De Forest v. Brainerd

De Forest v. Brainerd. In the Court below, Jehu Brainerd, Plaintiff; Lockwood De Forest, Defendant. An alleara-tf i v. the j»1 ,1 uni,who v, , -he..⅞ a/i ami d til.’ .kien-d tine of h> ’ at „ nice s icciñ 1is i , i >-cdbv tb "' u wing previously appointed him, continued him in office at and after th A , weer. a sheriff and his deputy, that the latter shall pay the former a cei.o per annum in consideration of his appointment, is not illegal, HIS was an action of assumpsit. The declaration stated, that the plaintiff being sheriff of the county of New Haven, the defendant, on or about the first day of January, 1804, applied to him tobe appointed one of his deputies ; that the plaintiff accordingly appointed him, which appointment was approbated, by the County Court; and that the defendant, in consideration thereof, “ faithfully promised the plaintiff to pay him at and after “ the rate of three hundred dollars per annum for said ap- “ pointment, and that he would secure the same by notes at “ the end of each quarter, which notes should be made pay- “ able at the end of the year.” The action was brought in March, 1805. The defendant pleaded the general issue ; and the jury found a verdict for the plaintiff. On the trial it appeared, that the defendant was appointed by written deputation in June, 1801 ; and the plaintiff then proved, in support of his declaration, that “ he continued i( the defendant in said office of deputy-sheriff, in considera- “ tion of which, the defendant promised to pay the plaintiff at and after the rate of three hundred dollars a year.” The counsel for the defendant contended before the Court and jury, that this proof did not support the declaration ; and that the issue, therefore, ought to be found in favour of the defendant. The Court, however, charged the jury, that this proof did support the declaration. The counsel for the defendant also contended, that the promise alleged in the declaration did not lay any foundation for a recovery against the defendant, for that it was illegal, and against sound policy. The Court expressed a contrary opinion to the jury, and directed them to find for the plaintiff A bill of exceptions was filed to both parts of the charge. Daggett, and Milts, for the plaintiff in error, contended, 1. That the proof did not support the declaration. Here tney argued, that m all special assumpsits, the promise and consideration must be proved precisely as alleged. In support of this position, Kingy. Robinson, Harkin r. Cooke, Bul, M. Pri. 145, 147, 139, were cited. 2. That a sheriff cannot, upon principles of law, let out his office, or take a reward for a deputation. The authorities relied upon, in support of this position, were, Balt. Off Sher. 407. 1 Hawk. P. C. ch. 68. also eh. 67. Slackpole v. Earle, Parsons v. Thompson, and Godolphin v. Tudor. Jngersoll, and Smith, (of New Haven) for the defendant in error, contended 1. That the declaration was substantially proved. The continuation of the deputy in office from year to year, was the same in effect, as an appointment at the commencement of each year. 2. That the contract stated in the declaration was not a sale of office. The sheriff certainly did not part with his own office. He remained in as full possession of it after the appointment of De Forest as before ; nor was he at all restricted in the exercise of it. Nor was it an act of briberxj in the sheriff to stipulate with his deputy, as one of the terms of his appointment, for such a sum as would remunerate the former for the responsibility which he thereby took upon himself, with regard to the official conduct of the latter. The sheriff in England has the power of making his own terms with his deputies. Such a power has always been exercised by the several sheriffs in this state, with the knowledge, and the implied approbation, of that branch of the government, by whom they are appointed, I he approbation oi the County Court is, by statute, rendered otcessarv. rwfi. Cro. Eliz. 79. 4 Term. Rep. 314. 2 Wils. 133. 1 H. Bla. 322. 6 Mod. 264. The sheriffs, in Connecticut, are appointed by the Governor and Council,—the same persons of whom this Court is composed. M. [MAJORITY — By the Court,] By the Court, Hillhouse, Miller, and Austin, jissts, dissenting, The judgment was affirmed.