Becker vs. Ten Eyck, 6 Paige Ch. 68

The Chancellor. I can see no legal objection to the principles upon which this decree is based, if the pleadings and the facts in the case can justify the court in arriving at the conclusion that the complainant was acting as a mere agent of the defendant, in discharging the duties of under sheriff and jailer, and in supplying the jail; and that he was to be compensated for his services upon the principle of a quantum meruit merely.

By the statute which was in force when this controversy originated, and which does not appear to have been altered in this respect in the recent revision of the laws, the sheriffs of the several counties in this state, except in the city and county of New-York are the keepers of the county jails, for the confinement of prisoners upon criminal as well as on civil process ; and they are legally entitled to all the fees and perquisites belonging to such office. (1 R. L. 422, § 7,380, § 75, 2 R.

S. 754, § 1.) The expression in the act of 1813, that “ the sheriffs respectively, shall put in such keepers for whom they will answer,” does not render it imperative upon the sheriff to appoint any individual to the office of keeper of the jail, but merely that the sheriff shall be answerable for the acts of those to whom he entrusts the offices and duties of deputy keepers under him. Or, in the language of the revised statutes, that the several sheriffs may appoint keepers of such jails and prisons, for whose acts they shall be responsible.

The sheriff, therefore, may keep the prison in person, or he may employ so many deputy keepers under him as he may think fit; and may allow them such compensation for their services as may be agreed upon between him and them, either by way of salary or by allowing them the whole or a portion of the perquisites to which he is entitled as the principal keeper of the county jail.

The complainant, in this case was but a deputy of the sheriff in the keeping of the jail, as he was, in the character of under sheriff, a general deputy in the service of writs and other process ; and it was as competent for the sheriff to contract with him for the discharge of the duties of the one trust as the other for a specific compensation, or for a reasonable proportion of the fees and emoluments arising from the performance of such duties. The act of the 7th of Februaiy 1788, against buying and selling of offices, (1 R.

L. of 1813, p. 109,) was only a reenactment of the provisions of the statute 5th and 6th, Edward 6th,

chapter 16th, on the same subject; under which statute it has been repeatedly decided that where the duties of an office can be discharged by deputy the principal may agree with his deputy to allow him a fixed compensation for his services, or that the deputy shall permit the principal to retain a certain proportion of the profits of the office, (Welch v. Baden, 3 Keb. 717 ; Gulliford v. DeCardonell, 2 Salk. 466, Com. Rep. 1 S. C.; Ballantine v. Irwin, Fort. Rep. 368 : Machen v. Stanyon, 1 Bro. P. C.

Toml. ed. 133.) But an agreement of a deputy to allow to his principal a sum in gross, not payable out of the profits of the office, and which may therefore exceed such profits, is a sale of the deputation, and a violation of the statute. This was so held, in the case of Godolphin v. Tudor, (2 Salk. 468 ; Willes’ Rep. 575 n.) by the court of Kings Bench in England, in the reign of Queen Anne ; and the judgment was afterwards affirmed in the house of Lords. (1 Bro. P. C. Toml. ed. 135.) That case was three times argued in the court of Kings Bench, and may therefore be considered as a leading case on this subject.

It was there settled that if an officer has an annual salary, or other profits amounting to a certain sum yearly, a deputation of such office reserving to the principal out of it, a sum not exceeding the certain profits, is not a sale of the office, or of the deputation, contraiy to the statute, So if a deputy be appointed to an office consisting of uncertain profits, paying any sum whatever out of such profits, the deputation and contract for the payment are good, because the deputy is to pay out of the profits only, and cannot be charged for more than he receives.

But if an office consisting of uncertain fees be granted to a deputy, together with all its fees, reserving a certain sum to be paid at all events, it is a sale of the office, and not a grant of a deputation reserving a portion of the profits; and an agreement to pay such sum is void by the statute. (See also Garforth v. Feron, 1 Hen. Bl. Rep. 328 ; Noel v. Fisher, 3 Call’s Rep. 215 ; and Salling v.

McKinney, 1 Leigh’s Rep. 42.) The cases to which I have referred, all go upoh the principle that the sheriff or other officer making the deputation is legally entitled to the fees or profits; and that the deputy is only entitled to such parts thereof, or to such other compensation, as the person appointing him thinks proper to agree to give him for discharging the duties of the office as such deputy. But there is another class of cases in which the deputy is by law entitled to certain fees or perquisites in virtue of his character of deputy merely.

In cases or that kind, an agreement by the deputy to give to the officer appointing him any portion or share of the fees or perquisites which legally belong to the deputy as such, is a purchase of the deputation, and a direct violation of the statute. The case of Tappan v. Brown (9 Wend. Rep. 175,) which was relied upon by the appellant’s counsel on the argument, was a case of this description, The statute in that case, gave to the deputy as such, a certain share of the fees for the inspection of flour; to which share the principal inspector had no legal right or claim.

The agreement of the deputy, therefore, to accept a sum in gross which was far less than his legal share of the inspection fees, and to let the officer appointing him retain the residue, was in substance an agreement to purchase the deputation, and to give to the officer appointing him a portion of the legal fees of the deputy as a consideration of such purchase; and was a palpavioiati0n of the statute.

And in the state of Massachusetts, where the deputies of the sheriff are by law entitled to three-fourths of the fees upon the writs and other process executed by them, a bond from the deputy to the sheriff to secure to the latter the payment of more than twenty five per cent upon the amount of such fees, was very properly held to be illegal and void. (Farrar v. Barton, 5 Mass.

Rep. 395.) The decree of the vice chancellor, in this case, proceeds upon the ground that there was no agreement between the parties as to the keeping and supply of the jail and the fees and profits of that situation; that the complainant must therefore have acted merely as the agent of the sheriff, and that he is to account as such. 1 am satisfied, however, from the pleadings and proofs, that such was not the understanding of the parties.

The answer of the defendant, which is responsive to the bill in this respect, states explicitly that it was agreed between him and the complainant, before the appointment of the latter to the offices of under sheriff and jailor, that he should give to the defendant one half of the fees and perquisites arising from such appointment. As there is no evidence whatever to contradict this part of the answer, it is not only evidence that there was an agreement on the subject between the parties, but also of the express terms of that agreement.

The account between the parties, therefore, must be taken upon the basis of that agreement. I think also, the evidence shows, very satisfactorily that the complainant in buying wood and provisions &c., for the use of the jail purchased on his own account and not as the agent of the defendant Ten Eyck; and that the several persons from whom the complainant obtained those supplies had no legal claim upon the sheriff for payment.

The only perquisites, therefore, which could arise from the furnishing of the jail must be the difference in value between the diet furnished to the prisoners and fuel and lights, &c., furnished for the jail, and the amount actually allowed by the supervisors therefor. Whatever that difference may be the defendant is entitled to the one half thereof under this agreement. He is also entitled to one half of the fees allowed by law for receiving and discharging prisoners, and one half of the fees of transporting the two prisoners to the House of Refuge.

And if the defendant has furnished any thing for the use of the jail which has been allowed in these annual accounts* by the supervisors, it should be credited-to him in the taking of the account in this cause. As the appointment of under sheriff and jailor was made at the same time and under the same agreement, it is proper that the account of the fees and perquisites of both situations should be taken together ; so that the fund in controversy may be distributed according to the equitable rights of the parties.

And there is no doubt that a sufficient foundation is laid for such a decree in the pleadings in this cause, and that the- filing of a cross bill would be a useless proceeding.

The decree of the vice chancellor must be reversed or modified, without costs to either party, so as to declare that the defendant is entitled to the one half of the fees and perquisites of the offices or situations of under sheriff and jailor; and that the complainant is entitled to the other half, during the three years ; and to direct a reference to a master to take and state an account between the parties upon the principles above suggested ; reserving the question of costs, except as to the costs on this appeal, and all other questions and directions, until the coming in of the report.