Lawlor v Alton

• Jurisdiction: Ireland
• Judgment Date: 24 November 1873
• Date: 24 November 1873
• Court: Queen's Bench Division (Ireland)

Q. Bench.

Before WHITESIDE, C. J., O'BRIEN and FITZGERALD, JJ.

LAWLOR

and

ALTON.

Boyter v. DodsworthENR 6 T. R. 681.

Crosbie v. Hurley Alc. & N. 431.

Vaux v. JefferenENR 2 Dyer, 114.

Cragg v. NorfolkENRENR 2 Lev. 108; S. C. 1 Mod. 122.

Howard v. WoodENR 2 Lev. 245.

Arris v. StukeleyENR 2 Mod. 260.

Millar v. TaylorENR 4 Burr. 2344.

Boyter v. DodsworthENR 6 T. R. 681.

Cragg v. NorfolkENRENR 1 Mod. 122; S. C. 2 Lev. 108.

Moses v. M'FarlaneENR 2 Burr. 1005.

Tozer v. ChildENR 7 E. & B. 377.

M'Cormack v. The Queen's University I. R. 1 Eq. 189.

Green v. ButtonENR 2 Cr. M. & R. 707.

Higgins v. O'DonnellUNKIR I. R. 4 C. L. 91.

Lumley v. GyeENR 2 E. & B. 216.

Exclusion from office Damages Money had and received Surgeon of County Infirmary.

160 THE HUSH REPORTS. [I. It, LA WLOR v. 'ALTON (1). Exclusion from office-Damages-Money had and received-Surgeon of County Infirmary. The Defendant, who had been illegally elected for the office of Surgeon of a County Infirmary, entered into the office, and, though cautioned, kept out the Plaintiff, who had been legally elected :-Held, (1) that the Plaintiff was enÂÂtitled to recover damages from the Defendant for so excluding him from the office : (2) that the Plaintiff, as he had not actually discharged the duties of the office, though he had offered and was ready to do so, was not entitled to recover, as money had and received, the salary which the Defendant had reÂÂceived under grand jury presentment. CASE stated under section 92 of the Common Law Procedure Act, 1853. The Plaintiff and the Defendant had been candidates for the office of Surgeon to the Infirmary of the County of Kerry, and the Governors of that Institution elected the Defendant on the 28th of July, 1871 ; but the Plaintiff, who disputed the legality of the election and the qualification of his opponent, tendered his services upon the following day, when he was excluded, and inÂÂformed that the Defendant had already entered upon the duties of the office. The Plaintiff on the same day served the Defendant with notice, cautioning him that he had not the requisite qualifiÂÂcations, and that he had been illegally elected ; on a subsequent day he again tendered his services with the like result ; and on the 26th of January, 1872, he obtained a conditional order for a quo warranto against the Defendant. At the Spring Assizes, 1872, the grand jury of the county made a presentment for the sum of 47 to be paid to the DefendÂÂant as salary for his services as surgeon to the Infirmary ; the fiating of which the Plaintiff, as a ratepayer, opposed, and, at the suggestion of the Judge, the Defendant signed an undertaking that, in case the presentment should then be fiated, he would abide (1) Before WHITESIDE, C. J., O'BRIEN and FITZGERALD, VOL. VIII.] COMMON LAW SERIES. by such order as to the disposition or refunding of the 47 as should be made upon or after the hearing of the application then pending in the Queen's Bench. The conditional order for a quo warranto having been made absolute on the 6th May, 1872, the Defendant on the 11th May, 1872, withdrew from the office, whereupon the Plaintiff entered into it ; and at the Summer Assizes, 1872, the Grand Jury presented...