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fire commissioners appointed in his place Peter Seery inspector of combustibles, at the same salary, and he immediately entered upon the discharge of the duties of the office and received the salary thereof until the plaintiff was reinstated in the office. This action is to recover the salary of the office during the time the plaintiff was kept out of the office by the action of the fire commissioners. At the trial term it was held that the plaintiff could recover, and judgment was rendered in his favor for the amount of salary claimed. The defendant then appealed to the general term of the court, and it reversed the judgment and granted a new trial.

Roswell D. Hatch for appellant.
D. J. Dean contra.

EARL, J.

(After stating the facts.) We are of opinion that the judgment was properly reversed. The office of inspector of combustibles was a public, salaried office, and during the period for which the salary is claimed, the office was actually held, and duties thereof were discharged by Seery, and the salary was paid to him. He was in office under color of appointment by competent authority. He possessed the office and discharged its duties. That, under such circumstances, he took on the character of an officer de facto cannot be doubted. People v. White, 24 Wend. 540; People v. Cook, 14 Barb. 259; S. C. 8 N. Y, 67; Lambert v. The People, 76 Ib. 220. It is no longer open to question in this state that payment to a de facto officer, while he is holding the office and discharging its duties, is a defence to an action brought by the de jure officer to recover the same salary. Dolan v. The Mayor, 68 N. Y. 278; McVeany v. The Mayor, 80 Ib. 15. But the plaintiff claims that his action may be treated as one to recover of the city damages for his wrongful dismissal from office. It is a sufficient answer to this claim that the city did not dismiss him from his office. The fire commissioners were public officers and not agents of the city. Maximilian v. The Mayor, 62 N. Y. 160; Tone v. The Mayor, 70 Ib. 157; Ham v. The Mayor, Ib. 459; Smith_v. Rochester, 76 Ib. 513. The city is no more liable for their wrong in dismissing the plaintiff than it would have been if they had committed an assault and battery upon him: If the plaintiff has any remedy for the damages he has sustained, it must be by an action against the fire commissioners for his wrongful dismissal, or by au action against Seery to recover the salary which, as between him and the plaintiff, he wrongfully received.

Order reversed, and judgment absolute against defendant.

AN ENGLISH JUDGE ON CONJUGAL TROUBLES.

A painful case came before Sir James Hannen in the English probate and divorce division a few days ago. In 1870 the widow of Sir P. HeskethFleetwood, baronet, a woman of nearly 60, married a tutor of 31, Henry Wills. After living

with him for nearly six months she left him, alleging cruelty and neglect, and having a private income of £130 a year, offered him £50 a year or £300 cash if he would let her alone. The man has now brought suit for the restitution of his conjugal rights denying that he is actuated by mercenary motives, and alleging that what he desires is the society of his wife, who is dear to him. Sir James Hannen asked, with slightly obvious contempt: "What would compensate you for the loss of a wife who has lived apart from you since 1870?" But ss the plaintiff insisted, the judge had no option but to give judgment, which he did in the following words: This jurisdiction which I am asked to exercise is one which is unknown in any other country in the world, and I am never called upon to exercise it but I do so with greatest reluctance. I have never had a question of the kind before me which was not a question of terms, and I think the present case is of that nature. However, as I am called upon to exercise my jurisdiction in the matter, I must pronounce a decree for the restitution of conjugal rights as asked for. The decree, however, will stand over for three months before being enforced. I allow no costs."

SUPREME COURT RECORD.

[New cases filed since last report, up to April 25, 1882.]

1123. Squire & Homer v. C. & F. Nachtrieb. Error to the District Court of Crawford County. S. R. Harris for plaintiffs.

1124. Proctor Thayer v. Continental Life Insurance Company. Error to the District Court of Cuyahoga County. R. J. Winters and C. E. Pennewell for plaintiff.

1125. Robert Kerr et al. v. Charles Young et al. Error to the District Court of Crawford County. S. R. Harris for plaintiff.

1126. George W. Nelson v. John W. Vogan. Error to the District Court of Columbiana County. Clark & MoVicker and W. J. Jordan for plaintiff; Frost & Morrison for defendant.

1127. City of Steubenville v. George W. McGill. Error to the District Court of Jefferson County. C. A. Reynolds for plaintiff.

1128. Christopher Butler v. John Shearer. Error to the District Court of Scioto County. Moore & Newman for plaintiff; W. A. Hutchins for defendant.

1129. Amos Christy et al. v. Commissioners of Ashtabula County. Error-Reserved in the District Court of Ashtabula County. Hutchins & Tuttle and R. P. Ranney for plaintiffs; E. Lee and E. C. Wade for defendants.

1130. Pittsburgh, Cincinnati & St. Louis Railway Company v. Emily E. Staley. Error to the District Court of Warren County. Charles Darlington for plaintiff.

1131. Nancy Pepple et al. v. Franklin Pricer et al. Error to the District Court of Auglaize County. F. C. Layton and Harrison, Olds and Marsh for plaintiffs.

SUPREME COURT ASSIGNMENT.

FOR ORAL ARGUMENT.

April 27th-No. 1045. Ohio ex rel. v. The Middleburgh Mutual Aid and Life Association. Quo warranto. April 28th-No. 1047. Ohio ex rel. v. The Standard Life Association of America. Quo warranto.

SUPREME COURT OF OHIO.

JANUARY TERM, 1882.

Hon. JOHN W. OKEY, Chief Justice; Hon. WILLIAM WHITE, Hon. W. W. JOHNSON, Hon. GEO. W. McILVAINE, Hon. NICHOLAS LONGWORTH, Judges.

Tuesday, April 25, 1882.

GENERAL DOCKET.

No. 75. Lloyd 'v. Moore. Error to the District Court of Scioto County.

LONGWORTH, J., Held:

Where the judge, at defendant's request, gave to the jury a certain special charge, in addition to his general charge, which said special charge was erroneous, and afterwards having been requested by the jury to repeat his charge to them, repeated the general charge, but declined to repeat the special charge, there was no error in refusing to repeat the erroneous instruction. Judgment affirmed."

1076. The State of Ohio ex rel. Attorney General v. Henry Heinmiller. In Quo Warranto.

MCILVAINE, J.. Held:

1. Under section 1749 of Revised Statutes, the mayor of a city has power to suspend officers appointed by him under an ordinance, for neglect of duty, misconduct in office or other sufficient cause "and may appoint other persons to fill the temporary vacancy occasioned thereby; and all such suspensions, and the cause thereof, and all such appointments, shall be by him reported to the council for their action at the next regular meeting thereafter." Held: 1st. That the council may, in its discretion, approve or disapprove such suspension. 2d. That the action of the council may be had upon such information as may come to its knowledge. 3d. The disapproval of such suspension by the council terminates the vacancy occasioned thereby. 4th. Upon the termination of such vacancy, the person appointed to fill it, ceases to be an officer of the city.

2. A petition in quo warranto prosecuted on behalf of the State by the Attorney General to oust an incumbent of an office, need not set forth the name of the person claiming to be entitled thereto as is required by section 6766 of the Revised, Statutes in cases prosecuted by a person claiming to be entitled to the office. Judgment of ouster.

33. Otis B. Little v. The Eureka Fire & Marine Ins. Co. Error to the Superior Court of Cincinnati. JOHNSON, J. Held:

A policy of insurance, having one year to run, was delivered to the insured, without payment of the premium agreed on. In a few days, the note of the insured at gixty days was accepted for the premium, which was not paid at maturity, and remained in the hands of the insurer. After this, and within a reasonable time before the loss, the insurer cancelled the policy, and notified the parties interested therein of such cancellation, and credited on the note, a sum less than the pro rata proportion of the unearned prer ium.

The conditions of the policy provided, that it was not to be binding until actual payment of the premium, and that the insurance should be terminated at the request of the insured, in which case the company was to retain only the customary short rates for the time the policy was in force, also that the company might, at its option, terminate the insurance upon giving notice to that effect, and tendering a pro rata proportion of the premium for the unexpired term. Held: 1st. That by delivering the policy without actual payment of the premium, and by taking a note of the assured for the same, the company waived the condition that the policy was not binding unless the premium was actually paid. 2d. On failure of the assured to pay the note, the company might, on giving reasonable notice thereof before the loss, exercise its option to cancel the policy. 3d. As the note was past due and in the hands of the company at the time of such cancellation, it was not necessary to tender

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959. Cleveland, Columbus, Cincinnati & Indianapolis Railway Company et al. v. Hugh J. Jewett et al. Error to the Court of Common Pleas of Franklin County. WHITE, J. Held:

1. A railroad company may be sued in any county through or into which its road passes, without regard to the nature of the cause of action.

2. The appointment of a receiver to take from the defendants the possession of his property, cannot be lawfully made without notice, unless the delay required to give such notice will result in irreparable loss.

3. In an action to prevent the consolidation of railroad companies, the election of directors for the new company, at a meeting of the stockholders held under sec. 3383 of the Revised Statutes, will not justify, such an appointment against either of the coinpanies, on the ground that part of the stockholders participating in the meeting have been inhibited from doing so by injunc

tion.

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OKEY, C. J.

T. & B. executed an instrument under seal, signed by two witnesses, and acknowledged by T. before a justice of the peace, in which instrument it is covenanted that T. leases to B. two acres of land (described in the instrument), with the use of water in adjoining lands of T. and privilege of conducting it in pipes "to a cheese house to be erected on said premises, T. reserving enough water to accommodate the stock kept on the farms of T. And B. is to build a cheese house on the premises, and agrees to pay T. for the use of the premises and the privileges aforesaid, thirty dollars per annum on the first day of October, in each year, while the premises shall be used as and for the manufacture of cheese; and when the premises sl all no longer be used for such purpose, the premises, together with the privileges aforesaid, shall revert to T., said B. having the privilege of removing all buildings and fixtures put upon said premises by him."

Held, that this was a lease to B. for life, provided he continued to use the premises for the manufacture of cheese thereon and paid rents, with the right at any time to remove the buildings and fixtures placed on the premises by such lessee.

Judgment affirmed.

79. Leroy Orr v. Henry Kelton et al. Error to the District Court of Licking County. Judgment of the district court reversed and that of the common pleas affirmed. There will be no further report.

83. S. J. Hubbard v, T. Z. Riley, assignee &c. Error to the District Court of Hamilton County. Dismisssed for want of preparation.

84. Marvin Porter v. James H. Laws. Error to the District Court of Hamilton County. Dismissed for want of preparation.

86. Bevington & Hoiles v. Hugh Bleakly. Error to the District Court of Stark County. Dismissed for want of preparation.

88. Texas Building Association No. 2. v. Aurora Fire and Marine Insurance Company. Error to the District Court of Hamilton County. Dismissed for want of preparation.

MOTION DOCKET.

68. William McGuire v. The State of Ohip. Motion for leave to file a petition in error to the District Court of Paulding County. Motion granted.

69. Patrick Kelly v. The State of Ohio. Motion for leave to file a petition in error to the District Court of Paulding County. Motion granted.

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The Supreme Court of Pennsylvania has recently wrestled with a case of malpractice wherein the court below-Common Pleas of Mercer County-following a common custom in the Keystone State, warned the jurors that they must not allow any sentiment of sympathy for the plaintiff to penetrate their breasts, simply because he was crippled for life, but must attend strictly to what the doctors swore to. The jurors gave the plaintiff only $1,000 for the wrong inflicted by the surgeon and he appealed. The Supreme Court reversed and remanded the case. It was re-tried in the lower court and a verdict of $1,500 obtained by the plaintiff.

The plaintiff, Haslet, was injured in an accident, suffering a fracture of the leg. He called in one Byles who doctered him after a fashion and allowed kind nature to heal the wound; but had reduced the fracture so unskillfully as to shorten the broken limb about two incheswhich on the end of a man's leg is a long distance-and to turn the foot into a left oblique forward march position. The same old defense was made in the action that is always made in such cases. As many members of the "Medical Society" as was thought necessary were brought in, to testify and did testify that the treatment had been scientific-such as had always been practiced and approved by "Our School of Surgery!" etc. etc. One of the witnesses in this case. began his professional career with a pound of blue mass and now is worth half a million. His practice was entirely among farmers, and when he was once called the farmer and the farm were practically his meat. He was himself tried for malpractice a few years ago, having treated a dislocation as a fracture and crippled his victim. for life. Every doctor who testified on his behalf on that trial, had been previously consulted

by the victim and had been led to believe the healing art had been applied by an Eclectic physician, and each had denounced the job as an outrage and the work of a butcher. But when they found it had been done by one of "our own school" they came promptly to the rescue and cheerfully testified that dislocations of that kind were always treated as fractures, &c., ad nauseum. Of course the jury found for the defendant. We presume his cheerful testimony in this case sprang from his gratitude for a similar favor on the former occasion.

We hail this verdict in Haslet v. Byles, as the dawn of an era wherein a blundering, butchering sawbones must respond in damages for the wrongs inflicted upon his victims by his ignorance and lack of skill. And wherein the villainous esprit du corps that too often makes up the burden of so called proof, allows the aforesaid butchers to go free when brought into court as defendants in malpractice cases. The fact of the business is, that no matter how a so-called surgeon bungles a job, from taking out a wrong tooth, to cutting off the wrong leg, any number of other so called surgeons may be found to swear that the course of treatment pursued was all that science and skill could suggest. For this reason these cases have very rarely been won, and consequently are seldom commenced. We hope, however, that the future will make a different showing. If a lawyer were to bring an action of trespass quære clausem fregit, de bonis asportatis to recover damages for breach of contract, he would hardly find other lawyers to swear that that was the proper form of action. Yet that case would be no more criminally absurd than the case we have above referred to where the brother sawbones swore that a pistol splint was the proper thing for a dislocation of a metacarpal bone. Let doctors beware.

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A., by an agreement in writing, "leased" to B., "all the clay that is good No. 1 fire clay, on his land" described, for a term of three years, subject to the conditions that B. "shall mine, or cause to be mined, or pay for, not less than 2,000 tons of clay every year, and shall pay therefor, twenty-five cents per ton for every ton of clay monthly, as it is taken away." Held:

1. That this was a contract, which gave B. the exclusive right to mine and remove all the good No. 1 fire clay that was on the land, and not a lease of the land itself.

2. If clay of that quality, and in quantity sufficient to justify its being mined existed, B., on failure to mine at least 2,000 tons per year, each year while the contract was in force, was bound to pay for that amount, at the agreed price per ton.

3. But if, in fact, clay of that quality and in quantity sufficient to justify its being mined could not, by the use of due diligence be found on the land, then there was no obligation to pay the amount agreed on, in case of failure to mine. Cook v. Andrews, 36 O. St. 178 followed and approved.

4. Where it is an open question, whether such clay, was to be found on the land, and the exclusive possession of the clay lands was vested in the lessee or purchaser of the clay, for the purpose of ascertaining the fact, the burden is upon him, in order to defeat a recovery for the annual sums to be paid in case of a failure to mine and remove the same, to prove that such clay as is contemplated in the contract did not exist in minable quantity. Cook v. Andrews, supra.

No. 1 fire clay, and over six thousand tons of other good fire clay. The last clause being the amendment made necessary by the ruling of the court on a demurrer to the petition for want of such allegation.

3. That defendant desiring to secure to itself the sole privilege of mining fire clay for a term of years, on said land, entered into said contract. 4. That defendant took possession of said land, and mined and took away large quantities of fire clay, but not to exceed six thousand tons.

The prayer is for a judgment for $1,347.72, with interest from February 25th, 1876, that amount being the difference between $1,500, which was three years rent for said land in case of failure to mine, and $152.28, payments re

Three defenses are pleaded.

Error to the District Court of Scioto County.ceived on the amount due on said contract. The defendant in error brought an action to recover $2,000, less certain credits, under a contract of which the following is a copy:

"This agreement, entered into this 25th day February, A. D. 1873, between Erastus Pond,

of Portsmouth, Ohio, of the first art, and the Scioto Fire Brick Company, of Scio.oville, Ohio of the second part, witnesseth, that the said party of the first part hereby leases all the clay that is good No. 1 fire clay, on his land, situate in Clay Township, Scioto County, Ohio, for the term of three years, from and after this date, subject to the following conditions, that is to say, providing said parties of the second part shall mine, or cause to be mined, or pay for not less than two thousand tons of clay every year, and shall pay therefor twenty-five cents per ton for every ton of clay monthly, as it is taken away. The party of the first part reserves the right, in case he should sell or dispose of said property on which the clay above leased is found, to cancel this lease any time after the first year shall have expired; but, in case the land is not sold, then, and in that case, this lease is to remain in force for the three years. The party of the first part agrees, should he conclude to sell or dispose of the property, to allow the parties of the second part to purchase it, providing they will pay as much for it as any other good and responsible parties. The party of the first party agrees to give the right of way for any roads necessary to get clay away."

To the true performance of the foregoing
agreements, we, the parties, affix our signatures,
the day and date first above written.
[SIGNED.] "ERASTUS POND."

"SCIOTO FIRE BRICK COMPANY."
"Per W. Q. ADAMS, President."

The petition, as amended alleged:

1. The defendant is a corporation duly organized under the laws of this State, and carrying on business at the said county.

2. The plaintiff, on the 25th day of February, A. D. 1873, was, and has since been the owner of a tract of land situate in Clay Township, in said County, containing about one hundred and seventy acres, and upon which were large deposits of fire clay; viz: Over six thousand tons of good

1. It is denied that there was any good number one fire clay on said land, or that defendant received or took away any such, or any other clay that it was required to take and pay for.

2. It admits that shortly after the making of said agreement, the defendant entered upon said tract of land of the plaintiff for the purpose of mining and taking away the good No. 1 fire clay thereon, and proceeded to open the strata of fire clay on said premises, in order to mine and take away therefrom whatever good No. 1 fire clay could be found, or was thereon. In opening said fire clay banks, it was ascertained that the fire clay was not good No. 1 fire clay, but with the expectation that the quality would improve as said banks were more fully opened and developed, a small quantity of the fire clay mined on said premises was taken away and hauled to the works of defendant for the purpose of testing the same. The whole quantity so taken away from said premises was 4563 tons. It avers further, that upon testing said fire clay so taken from said premises, it was ascertained that the same was almost worthless; and for the purpose of making fire brick was, in fact, entirely worthless. Defendant avers that said fire clay so received and taken away from said premises was not good No. 1 fire clay; nor was the same received or taken by defendants as such; nor was the said fire clay so taken of any value.

3. Is a counter-claim to recover back the above payments acknowledged in the petition, on the ground that the clay taken and paid for was worthless. As no question is here made on the action of the court below, on this counterclaim a further statement of it is unnecessary.

On the issues joined, evidence was offered on each side, the tendency of which is disclosed in the bill of exceptions. The jury found for the plaintiff for the full amount claimed.

The bill of exceptions does not purport to set out all the evidence, but only what it tends to prove. Certain charges, and refusals to charge are stated, which are assigned as grounds for reversing the judgment.

Upon the issue made by the denial, that there was any good number one fire clay on the land, the court charged, that the burden of proof was

on the defendant below; and, if the jury found from the evidence that there was good number one fire clay on the lands, in such quantities, as would warrant its being taken out having regard to the expense ordinarily incurred in mining fire clay, they need enquire no further, the verdict must be for the plaintiff.

The court further instructed the jury: "That if they found, from the evidence, that there was no good No. 1 fire clay on the said lands of plaintiff, it did not follow that they must find the issues for defendant; they must inquire further." And to guide the jury in their further enquiries in such an event, at the request of the attorney for plaintiff, the court gave to the jury the following instructions, to wit:

1. "Under the written contract it was the duty of the defendant to examine and determine, within a reasonable time, whether or not there was such clay on the land as it was willing to accept and pay for under the agreement." 2. "If defendant did not, within one year from the date of the contract, examine and test the clay sufficiently to determine its quality and quantity, and continued mining and taking away clay the second year, under the lease, then it became liable to pay to plaintiff at the end of the year for two thousand tons of clay at the contract price, whether it received that amount

or not."

3. "If defendant, during the second year, mined and took away clay under the lease, and did not abandon the lease before the commencement of the third year, and so notify plaintiff, it is liable to pay for 2,000 tons for that year, whether it took away that quantity or not."

pense exceeding the value of the clay so obtained, and would not, for that reason, have been mined by any man of ordinary care and prudence in that business, the defendant was not required to take such fire clay as a good No. 1 fire clay, nor is he required to pay for the same, if he should refuse to take it."

But the court refused to give the same without omitting the words, "nor is he required to pay for the same if he should refuse to take it," and gave said instruction omitting said words. To which ruling of the court, in refusing to give said instruction as asked, and except by omitting said words, and also in giving the same with said words omitted, defendant, by its counsel, excepted.

The defendant asked the court to give the following instruction, to wit:

3. "If, during the first year, the defendant made a reasonable examination of the land, and was unable to find a good No. 1 fire clay on the same and so reported to plaintiff, and the plaintiff thereupon requested the defendant to make a further examinaton of the land the next year, and at his request defendant made a further examination of the land the next year and could not, after a full and reasonable examination of the same, find any good No. 1 fire clay on the tract, and the jury shall also find, from the evidence, that there was no good No. 1 fire clay upon the tract, the verdict must be for defendant."

Which instruction the court refused to give, and for so refusing, defendant by its counsel, excepted.

The grounds relied on for a reversal are: that the court erred in its charge, and in its refusal to charge as requested.

Moore & Newman and J. W. Bannon for

4. "A simple verbal notice by the defendant, or its attorney to the plaintiff, that it should not take any more clay under the lease, is not sufficient; before defendant could release itself plaintiff, in error. from its liabilty under the written lease, it was required to tender to the plaintiff a written release in writing, executed by the defendant, unless there was a waiver upon the part of the plaintiff of the execution of a written release."

Exception was taken to these charges, and then at the request of the defendant, the court gave the following instructions, to wit:

1. "Before the plaintiff can recover in this case, the jury must be satisfied, by a preponderance of evidence, that there was upon the said lands of the plaintiff good No. 1 fire clay in quantities that could, and would, by the use of such usual and ordinary means as are ordinarily adopted by careful and prudent men in that business, have been taken out."

2. The following instruction was asked by defendant to be given, to wit:

"If the jury shall find, from the evidence, that there was to be found on the lands of the plaintiff some good No. 1 fire clay, but that the same was found in such small quantities, or was 80 mixed up with other fire clay unfit for use, or other ingredients that rendered it unfit for use as a good No. 1 fire clay, that it could not be taken out and made fit for use except at an ex

.

W. A. Hutchins for defendant in error.
JOHNSON, J.

The agreement, which is the foundation of the action, is, we think, properly pleaded, as a contract, securing to the plaintiff in error "the sole privilege of mining fire clay" on the land for a term of three years.

The agreement itself, is not a lease of the land, but of "all the clay that is good No. 1 fire clay,' on the land.

If that kind of clay was on the land, the plaint iff in error was bound to mine not less than 2,000 tons each year, the same to be paid for monthly as it was taken away. The exclusive right to possession of the land so far as was necessary to mine and remove such clay was granted.

This was not an exclusive possession of the whole tract, but only for mining purposes. The ownership of the land, with the right to the possession of the same, subject only to the right of possession for the purpose of mining and removing the clay, was in the owner. This, was therefore a contract for the privilege of mining and removing the kind of fire clay specified, as distinguished from a lease of the land.

This right or privilege commenced February

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