ERROR to the Supreme Court of the District of Columbia, the case being thus:

The charter of Georgetown provides that on the fourth Monday of February in each two years, the citizens shall elect a mayor, 'to continue in office two years and until a successor is duly elected.' The person having the greatest number of votes is to be declared elected; and in the event of an equal number of votes being given to two or more candidates, two council-boards, of which the corporation is composed, are to elect from the persons having such equal number.

With this charter in force, Crawford, being in 1859 mayor of the city, and then duly in office, was in that year a candidate for re-election. His opposing candidate was one Addison. The electors having voted on the election day, the judges of election returned Crawford as the person elected. He accordingly presented himself to the city councils, and offered to take the usual oath. They, however, on a count made by themselves of the vote, declared that Addison was really elected. He and not Crawford was accordingly sworn into office and entered upon the duties of mayor. Crawford then proceeded by quo warranto in the Federal court of the District, to test Addison's right to the place; the proceeding being in the usual form of one by the United States at the relation of the party aggrieved; in this instance Crawford. On this proceeding the jury brought in a verdict that 'the votes received by each candidate make the vote a tie.' The court, with the assent of Addison's attorney, refused to receive the verdict, and having directed the jury to return to their room and again consider of their verdict, they brought in a new verdict, on which a judgment of ouster was given. To review this judgment Addison took a writ of error from this court, giving a bond in $3000. The bond, which was to 'the United States of America,' recited that the Circuit Court for the District in a suit of the United States at the relation of Crawford, had lately adjudged that Addison should not intermeddle with the office, privileges, franchises, &c., of mayor, and that he 'be taken to satisfy the United States for his usurpation thereof, and that the said Crawford, relator, recover against Addison the sum of $_____ for his costs.' And it bound Addison and his sureties, to 'prosecute the said writ of error with effect, and to answer all damages and costs if he shall fail to make his plea good.'

The writ of error having been held by the Court of the District to be a supersedeas of the judgment of ouster, Crawford applied to this court in 1859 for a mandamus on the Circuit Court to enforce it, notwithstanding the writ of error.1 The arguments of his counsel in this court were:

1st. That the matter in dispute being a office of personal confidence and trust, and not a thing capable of being bought, sold, or assigned,—it was not a thing which had a 'value' within the act, which gave this court jurisdiction only when the matter in dispute was of the value of $1000 or more, and hence that the writ ought to be dismissed.

2d. That the two years—or term of office—for which Crawford was elected, would run out before the case brought up by the writ of error could be passed on.

The court, however, considered that the office having a salary, the case did present a subject of 'value,' and that salary being $1000, of the requisite value. As to the other matter they said:

'The bond and security given on the writ of error cannot be regarded as an idle ceremony. It was designed as an indemnity to the defendant in error, should the plaintiff fail to prosecute with effect his writ.'

The mandamus was accordingly refused, and the writ of error suffered to stand, Addison in the meantime enjoying the mayoralty.

In January, 1861, however, the writ of error was dismissed, and on the 21st of that month—a large part of the term of office having at this time of course passed—Crawford got that possession of the mayoralty from which the writ of error had till now deprived him. He now brought suit on the writ of error bond in the name of the United States against Addison, the purpose being to recover the amount ($1104) received by Addison as salary from the date of the bond to the time when Crawford got the benefit of the judgment of ouster, a term as it appeared of one year one month and seven days, which he claimed as damages chargeable to the bond. The costs Addison had himself paid. The narr. alleged that Addison had not prosecuted his writ of error with effect, and that he did not answer all damages and costs, in that he had not paid Crawford, at whose relation the suit recited in the bond was brought, $1000 a year, for the year and more in which he Addison was enjoying the office, and which sum he, Crawford, would have had for his own use but for the suing out of the writ of error aforesaid.

On the trial the plaintiff requested the court to instruct the jury as a second instruction, that if they should find that during the time in which Addison acted as mayor he received the salary, and that he did not prosecute his writ of error with effect, then that the plaintiff was entitled to recover the amount so received, and interest on it—provided they should also find that Crawford was duly elected and qualified as mayor, and that he continued and was ready and willing to discharge his duties, and was only prevented from so doing by the interference of Addison, and by his assuming to exercise the functions of the office.

The court refused to give such instruction; assigning as a reason among others for the refusal, that there was no evidence in the case that the defendant by his interference had prevented the plaintiff from the exercise of the office.

Messrs. Carlisle and Brent, for Crawford, plaintiff in error:

Crawford's right to sue upon the bond in the way we now sue is settled by what was said by this court on the application for a mandamus. The court then settled also that the value of the mayoralty was its annual salary. All matter and question on it, then, are out of the way. As to the reason specified by the court below for refusing the second instruction asked, it is in the teeth of the evidence showing that the defendant, Addison, had interfered by exercising the duties of the relator's office, and by superseding the judgment of ouster by his writ of error bond.

Messrs. Bradley and Wills, contra:

1. The quo warranto was to try whether Addison had or had not usurped the office—not whether Crawford was entitled. The judgment was a judgment of ouster of Addison, not restoration of Crawford. Addison had therefore a right to his writ of error; and, if he failed on that writ, he was liable only for the costs. Those he has paid.

2 The councils had a right to look to the first finding of the jury, which indeed the court refused to receive as a verdict of a fact, but which, nevertheless, was a fact ascertained by the jury in a cause in which these two men were parties. This was one of the instruments of evidence upon which the duty of the councils to elect immediately arose.

3. From the day after the date of the bond, Addison held the office of mayor, not by the old, but by a new title, derived under the charter of the corporation—that is, by virtue of a new election by the city councils, authorized by the charter in case of a failure to elect by the popular vote in consequence of a tie vote. On this new element of the case, the court in the quo warranto proceeding pronounced no judgment, and in regard to it the judgment of ouster is irrelevant.

4. The instructions asked were erroneous:

i. Because they assumed that the salary of the office had a pecuniary value other than as 'a compensation for labor and services performed' in the discharge of the duties of that office, contrary to the law.2

ii. Because they assumed that the whole salary received by Addison after the date of the bond, was the measure of such damages; and not the actual damages to Crawford; that is, the profit of the office, if any; or the amount of the salary received by Addison, less the amount which Crawford did receive, or reasonably might have received for his services in some other branch of business during the same period of time. On this point the analogies of the law are decisive. In cases of breach of contract for wages, if the servant is illegally discharged, he is bound to seek other employment, so as to lessen the damages, and his right to recover the stipulated wages is subject to the right to deduct the wages which he could reasonably have earned during time asked by the remainder of the contract. In cases of breaches of contract for freight or lodgings, the claim is subject to be diminished by the amount of freight or rent received, or which might have been received by the exercise of reasonable diligence.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court as follows: