Curry v. Wright

• Decision Date: 17 May 1888
• Citation: 8 S.W. 593,86 Tenn. 636
• Parties: CURRY v. WRIGHT et al.
• Court: Tennessee Supreme Court

8 S.W. 593

86 Tenn. 636

CURRY v. WRIGHT et al.

Supreme Court of Tennessee.

May 17, 1888

Appeal from chancery court, Shelby county; W. W. McDOWELL Chancellor.

Bill in chancery by A. P. Curry against Marcus J. Wright and the sureties on his official bond for the fees and emoluments of the office of sheriff, to which the plaintiff had been duly elected, but which had been usurped by said Wright. Judgment against the principal and sureties for $50,000, the penalty of the bond; from which J. S. Bailey, one of the sureties appealed.

Turley & Wright, for appellant.

W. M Randolph, for appellee.

LURTON J.

This case is here upon the appeal of J. S. Bailey, one of the sureties upon two of the official bonds executed by M. J Wright, while sheriff de facto of Shelby county, and against whom a judgment has been rendered for $50,000 in favor of A. P. Curry, who was wrongfully deprived of the office by the intrusion of Wright. This judgment is for damages alleged to have been sustained by the exclusion of the de jure officer from the office to which this court at a former term held him to have been lawfully elected. State v. Wright, 10 Hiesk. 237. The controversy is as to whether the sureties on the official bond of an officer de facto are liable to the officer de jure, upon his recovery of the office, for the fees, salary, or other emoluments of the office which were received by the intruder while exercising the functions of the office. At the common law the remedy against a usurper of an office seems to have been by a proceeding called "assise," and the suit to have been sustained by analogy to proceedings for the recovery of possession of lands. Bac. Abr. ""Assise," "Office." As remarked by CAMPBELL, J.: "So far as this analogy holds, it would not permit any deduction from the recovery of damages based on personal services of the disseizor, or on the outside profits of the disseizee." People v. Miller, 24 Mich. 458. The books are full of cases involving the question of the damages which the excluded officer may recover from the intruder. These cases have all been either actions to recover from the municipality the salary withheld during such exclusion, or to recover damages from the usurper for such wrongful exclusion, and in all such cases the controversy has been as to the measure of damages. People v. Miller, 24 Mich. 458, 9 Amer. Rep. 131; U. S. v. Addison, 6 Wall. 291; Fitzsimmons v. City of Brooklyn, 102, N.Y. 536, 7 N.E. 787; Mayfield v. Moore, 53 Ill. 428, 5 Amer. Rep. 52.

In the case of U. S. v. Addison, the contested office being that of mayor of Georgetown, D. C., it was held that the measure of damages was the salary received by the defendant during his occupancy of the office; and that in such a case there should be no deduction by reason of the failure of the plaintiff to seek other employment while excluded. So, in the case of People v. Miller, the de jure county treasurer was held entitled to recover the gross salary paid to the intruder, all expenses of the office having been paid by the county. In the case of Mayfield v. Moore it was held that the measure of damages was the fees and emoluments of the office received by the intruder, after deducting reasonable expenses in earning them. This was a contested sheriff's case. The court, as to the measure of damages, saying: ""This being an equitable action, it should be governed, in this respect, by the same rules that would obtain had this been a bill for an account, instead of an action for money had and received. He should have only a reasonable allowance for the necessary expenses in earning the fees and emoluments. Had he intruded without pretense of legal right, then a different rule would no doubt have been applied." This court, upon a former hearing of this case, upon the appeal of Curry fixing basis of account, declined to lay down any rule as to the measure of damages in such cases; only deciding that certain fees...