Evening journal., 1894-03-10

Austin Harrington the defendant.
In the case Of Marr, assignee Of Ruth,
Us. the Lumberman's Insurance Com.
pany, the court discharged the rule TO
open the Judgment. saying that, after
careful consideration, IL saw no reason
for doing so. MaIr was represented by
Hoifscker & Hohecker. George II Bates
was counsel for the company.
The case Of A. j. Bates Co vs. George
A. noopes was ordered 20 be reargued at
the next term Of court.
The writs of capias secured by LYMAN
Harris and Clalilin q Co., against David
Abramson were quushed The applica-
tion was made by Branch Il Giles and
was opposed by Henry Conrad. Tue
chief Justice dissented
Levi G. Bird informed the court that
IN the referee trial Of Joseph Petit vs.
stevens & Son. OF Auburn, n Y the
referees had given the plaintiff an award
OF 1858 20. The claim Of the plaintiff
was over 81 100 The defendant
claimed $500 balance due on a threshing
rig, but q the decision was adverse
TO the claim. Levi G. Bird and Andrew
r. Sanborn represented the plaintiff
Harry Emmons was counsel for the
defendant.
In the case Of Perkins vs. Ida Carr
Wilson an action on mechanics lien, the
exceptions fled and argued were over
ruled.
On motion Of E. r. Cochran. Jr, the
Judgment below was confirmed In the
case Of William f Riley, d. h. vs.. the
State, p. b. Attorney General Nicholson
represented the plaintiff.
Decision Against Mrs. Hartman.
The oertiorarl case Of Maria G. Hart
man vs.. the Mayer and Council was de-
cided against Mrs. Hartman. and the
certiorari dismissed on the ground that
tue oertiorari would not lie 10 the record
Of the City Board of Health. Mrs Hart.
man was fusd for keeping wet cellar
and she certioraried the case to the Su-
perlOr Court
The Lee Decision Rendered.
Judge Marvel then delivered tho de-
cision Of the day In was ia the case Of
William h. Lee vs.. the Mayor aud
Council OF Wilmington. Peter l.
Cooper, Jr., counsel for Lee, was not
present when the reading of the decision
began, but entered the court room shortly
afterwards. Extracts from the charge,
which was quite lengthy, are rs follows
ITO successfully maintain the action
upon the declaration at the time Of
bringing the suit, upon the facts ad-
mitted, would necessarily require q de.
termination of the question Of the right
Of William II Lee 10 the possession of the
Offices Of registrar of deaths, births and
marriages and secretary Of the Board Of
Health from June 3. 1891, until the first
Thursday in May, 1892
There is very large class Of
cases upon the question as 10 whether
payment of a salary or fees or emoluments
Of an Office to de facto incumbent
would exonerate the government or Do
! litical body from the payment thereof 10
the de jure officer. Whichever side Of the
| question any Of these cases may take none
sanctions the right Of the de iure officer
to recover the salary while out Of pos
session Of the office until he obtains a
determination Of a competent tribunal in
favor Of his title In direct proceeding
instituted for that purpose.
III the plaintiff in this action has the
right to 90 TO trial on the declaration filed,
the great question contested at that
trial would be, judging fiom the
argument Of the learned counsel, his
right TO the office. II this prin.
] tInle lh NhllA 10 Will apply
as well TO officers elected by
the people as to those appointed or re-
moved by state or municipal authority
and wherever there is a contest touching
the result of a popular election or tbs
validity OF an appointment to or a re
moval from office, the question is to bs
settled by an action for the salary.
"The incumbent of the Office would b,
] faIn NNInn
cover his salary. The claimant NAV, az
in this case, aequiesce in his remova
from Office, aud at the expiration Of tw,
or FIVE Yeas, establish his title and re
cover bis pay, though his Office may hav,
been filled and the salary received By
another. He may thus recover compen
sation not only for services never rem
dered, but msy compel the corporation {,
pay twice for the same service.
1T would supply an ingenious devic,
by which both candidates, IL they couls
not enjoy the honor, might at least real
the emoluments Of the Office All tbl
authorities upon this point sustain thi
view.
1T Is, however, coniended by tn
counsel for the plaintiff that the objec
tion now being considered does no
apply, upon the ground that there Is n
question of title involved IN this case
for, while the plaintiff was no
in actual possession he was In legsl pos
session until the irst Thursday in May
. 1892 by virtue of the statute. That ther
was in fact no officer do facto in
I this case. This position cannot be tel
able either in the light OF authority OF
upon principle, for il Is perfectly plsil
! and ia accord with the decisions tbs
; cumbents at once. II one /
. in, tbe other claimant is ont, and tn
d law has never tolerated any other theory
And no law is better established tina
! that all that Is required when there Is a
oAn0o oHSoi 10 ,ao.