Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-12-03
THE SUPREME COURT.
A NUMBER OF OPINIONS HANDED
DOWN YESTERDAY.
TWO RICHMOND CASES DECIDED.
The Law and Equity Court Sustain
ed In One and the Chancery Court
ONCE Pending Contest.

Opinions were handed down In eigf
cases yesterday in the Supreme Coui
of Appeals. Two Richmond cases wer
decided. The Law and Equity Court wa
sustained in one and the Chancery Cour
reversed in another. Following are di
gests Of the decisions rendered.:
Booker VS.. Donohoe. Reversed. Opinion
by Keith. T..
b.. brought action of assumpsit agains
d., containing the common counts anC
a special count setting out that in May
1895, he was duly erected Clerk Of Eliza
beth City county, and was entitled to en-
ter thereon the ensuing July. and to re-
ceive the fees and emoluments thereof
that he was prevented from qualifying
by D., who wrongfully and Illegally Sc
cured the certificate of election, took
charge of the office, and held same till
March, 1894, when the Circuit Court. al
firming the judgment Of the County
Court, adjudged b. entitled to the GER
t~ihcate, who then and there quaiined,
and further averring that by reason or
the premises, d.. became indebted to him
In the sun of 1890, the fees and emolu-
ments of the office during the time he
%wrongfully held it and undertook and
promised to pay, &c, when thereunto re-
quested.
Demurrer to declaration and each
count sustained. and appeal to this court.
Held: l. The demurrer being to the
declaration as a Whole and to each count
thereof, and the common counts being
unquestionably good, it could only nave
been sustained on the theory of a mis-
Joinder of counts, ii being bad pleading
10 combine 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 A. wrorgfully takes the property
OF b. and sells il, b. may bring trespass,
trover, detinue, or assumpsit for money
had and received at his election. and by
bringing assumpsit he valves all claims
for the wrongful detention and makes
the proceeds of II money had and received
to his USE Sangster VS.. Com, II Graft,
See, also, Gary VS.. Abingdon Pun.
Co, II S. +. r., 595; Bier VS.. Borrell. 20
w. Va, 81. The declaration and all its
COunlS are IN d~SSumpSlt.
z. Where a person has usurped an office
belonging to another. and taken the
and established fees. an action
Tor money had and received will lie
against the intruder on the part of the
)arty entitled for their recovery. l Sell
Hyn, n. p, 81; l Chitty's Pl., 100; Arris
vs.. ~Stukeley, 2 Modern, eco; Dorsey VS..
smith. 2S Cal, p.
3. While an office is not property i'm the
sense that cattle and lands are, and an
'mcer acquires no vested right that the
'ihce shall be continued during the
line for which he was elected: while the
legislature may abolish the o%ce during
us term, or diminish the salary. or
mango the mode Of compensation. sub
ect only TO constitutional Restrictions.
ct within their acknowledged limits the
light TO an office carries with it the right
0 its emoluments, which emoluments
ollow the true title. Nichols VS.. Nc
1l n. Y, 526; Kessel We. Ziesier.
y N. Y, ia; Dolan VS.. the Mayor. IS
7. Y. ga.
T. AS against an intruder, wrong-doer
T usurper, the rightful claimant NAV re-
over lees ana emoiuments without having
ualified in the mode prescribed. Com
Iock VS.. City Of Grand Rapids. 40 Mich
Kreitz VS.. Behrensmeyer. 26 n. r p
A. state VS.. johnson. II Ark, 4O7; CITY
Philadelphia VS.. Rink, II Amer. and
Cor. Cases. 2S5. These cases estab-
sh-l, the right Of the rightfuI claim
NJ 10 recover; 2, TO recover by indebita-
Is assumpsit; 3, that qualifying. by
KING the oath, giving bond. &c. are
necessary as conditions precedent.
D. Under our form of government the
of our institutions and the
OF the liberty of the people ,
upon honest and fair elections. ,
III the highest public policy requires ,
AT the laws should be so framed and a.,
'minlstered as TO secure fair elections. }
} mold that a defeated candidate. who. .
any a%rtiice or device, obtains the GER )
lcate OF election, and is inducted into ,
nee, may retain it until, as the result :
may be, OF protracted litigation. the :
sht1ul prevails. and that in ,
e mean time he may receive and retain :
c ices and emoluments without being :
therefor. is r%epugnant To !
tural justice and offers an inducement :,
the commission of fraud by permit +
* the perpetrator to enjoy its fruits
security. To hold hat the injured y
rty must qualify as a condition pre- !
ient or his right of action would be v
allow the FgrOng-doer to take advan- u
- - HN' W. niOliSs Ut HdNluS Ut-
we'd his 81 hcpetitor of the only evil A
nee w~hichalgould entitle him TO quali-
the certificate Of election.
Measure of Damages: II the plaintiff
his case he will be entitled to re- In
yer such proportion Of the allowance 81
de for the current official year as was bI
ongfully received by the intruder. and a,
to fees for services performed, to the in
.hts thereof-that Is, the amount of .
fees, less the necessary expense of
ming them, unless the intruder were !
lty of fraud in procuring the certif- /
e OF election, in which case he .hould /
be allowed to make n deduction. l
r VS.. Gorrell and Arris VS.. Stukeley. i
ra.
OCESS ON DEFUNCT CORPORA
TION.
hmond Union Passenger Railway
ay Company VS.. New York Sea Beach
ailway Company. Affirmed. Opinion
Z Keith, =.
ssumpsit by the New York Company
the Richmond Company for the price ,
cars and engines hired to the Va
er. AT time of suit the Richmond I;
1pany had ceased to be a corporation. h
process was served upon its late -
'ident, and the contention is that the I
: method by which it could be i'm N
ded was by publication as prescribed l.
the statute. Code. section 1903. ~
I'D: Were this contention tenable. I'll
from the time his statute was a
tied i'm 1898. till it's amendment In -
there was a right without a remedy.
there would nave been no mode by =,
n ii could be brought before a court. Al
)re II ceased TO exist IL could be
Ight into court by process served on
president, and If, by virtue Of the