Booker v. Donohoe

Citations

• 95 Va. 359
• 28 S.E. 584
• 1897 Va. LEXIS 44

Syllabus

<p>1. Pleading—Counts in Tort and Upon Contract in Same Declaration— Action to Recover Fees of De Facto Officer.—Counts in tort and upon contract cannot be combined in tbe same declaration, but a count which simply sets out the details of an intrusion into an office, and claims of a de facto office the emoluments of an office which have been illegally collected by him, and avers an indebitatus assumpsit to the de jure officer cannot be said to be a count in tort.</p> <p>2. Pleading—Assumpsit—Declaration—Account.—The bill of particulars, or account, required to be filed with a declaration in assumpsit is no part of the declaration.</p> <p>3. Pleading—Assumpsit—Action to Recover Emoluments of Office—De Jure Officer—Taking Oaths and Giving Bond—Case at Bar—Measure of Damages.—Assumpsit is the proper remedy for the recovery by a de jure officer of the emoluments of the office illegally collected by a de facto officer. A de jure officer is entitled to the emoluments of the office of which he has been deprived from the date on which he was entitled to enter upon the discharge of the duties of the office, and it is not necessary as a condition precedent to his right of recovery that he should have qualified himself to discharge the duties of the office by taking the oaths and giving the bond required by law. In the case at bar/the measure of damages of the plaintiff, who was deprived of the office of clerk of the county court, if he proves the case set forth in the declaration, is so much of the ex-officio allowance to the clerk as was collected by the defendant, and the amount of fees received by him as such clerk, less the necessary expense of earning them, unless the defendant was guilty of fraud in procuring the certificate of election, in which event, no deduction should be allowed.</p>