Douglass v. The State, on the relation of Wright. his actual loss, is the measure of damages. There was no attempt in this case to reduce the damages by showing that the relator might have procured other like employment for the time he was kept out of office, or some portion thereof, and therefore that question does not arise. Had the relator succeeded in getting the possession of the office, he would have been compelled to avail himself of the assistance of a clerk, for otherwise it could not be said that the sum named in the agreed statement of facts, was paid out for necessary clerk hire. The office of county auditor is mainly, if not wholly, ministerial, and if the entire duties cannot be performed by the incumbent, then he must provide the necessary aids to accomplish that end. United States v. Addison, 6 Wal. 291, cited by the court, is decided on correct legal principles, and, when properly understood, does not conflict with my views in the case at bar. It is correctly said, in that case, that "the rule which measures the damages upon a breach of contract for wages or for freight, or for the lease of buildings, has no application. In these cases the party aggrieved must seek other employment, or other articles for carriage, or other tenants, and the damages recovered will be the difference. between the amount stipulated and the amount actually received or paid. But no such rule can be applied to public offices of personal trust and confidence, the duties of which are not purely ministerial or clerical." The legal reason why no such rule can be applied in such cases is to be found in the principles settled in Costigan v. The Mohawk & Hudson R. R. Co., 2 Denio, 609, cited by the court. It is, that in actions on contracts of hire for services to be performed in a particular kind of employment or business, for a specified time and compensation, where the plaintiff has been unlawfully dismissed by the defendant, the latter may show in reduction of damages, that employment of the same general nature as that from which he has been dismissed, and to be carried on in the same locality, has been offered to the former and refused by him; but not a different kind of employment, or Douglass v. The State, on the relation of Wright. business to be conducted at another place. In the United States v. Addison, supra, the relator, Crawford, had been elected to the office of Mayor of Georgetown for the term of two years and until a successor should be duly elected. Of course this office involved a trust and confidence, the duties of which were not purely ministerial or clerical, and, in the very nature of things, there was no other employment of the same kind, to be carried on in the same locality, to be found. Glascock v. Lyons, 20 Ind. 1, cited in the opinion, does not hold, as I understand it, as stated by the judge who speaks for a majority of the court, that the "intruder cannot retain any part of the fees as a compensation for his labor." No such question was involved in the case. The simple question involved in that case was, whether the action "for money had and received" would lie by Glascock against Lyons, the latter having been commissioned and qualified, the former not having been commissioned. It had been urged that Glascock could not maintain the action "for money had and received" for the fees of the office, because he had never been in a situation to be entitled thereto, he never having been commissioned and qualified. This court attempt to answer that objection, and then say, "if the proposition is correct that he who is rightfully entitled to an office has a property in it, though not, perhaps, strictly in the commercial sense of that term, then we are not able to perceive how a mere intruder, who may perform the duties for a time, can, in good conscience, retain the fecs, &c., for such service. If he could, under such circumstances, be permitted to retain such fees, it would be on the ground that they were a remuneration for his labor, &c.; but that would not justify the retention of any sum over such mere remuneration; if justified to that amount, how could the case be distinguished from one where A. B. may, without a contract or request, express or implied, perform ordinary labor for C. D.? In the latter, it is well settled there is no right of action accrues to the laborer. How Douglass v. The State, on the Relation of Wright. could there in the former? If not, upon what principle can the labor be set up as a defense to an action for money received to which the plaintiff was entitled. We are now treating this case as resting upon the facts averred and by the demurrer admitted to be true, namely, that the plaintiff was duly elected and justly entitled to the office, but that the defendant had obtained the evidences of title thereto through deceit, falsehood and fraud-had intruded into the same and was usurping the duties thereof. Under these admitted facts, we are not able to perceive any good conscience there would be in permitting the defendant to retain anything over a bare compensation, nor, in view of the well established class of decisions in similar cases already adverted to, how he can retain any portion of said fees. If the facts are not as stated, issue should have been taken thereon." I have made this long extract for two purposes; first, to show that the assumption of the majority is without foundation; and secondly, to answer the dictum of the judge as to that class of cases where labor is performed without contract or request. For it seems to me that the whole argument in the case at bar, drawn from the fact that the action. for money had and received will lie in this class of cases, is founded on a false assumption. In the class of cases like the one at bar, the form of the action, if in assumpsit "for money had and received," confirms the authority of the wrong doer in the act of collecting the fees, and converts him into an authorized agent for this purpose. Douglass was a mere intruder; Wright was commissioned and quali fied and demanded the office; in such a case, the latter could collect the fees of the office as they accrued; and, according to some of the cases, even a payment to the intruder would not protect the payer from paying them to the rightful officer. The People v. Tieman, 30 Barb. 193; The People v. Smyth 28 Cal. 21. Now, if Wright, instead of bringing this action, had brought an action for "money had and received" against Douglass, for the fees collected by the latter, Douglass v. The State, on the Relation of Wright. it would have been a confirmation of his acts in the collection thereof. In Hunter v. Prinsep, 10 East, 378, Lord ELLENBOROUGH, C. J., says, "the plaintiff, having sued for the proceeds in this form of action for money had and received,' has, in virtue of his so suing, adopted and confirmed the act of the master, by which the goods were converted into money." Paley recognizes the same principle. See Dunlap's Paley's Agency, 173, and note (w) and the authorities there cited. The confirmation of an authorized act relates back and covers the entire act from the beginning. So, in the case put, Douglass would have been the authorized agent from the beginning in the collection of the fees due Wright. Now, in such a case, the rule is, "whatever an agent is entitled to deduct from the demand of his principal for advances or disbursements of any kind, may be given in evidence in an action brought against him, without pleading it, or giving notice of set-off. For the balance only is the debt." Dunlap's Paley's Agency, 124. But I cannot see what the fact that an action for "money had and received" will lie, can have to do with the measure of damages in this case. Nor does Douglass claim to retain one cent for his labor; he only claims to deduct the necessary expense in making and collecting the fees in question; and I know of no rule of law or of morals that would prevent him from having what he is so justly and equitably entitled to. The fact that he was a wrong doer does not deprive him of this right. All the relator can claim is to be placed in as good a condition as he would have been had he got possesion of the office. To my mind it is rather singular legal logic to say, that The People v. Smyth, supra, is in point in the case in judg ment, when, according to that case, Wright could now sue and recover the entire fees of the office from the parties against whom they were taxed, and the fact that they had paid them to Douglass would be no defense; and yet, the fact that Douglass had collected them without au Dequindre and Others v. Williams. thority would entitle Wright to damages against him for the full amount thereof. A. collects from B. one hundred dollars due C., without authority; C. could insist on payment from B., notwithstanding the unauthorized payment to A.; and yet an action for the wrongful act of A., in favor of C., according to this reasoning, must result in a judgment of one hundred dollars, although the act did not damage C. one cent. In such a case, it is true that C. could waive the wrong and sue A. for the money in an action for "money had and received," but in such a case A. would then become the authorized agent of C. S. K. Wolfe, J. E. McDonald, A. L. Roache, and E. M. McDonald, for appellant. W. Q. Gresham and T. C. Slaughter, for appellee. DEQUINDRE and Others v. WILLIAMS. STATUTE. Legislative Interpretation.—It is not ordinarily the function of the SAME. Probate Court.-The Probate Court, upon its organization under the SAME. Collateral Proceeding.-Where a proceeding in a court of superior jurisdiction is of such a character that upon final action the court should, from the nature of the case, ascertain whether it is such in fact that it has |