Grant v. McLester

By the Court. Nisbet, J. delivering the opinion. [1.] By Statute, (5 and 6 Edw. 6, ch. 16, §§2, 3,) among other things, it is enacted, that all agreements for the sale or deputation of any office “ which concerns or touches any clerkship to be occupied in any Court of Record wherein justice is tobe administered,” shall he void. The Act of 49 Geo. III, in its tenth and eleventh sections, except from the operation of the Statute of Edward, lawful deputations and annual payments out of the fees, to any person formerly holding the office. Chitty on Contr. 720, 721. I see no reason why the Statute of Edward should not be in force in this State. The Statute of George is not, because, since the era of our independence; but our own laws authorize the appointment of a Deputy Clerk of the Inferior Court. This authority is equivalent to the exception stated in the §§10 and 11 of the Statute of Geo. III. The Act of Edward is still applicable to illegal sales of a clerkship ; it is applicable to this case. The objection to this contract is not that it is founded on a deputation, but upon a sale of the office contrary to law and public policy. Under these English Statutes, it has been held, that if the profits of an office are uncertain, arising from fees, (which is the case as to the Clerkship of the Inferior Court,) and the principal make a deputation, reserving a sum certain out of the fees [555] and profits of the office, it is good ; but if the reservation or agreement is not to pay out of the profits, but to pay generally a sum certain, which must be paid at all events, it is void. Godolphin vs. Tudor, 2 Salk. 468. Greville vs. Atkinson, 9 B. & C. 462. 4 Man. & R. 372. Chitty on Cont. 721. According to this rule, how-stands this easel Takeit as most strongly made out by the evidence of the plaintiff himself, who was examined under our Statute. He testifies, “ that he was Clerk of the Inferior Court of Muscogee County, and appointed the defendant his Deputy; that he exhibited to him a schedule of the cases pending and undisposed of in the Inferior Court, and upon which costs had accrued to the amount of one thousand or eleven hundred dollars, and upon which further cost was to accrue to an uncertain amount, and on the accrual of which, further clerical services were to be rendered. Upon this exhibition of cost and cases, it was agreed that he would appoint the defendant his Deputy, and give him for his compensation, said costs, which had and which were to accrue, he paying, or securing to be paid to him, out of, or as part of the said costs, the sum of five hundred dollars, to secure which, the notes sued on were given.” The substance of which is, that the defendant was to take the office and its profits as Deputy,in consideration of which he undertook to pay plaintiff five hundred dollars out of the profits, and to secure which sum, he gave his notes. Although it seems to have been expressed in the agreement between these parties, that the five hundred dollars were to come out. of the profits, yet the notes were given to secure it. The plaintiff did not rely upon the profits for his five hundred dollars, or upon the liability of the defendant to him, as trustee for that sum received to his use out of the profits, but he relied upon the defendant’s express stipulation to make good to him that sum. What is this but a sale of the office for a sum certain tobe paid, at all events, by his Deputy. The agreement indicates a well devised, but still insufficient attempt to evade the Statute. It is as much at war with its policy, as if nothing had been said about payment out of the profits, and it seems to me that the Court ought to have so instructed the Jury. Contracts for the sale of public offices are void at Common Law, as being opposed to public policy, and may be resisted, although not embraced in any Statute ; particularly, it would seem to me, such as relate to offices appertaining to or connected with the administration of justice. The public have a right to the ser [556] vices and responsibility of the selected officer; and where a deputation is allowed, as here, yet it must be made under such circumstances as retain the responsibility of the principal, and present no inducement to extortion, and no temptations to corruption. Chitty on Contracts, 672. Richardson vs. Mclish, 2 Bing. 247. 9 Mod. 435. Haralson vs. Licking, 2 Car. Law R. 66. 3 Marsh. 433. 2 Bibb, 453. 5 N. Hamp. 196. 2 Ibid, 517. 6 Ibid, 183. 9 Wend. 175. By the contract, as proven by the plaintiff, he was to be paid out of the costs which had accrued, and out of the costs which were to accrue ; and the defendant became the purchaser of not only costs due, and which might be considered as legally vendible, but of costs yet to accrue on the cases in office and in his hands for management. His notes, so far as the accruing costs are concerned, were founded on an illegal consideration, and void in part — void as to the whole. Under these circumstances, the contract is not free of suspicion ; it is, in fact, opposed to the policy of the law. I can, upon the whole, look upon it in no light but as a purchase by the defendant of an office, for a sum certain on his personal responsibility, and as such, void upon authority and principle ; and however unjustifiable his defence upon honorable principles, he is allowed it, as an agent of the law, to maintain its policy. Let the judgment be reversed.