The times. [volume] (Richmond, Va.) 1890-1903, 1897-12-03
SUPREME COURT CASES.
DIGESTS or OPINIONS HANDED
DOHy YESTERDAY.
The Construction Of Wiiis--Change of
yenue--Process on Defendant Corpo-
rations-- Contributory Negligence.


| yesterday:
Booker VS.. Donohoe. Reversed Opln-
ion by Judge Keith president
Booker brought action or assumpslt
against Donohoe, containing the common
counts and a special count, setuns our
| that in May. 1895, he was duiy eiected
clerk Of Elizabeth City county ana was
| entitled TO enter thereon the ensuing
| July and TO receive the fees and emolu-
ments thereof: that he was prevented
| from qualifying by DOnohoe. who wrong
| fully and Illegally secured the certificate
| OF election, took charge Of the Office and
| held same until March. 1884. when the
\ Circuit Court. affirming the judgment OF
| the County Court, adiudged Booker en-
| titled 10 the certificate, who then ana
| there qualified and further averring That
| by reason OF the premises Donohoe ne
| came indebted to him I'm the sum OF sl,dVo
the fees and emolumcnts OF the Office
during the time he wrongflly held II. and
undertook and promised 70 pay, &c, when
| thereunto requested.
Demurrer TO declaration and each count
sustained and appeal TO this court
Held: The demurrer being 20 the decla-
ration as a whole and TO each count there
| Of, and the common counts being unques-
| tionably good IL could only have been
| sustained on the theory Of a misjoinder
| Of counts, II being bad pleading 10 com
| bine counts upon a tort with counts in
assumpsit. But the special count is not
| upon a tort. The recital Of facts therein
| discloses a consideration which supports
| the alleged promise where wrong
| fully takes the property Of and sells it,
| p may bring trespass trOver; detinue or
assumpslt for money had and recethd. M
his election, and by bringing assump-it he
valves all claims for the wrongful deton-
| ton and makes the proceeds Of II money
| had and received 10 his use" Sangster
VS. Commonwealth. II Graft 1872: see also
| Gary VS.. Abingdon Publishing Company.
| q Southeastern Reports sos: Bier VS.. Cor
rel. 20 West Virginia %. The declaration
and all its counts are in assumpsit
g. Where n person has usurped an office
belonging TO another and taken the known
and established fees an action for money
! had and received viii lie against the in
truder on the part OF the party entitled
| for their recovery. ] Selwyn, n. T.. 81;
1 Chitty's PL. 100; Arris VS. Stukelcy. 2
Modern. 2GO: Dorsey vs.. Smith. % Cal. q.
3. While an office Is not property in the
sense that cattle and lands are, and an
officer acquires no vested right that the
office shall be continued during the time
for which he was elected. While the
Legislature may abolish the Office during
HIS term or diminish the salary. or change
tho mode Of compensation. subject only
10 constitutional restrictions: vet within
these acknowledged limits the right 10
an ofiico carries with it the right 10 it's
emouments which Cmolumonts follow
the true title. Nichols VS.. Mclean. 10l
~ y 500: Kessel VS. Triesier. 1O2 y Y.
W h..
A As against an intruder. wrong-d0er
or usurper. the rightful claimant NAV
recover fees and cmOlumonts ws4out
having qualified I'm the mode prescribed.
Coms-ock vs.. City Of Grand Rapids TO-
Mich. 39S. kreitz W.. Behncnsmcvcr.
Is y. T.. r.. 94: state VS. Johnson. II
Ark, iO7' City OF Philadelphia VS.. Rink.
u Amer. & Eng. Cor. Cases. 2Sj These
cases establish the right Of the rightful
claimant TO recover; .. 10 recover by
indebitatus assumpist: @. that qualifying
by taking oaths. giving bonds &c. are
not necessary as conditions precedent
?. Under our form Of government the
pcrpetuity Of our institutions and the
preservation of tho liberty Of The people
depend upon honest and fair elections.
and the highest public policy requires
that the laws should be so framed and
administered as 10 secure fair elections
70 hold that defeated candidate who
by any artihce or device. obtains the GER
tidcate Of election and IS INDICTED into
Office may retain It until as the result
II may be, Of prOtracted litigation the
rightful claimant prevails; and that I'm
the meantime he may receive and retain
the fees and emouments without being
accountable therefor. Is repubnant 10
natural justice and offers an inducement
TO the commission Of fraud bv permitting
the Derpetrator 10 enjoy its fruits I'm So
curity. To hold that the injured party
must qualify as q condition precedent 70
his right Of action would be 10 allow the
wrong-doer 20 take advantage Of his own
wrong. he having deprived his competitor
Of the only evidence which would entitle
him 10 qualify-the certificate OF election
o. Measure Of Damages. IT tho plain
til prove his case he will be entitled 20
recover such proportion Of the allowance
made for the current official year "a was
wrongfully received by the intruder: and
as TO fees, for services performed. 20 the
profits thereof. that Is. tho amount OF the
fees less the necessary expense Of earn
ing them, unless the intruder were guilty
OF fraud in procuring the certificate NJ
election I'm which case he should not he
allowed 10 make any deduction. pior Va
Gorrell, and Arris W. Stukeicv. supra.
ACTION OF AsSUMsIT.
Richmond Union Passenger Railway
Company We. New York Sea Beach Rail-
way Company. Affirmed. Opinion by
Keith =.
This is an action Of assumsit brought by
the New York Company against the Rich
mond Company 10 recover the price Of
certain cars and engines hired by the
plaintiff 10 the defendant The case comes
from the Law and Equity Court Of Rich
mond. This court finds no error in the
judgment OF the lower court and it is az
firmed
In the trial the defendant company the
Richmond Company took a number OF
exceptions and finally dcmurred to the
plainuH evidence: the jury rendered a
verdict in favor OF the plaintiff and then
the richmond Company obtained writ
OF error and supersedeas from this court.
Al the time Of the suit the Richmond
Company had ceased 10 be a CORPORATION
and was sued by virtue Of section 1903 OF
the Code, which provides that. When a
corporation shall expire or dissolve
all It's works and property and debts due
II shall be subject 10 the payment OF
debts due by IL and such corpora
tons may sue and be sued as before"
Service OF process was upon the late
president of the company, Mr.. George T.
Fisher. and the Richmond Company con-
tended that the corporation having ceased
TO exist there was no person upon whom
process could be served. This court thinks
this contention untenable.
The court takes up twelve bills Of excep-
ton and reviews them at length and then
says that they are of the opinion that
none OF them are tenable.
In this case the negotiation looking 10
the hiring OF the engines was Commenced