beneficial to the defendant, because a jury may give in damages for the tort a much greater sum than the value of the goods. In the present case the defendant wrongfully acquires the labor of the apprentice; and the master may bring his action for the seduction. But he may also waive his right to recover damages for the tort, and may say that he is entitled to the labor of his apprentice, that he is consequently entitled to an equivalent for that labor, which has been bestowed in the service of the defendant. It is not competent for the defendant to answer that he obtained that labor, not by contract with the master, but by wrong; and that therefore he will not pay for it. This case approaches as nearly as possible to the case where goods are sold, and the money has found its way into the pocket of the defendant.

HEATH, J.-So long back as the time of Charles the Second it was held that the title to an office, under an adverse possession, might be tried in an action for the fees of the office had and received; and HOLT, Ch. J., held it clear law that if a person goes and receives my rents from my tenants, I may bring my action against him for money had and received. It is for the benefit of the defendant that this form of action should be allowed to prevail, for it admits of a set-off, and deductions, which could not be allowed in an action framed on the tort.

vii. Usurpation of Office.

Rule discharged.1

ROSALIE KREITZ, ADMX., v. BEHRENSMEYER.

149 ILL. 496.-1894.

PHILLIPS, J.-At the election in November, A. D. 1886, John B. Kreitz and one Behrensmeyer were candidates for election to the office of county treasurer of Adams county, Ill., and, on the canvass of the returns, Kreitz was declared elected by a plurality of fourteen votes; and, a certificate being made, a commission was issued to him by the governor, as the duly-elected county treasurer of Adams county, whereupon he qualified, and entered upon the discharge of the duties of that office,-continuing to occupy the office, and discharge its duties, until his death, in 1890. Appellee, by proper notice and petition, contested the election of Kreitz, which, after extended litigation, finally resulted in appellee being declared duly elected to the office of county treasurer of Adams county, by the judgment of this court, reported as Behrensmeyer v. Kreitz,

1Accord, Hopf v. U. S. Baking Co., 6 Misc. 158 (N. Y. Supreme Ct.) (1892), where it was held that a father, by suing for his minor son's wages, had waived the tort of the defendant in harboring the son against his father's wish.

135 Ill. 591, 26 N. E. 704. Kreitz having died before the filing of this opinion, such proceedings were had in this court that the judgment of reversal was entered nunc pro tunc as of the 11th day of June, A. D. 1890, which declared Behrensmeyer elected to said office. On the 6th of April, 1892, appellee filed a claim against the estate of John B. Kreitz in the county court of Adams county, seeking to recover the sum of $10,000 for fees and salary received by Kreitz for Behrensmeyer's use, and interest thereon. On the petition of appellant, the venue on this claim so filed was changed from the county court to the circuit court of Adams county, where a trial was had which resulted in a finding and judgment in favor of appellee, and against appellant, for the sum of $7,333, to be paid in due course of administration, as a claim of the seventh class. Appellant prosecuted an appeal from that judgment to the appellate court of the third district, where the judgment was affirmed; and she now brings the record to this court by appeal, and urges that appellee has no cause of action, and asks that this case may be considered as one of first impression, regardless of what was said by this court in Mayfield v. Moore, 53 Ill. 428,-arguing that that case was decided under the constitution of 1848, and that by the provisions of the constitution of 1870 a different rule must prevail, inasmuch as, by the provisions of the latter, the fees of the office belong to the county, from which a salary is paid for the discharge of the duties of the office, while under the former the fees belonged to the officer.

It is conceded that no statute exists in this state declaring the rights of a de jure officer to recover from a de facto officer the salary paid such de facto officer, who has discharged the duties of the office under a wrongful or a mistaken purpose. There is no legislation on that subject in this state. The right of recovery, if it exists, depends, therefore, on the principles of the common law. The common law is a system of elementary rules and of general judicial declarations of principles, which are continually expanding with the progress of society, adapting themselves to the gradual changes of trade, commerce, arts, inventions, and the exigencies and usages of the country. Judicial decisions of common-law courts are the most authoritative evidence of what constitutes the common law. By chapter 28, Starr & C. St. Ill., the common law of England is declared in force in this state. By reference to the decisions of the common-law courts of England, the common law of that country is to be found. An examination of the decisions of the courts of that country shows a uniform declaration of the principle that a de jure officer has a right of action to recover against an officer de facto by reason of the intrusion of the latter into the office, and his receipt of the emoluments thereof. Among others, the following opinions of English courts may be referred to as sustaining this right of recovery: Vaux v. Jefferson, 2 Dyer 114; Arris v. Stukely, 2 Mod. 260; Lee v. Drake, 2 Salk. 468; Webb's

Case, 8 Coke 45. By the adoption of the common law of England the principle announced in these cases was adopted as the law of this state, for the principle is of a general nature, and applicable to our condition. On the basis of a sound public policy, the principle commends itself, for the reason that one would be less liable to usurp or wrongfully retain a public office, and defeat the will of the people or the appointing power, if no benefit but a loss would result from wrongful retention or usurpation of an office. The question has frequently been before the courts of the different states and of the United States, and the great weight of authority sustains the doctrine of the common law, as shown by the opinions of the judges in different states; and which in most of the states are based on the common law, without reference to any statute. The following cases are in point: U. S. v. Addison, 6 Wall. 291; Dolan v. Mayor, 68 N. Y. 274; Glascock v. Lyons, 20 Ind. I; Douglass v. State, 31 Ind. 429; Currey v. Wright, 9 Lea 247; Kessel v. Zeiser, 102 N. Y. 114, 6 N. E. 574; Nichols v. MacLean, 101 N. Y. 526, 5 N. E. 347; People v. Miller, 24 Mich. 458; Hunter v. Chandler, 45 Mo. 452; People v. Smith, 28 Cal. 21; Petit v. Rousseau, 15 La. Ann. 239. And the only case enunciating a different rule is that of Stuhr v. Curran, 44 N. J. Law 181, where the conclusion was reached by a divided court.1

While it is true that in this state a public office is not a franchise nor an incorporeal hereditament, but a mere public agency created for the benefit of the state, yet the salary or emoluments annexed to a public office are incident to the right to the office, and not to the mere exercise of its duties, or its occupancy; and whether the compensation of the officer is by fees, or a salary, the rule is the same. People v. Smith, supra; McVeany v. Mayor, 80 N. Y. 185; Comstock v. Grand Rapids, 40 Mich. 397.

Such being the rule, the constitution of 1870 did not change the law, in this respect, from what it was under the constitution of 1848. [Here follows a discussion of the sections of the constitution of 1870.] The provisions of those sections creating no different rights, so far as a de jure officer is concerned, the rule announced by this court in Mayfield v. Moore, 53 Ill. 431, is as applicable under the present constitution as under the constitution of 1848, and in harmony with the rule of the common law of England, as well as with the great weight of authority in this country, and has been followed by this court in more recent adjudications. Farwell v. Adams, 112 Ill. 58; Waterman v. Railroad Co., 139 Ill. 669, 29 N. E. 689. We adhere to the rule as announced in Mayfield v. Moore.

1In Stuhr v. Curran (1882), the question is exhaustively discussed and the authorities reviewed in the prevailing opinion by VAN SYCKEL, J. (pp. 183-192), and in the dissenting opinion by Beasley, C. J. (pp. 192-206). This decision of the New Jersey Court of Errors and Appeals was by a vote of 7 to 5.

It is further insisted that appellee cannot recover because he was never fully qualified, not being commissioned by the governor, and not filing bonds, as collector, for the years 1888-89-90. As was said in Mayfield v. Moore, supra: "Under the law, so soon as a majority of the votes were cast for appellant at the election held in pursuance to law, he became legally and fully entitled to the office. The title was as 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 title, but not the title. The title was conferred by the people; and the evidence of the right, by the law." The contested election was continued through a long period of litigation, and, by the final adjudication of a court of competent jurisdiction, the appellee's right to the office was determined in his favor. That determination was after the term expired for which he had been elected. His right to recover does not depend upon his possession of a commission. The judgment of the court determined his right. Neither is his right to recover affected by the fact that he failed to give bond as collector for the years 1888, 1889, 1890, and failed to qualify. The statute requiring the oath of office and bond to be given by or within a specified time applies only to a person to whom the certificate of election has been given, or who has been declared elected. Where an election has been contested, and the contestant is declared elected, the requirement to qualify within a prescribed time does not apply until the termination of the contest. Farwell v. Adams, supra. The law will not require a useless act, and by taking the oath of office, and filing bonds, as collector, for the several years of 1888-89-90, no purpose could have been subserved, as the contest was not determined until after the full term had expired. Appellee's right of recovery is therefore not affected by these considerations.

* *

*

We do not desire to enter on a discussion of the question as to whether it is a hardship on Kreitz, or his estate, that he should be held to receive no compensation for his services; for, however great that hardship may be, the rule of law has been long settled in this state that the de jure officer may recover the fees or salary paid to a de facto officer. The rule is in accord with a sound public policy. Its tendency is that there would be less danger or frequency of usurpation or intrusion into an office. Its tendency is to cause greater caution in, and purify, elections, as one, with such danger attendant on illegal voting, would abstain from encouraging it. Its tendency is to cause a careful investigation into the right to an office, where a notice of contest is served and petition filed. Public interest is in accord with private right, when it is held that one lawfully elected to an office, and deprived of the office by another, may recover the salary or fees attendant on the office. The rule is not changed by reason of one holding a certificate of election, and entering in good faith, under a mistaken belief of right. However much the good faith of one entering, the right exists somewhere; and, if the right existed in another, he is an intruder in the office,

and enters at his peril. As was said in Mayfield v. Moore, supra: "After the vote was canvassed by the clerk and justice of the peace, appellant promptly gave appellee notice that he would contest the election, and specifically pointed out the grounds. Being thus apprized of the grounds upon which appellant based his claim, the sources of information were open to him to learn 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 on another. He has intruded into appellant's office without right, and has received the profits of the office; and, like the person entering into the land of another with a defective title, he must answer for the profits." We find no error, and the judgment of the appellate court is affirmed. Affirmed.1

D. RELATION OF QUASI-CONTRACT TO EQUITY.

LORD SUMNER IN SINCLAIR v. BROUGHAM.2

[1914] A. C. 398, 454-456.

Historically, the action for money had and received was not devised by the Court of Chancery, nor was it applied there either in form or in substance. It was a form of assumpsit, already old in Lord Mansfield's time, and his own citation of earlier actions of this sort should be enough to show, if that were necessary, that he never thought otherwise. It was said to be a "liberal" action in that it was attended by a minimum of formality, and was elastic and readily capable of being adapted to new circumstances. The action has been described as “liberal" because "the party waives all torts, trespasses, and damages." Anon., 1772, Lofft, 320. In and after Lord Mansfield's time its liberality in point of practice is shown by the fact that the plaintiff declared with a minimum of particulars and the defendant pleaded the general issue, under which he could prove almost anything. (See 2 Williams' Saunders, 120, Notes to Chandler v. Vilett; Orton v. Butler, 1822, 5 B. & Ald. 652; Owen v. Challis, 1848, 17 L. J. C. P. 266. No doubt it gave scope (at least in days when reported cases were less multi

'Accord, Booker v. Donohue, 95 Va. 359 (1897). Where the intruder acted in good faith, and in apparent right, there should be deducted from the amount of fees and emoluments sought to be recovered from him, his reasonable expense incurred in earning them. Mayfield v. Moore, 53 Ill. 428 (1870); Albright v. Sandoval, 216 U. S. 331 (1910). (Contra, Douglass v. State, 31 Ind. 429 (1869).) But there should be no deduction for the personal services of the intruder, nor for the profitable use of the de jure officer's time while he was deprived of the office. People v. Miller, 24 Mich. 458 (1872).

A statement of the facts in this case and a part of Lord Chancellor Haldane's opinion are reported herein ante p. 88.