wen, that the right to the fees and enclamenta a stated to be exertensive with the office: and this is zobostrelly esurrect, as it la analogous to every other thing apable of ownership. No principle of law an be learn than that the owner of lands and shattels is entitled to the prod increase or frie dowing from them: and the fees of an office are incident to it, as fully as are the rents and produ of lande, the increase of cattle, or the interest on bends or other securities. A person owning any of these thinks. in, by virtue of such ownership, equally entitled to the isense and profite thereof, as to the thing itself Lithen, the appellant was the owner of, and held the title to the office of sheriff, he was as clearly invested with the right to receive the fees and emoluments; they were incident to. and as clearly connected with the office, as are rents and profits to real estate, or interest to bonds or such like securities. Glascock r. Lyons, 20 Ind. 1; Petit r. Rosseau, 15 La. 239; People r. Smyth, 28 Cal. 21; People r. Tieman, 30 Barb. 193. We think that, on both reason and authority, the appellant is entitled to recover the fees and emoluments arising from the office whilst it was held by the appellee.

It is, however, urged, that the appellee surrendered the office as soon as it was finally judicially determined that the appellant was entitled to it, and is, therefore, not liable to account for any fees but those received after the circuit court decided the case on appeal from the three justices of the peace. This is not a question of intention, but a question of legal title to the sum in dispute. Under the law, so soon as a majority of the votes were cast for the appellant, at the election held in pursuance of law, he became legally and fully entitled to the office; the title was as

(Fees of office pending a contest.)

complete then, as it ever was, and no subsequent act lent the least force to the right to the place. The commission was evidence of the title, but not the title; the title was conferred by the people, and the evidence of the right by the law. Nor can it be successfully claimed, that the appellee was not in the wrong; he was bound, before entering upon the discharge of the duties of the office and the receipt of the emoluments, to know whether he had title; his position was the same as that of a person who, having a defective title to a tract of land, enters into possession and the receipt of the rents and profits; he entered at his peril. Nor do we perceive any hardship; after the vote was canvassed by the clerk and a justice of the peace, the appellant promptly gave the appellee notice that he would contest the election, and specifically pointed out the grounds; being thus apprised of the grounds upon which the appellant based his claim, the sources of information were open to him to have learned the facts, and to have acted upon them; failing to learn them, or, having done so, not heeding them, he has no reason to complain if he has to respond to the wrong perpetrated upon another. He has entered into the appellant's office, without right, and has received the profits of it, and like the person entering into the land of another, with a defective title, he must answer for the profits.

Inasmuch, however, as the appellee obtained the certificate of election and a commission was issued to him, he was acting in apparent right, and in so far as this record. discloses, he resorted to no fraudulent or improper means to produce that result, he does not occupy the position he would, had he resorted to such a course. He should only be required to account for the fees and emoluments of the office received by him, after deducting reasonable expenses incurred therein. This being an equitable action, it should be governed in this respect by the same rules that would have obtained, had this been a bill for an account, instead of an action for money had and received. He should have

(Fees of office pending a contest.)

only a reasonable allowance for the necessary expenses in earning the fees and emoluments; had he intruded without pretence of legal right, then a different rule would, no doubt, have been applied.

In adopting the time when the circuit court decided that the appellant was entitled to the office, as the period from which he was entitled to have the fees and emoluments of it, the circuit court erred. That decision was no more potent to confer the right to the office, than was the decision of the three justices of the peace; it, as we have seen, was not the decision, but the vote of a majority of the electors of the county, that conferred the right; the court, on the evidence, found and declared the title, but did not confer it. We have seen, that the appellant was entitled to the office and its emoluments from the time the appellee entered into it, and he became liable to account for them from that date, until he ceased to act and receive the fees and perquisites of the office. The judgment of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed.

As early as 30 & 31 Car. II., it was ruled by the court of king's bench, that assumpsit for money had and received would lie against a usurper, for the fees received by him, during his occupancy of the office. Howard v. Wood, 2 Lev. 245; s. c. 2 Jones 126. And this was followed in Arris v. Stukely, 2 Mod. 260; Powell v. Milbank, 1 T. R. 399 n.; Boyter v. Dodsworth, 6 T. R. 681; Lightly v. Clouston, 1 Taunt. 114; Crosbie . Hurley, 1 Alc. & Nap. 431. And the same doctrine is fully sustained by the American cases. Thus, in People v. Pease, 27 N. Y. 56, it was said by Davies, J., that on a recovery in quo warranto, “the legal consequences follow, that the person usurping the office is ousted, the person legally entitled takes the office and its fees, and recovers from the usurper the fees or emoluments belonging to the office, received by him by means of his usurpation; if the term of the office should have

(Fees of office pending a contest.)

expired before the final determination of the question, it follows, that the successful party cannot take the office, but he will be none the less entitled to recover the fees and emoluments to which he was legally entitled, which may have been received by the usurping claimant. So, in People v. Tieman, 30 Barb. 195, it is said, that "the salary and fees are incident to the title, and not to the usurpation and colorable possession of an office.-Possession under color of right may well serve as a shield for defence, but cannot, as against the public, be converted into a weapon of attack, to secure the fruits of the usurpation and the incidents of the office."

In Indiana, it has been decided, that if a person rightfully in the possession of an office to which he is entitled, be ousted therefrom by an intruder, an action for money had and received will lie in his favor, against the usurper, to recover the fees, when fixed or customary fees are incident to the office; and that in such action, the title to the office may be determined. Glascock v. Lyons, 20 Ind. 1; Douglass v. State, 31 Ind. 479. In California, it was held, that one having the legal right to an office, but not in possession of the same, is entitled to the salary for the term for which he was elected; and that the payment of the salary to one in possession, without title, would not prevent the party having title from recovering the salary. People v. Smyth, 28 Cal. 21; People v. Oulton, Ibid. 44; Carroll ». Liebenthaler, 19 Am. L. Reg. 448: and see Petit v. Rousseau, 15 La. 239. In Pennsylvania, the only case, in which this question has been referred to, is that of Ewing v. Thompson, 43 Penn. St. R. 378 (ante 580), where it was said by Mr. Justice Strong, that in the case of a contested election for sheriff, the party found to be legally entitled to the office would be entitled to recover from the usurper the fees and emoluments of the office from the date of his commission; but this was not the point in the case, and appears to have been a dictum given without argument upon the question. The right to recover, however, in such cases, appears to rest both on principle and authority. See Hunter v. Chandler, 45 Mo. 453; Philadelphia v. Given, 60 Penn. St. R. 136; United States v. Addison, 6 Wall. 291; Mott v. Connelly, 50 Barb. 516.

JACKSON V. WALKER.

In the Supreme Court of New York.

MAY TERM 1843.

(REPORTED 5 HILL 27.)

[Influencing elections.]

An agreement by the defendant to pay the plaintiff $1000, in consideration that the latter, who had built a log-cabin, would keep it open for the accommodation of political meetings, to further the success of certain persons who had been nominated for members of congress, &c., is illegal, and cannot be enforced.

Error to the Superior Court of the city of New York. In the court below, the plaintiff, in his declaration set forth that, in 1840, he erected a building in Broadway, in the city of New York, commonly called a log-cabin, intended for public and other meetings of the whig party, and for the sale of refreshments; that he suffered a loss therein and was about to tear it down; and that in consideration that he would suffer it to remain and be kept open for the benefit of the whig party, until after the election of members of congress and presidential electors, &c., to be elected in November of that year, the defendant promised to pay him $1000 on the 20th of November.

On the trial it was proved, that the plaintiff built the log-cabin, in 1840, at an expense of $1600 to $1800; in August of that year, he said he would take it down, unless a certain sum were raised; a subscription was opened, and nearly $200 were subscribed; the plaintiff and defendant then met, and the defendant told the plaintiff that “the log-cabin must not be taken down until after the election, that he," the defendant, "would not permit the whig flag across Broadway to be struck," and that he would raise the balance of $1000, or pay it out of his own pocket, by