judges elect should see that these certificates are now sent in by the County Clerks without further delay. We understand that it is the inten ion of Gov. Hoadly to invite the judges to be present on the occasion of the drawing. The purpose of this is not only to satisfy every one that the utmost fairness will be observed, for of that there exists no doubt. But it is intended to assemble the judges to become acquainted with each other and to consult about matters of interest to them all in their new capacity. One of the matters of common interest will be an arrangement to adopt uniform rules which shall apply to the Circuit Courts throughout the state. This would be a matter of great convenience, not only to the Bar of the state, but also to the judges themselves. For as under the law a judge may be called upon to serve in an other Circuit, uniform rules for all the courts would be of decided advantage to the judges. Besides, there are other matters which the judges would consult about at such a meeting, and it seems entirely desirable that it should take place.

RESIGNATION OF THE CLERK OF THE U. 8. COURT 8. D. O., AND APPOINTMENT OF HIS SUCCESSOR.

On Wednesday last, U. S. District Judge Sage stated from the Bench at Cincinnati, just before adjournment of the court, that Mr. W. C. Howard, Clerk of the U. S. District and Circuit Courts, had resigned that position, the resignation to take effect on the 28th inst., and that Judge Baxter and he had determined to appoint as Mr. Howard's successor General B. R. Cowan, of Columbus. The judge explained that the early announcement was made, as there were several applicants

for the position about to be vacated. General B. R. Cowan, editor of the State Journal, being tendered the office of Clerk of the U. S. Court for the Southern District of Ohio. headquar ters at Cincinnati, has accepted the place, and will assume the duties of his office as soon as he can get things in shape for leaving the Journal. The appointment of the clerk is vested in the judges of the court, at whose pleasure he serves. The position is worth, in fees,at least $7,000 per year.

It seems understood that there will be no other change in the personnel of the clerk's office. The present deputies, Messrs. George, Nevin and Dorman, fill their positions to the best satisfaction of the judges and every one who has dealings with the clerk's office.

Mr. Howard, the retiring clerk, is an attorney of much ability, formerly of Dayton, and he will probably remove to Minneapolis to practice his profession.

ARTICLES ORIGINAL AND SELECTED.

STATE PRACTICE IN FEDERAL COURTS.

The extent and limit of the provision of the United States Revised Statutes, making the practice according to state law a rule in civil common law cases, etc., in the United States Courts, is a matter of considerable interest and not yet well defined. The statute is as follows:

"The practice, pleadings and forms and modes of prroceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding." (U. S. R. S., sec. 914).

Nudd v. Burrows (1 Otto, 441) is the leading case as to excluding from the rule matters not strictly matters of practice. The effect of this decision is well stated in the more recent one of Indianapolis & St. Louis R. R. Co. v. Horst (93 U. S., 3. Otto, 291), where the court reviewing the refusal of the trial judge to require the jury to find on special questions, said:

"It is insisted they were within the act of congress of June 1, 1872 (17 Stat. 197, sec. 5), and that hence the court below errred in declining to require the jury to find in answer to them in addition to the general verdict. We had occasion to consider this statute in Nudd v. Burrows (91 U. S. 441), and see no reason to depart from the views there expressed. We said the section in question had its origin in the code enactments of many of the states, and was intended to relieve the legal profession from the burden of studying and of practicing under the two distinct and different systems of the law of procedure in the same locality, one obtaining in the Courts of the United States, the other in the courts of the state; but that it was not intended to fetter the judge in the personal discharge of his accustomed duties or to trench upon the common law powers with which, in that respect, he is clothed. Whether congress could do the latter was left open to doubt. It was not then, and it is not now, necessary to decide that question. The statute expressly recognizes the distinction between proceedings in equity, in admiralty and at common law. The separate character of the two former is recognized by the constitution, and it protects them. The latter congress can change and regulate as it may see fit, within the limits of its constitutional authority. Here the question is one of legislative intent. The intention of the lawmaker constitutes the law; a thing may be within the letter of a statute and not within its meaning, and within its meaning though not within its terms (9 Bouv.; Bac. Abr., title stat., sec. 5, pp. 246, 247; Burgett v. Burgett, 1 Ohio, 22; Stater v. Cave, 3 Ohio St., 85; United States v. Babbit, 1 Black, 61).

"Where a state law, in force when the act was passed, has abolished the different forms of action, and the forms of pleading appropriate to them, and has substituted a simple petition or complaint setting forth the facts, and, prescribed the subsequent proceedings of pleading or practice to raise the issues of law or fact in the case, such law is undoubtedly obligatory upon the courts of the United States in that locality. There may be other things not necessary now to be specified with respect to which it is also binding. But where it prescribes the manner in which the judge shall discharge his duty in charging the jury, or the papers which he shall