#### *Hoge v. Trigg.

Argued, Monday, January 17th, 1814.

1. Deputy Sheriff — Removal from Office by Sheriff.* — A deputy sheriff holds his office during the pleasure of his principal, and may by him be removed from office, notwithstanding he has given bond and security to indemnify the principal in case of his neglect or misconduct, and it was agreed between *them*that he should be the deputy, for the time that the sheriff should continue in office under his then commission; but the deputy is not deprived thereby of his remedy against the principal, for an undue exercise of such power of removal.

2. Same — Same—Suit Therefor. — If the deputy sue the sheriff, for turning him out of office in violation of his contract; a plea, that the plaintiff had been guilty of a certain misfeasance and other specified improprieties in his office, from which he was therefore dismissed by the defendant, is a full answer to the declaration.

3. Same — Contract with Sheriff — Validity—Quaere, whether a contract between a sheriff and his deputy, that the latter shall perform all the duties of the sheriffalty, receive all the fees and emoluments arising therefrom, and pay to the former a certain sum of money, be not void under the act of assembly against buying and selling of offices ?

See Rev. Code, 1st vol. p. 67; Noel v. Fisher, 3 Call, 215; Godolphin v. Tudor, 2 Salk. 468; and 6 Mod. 234; also Gulliford v. De Cardonel, 2 Salk. 466.

An action on the case was brought by James Hoge against Daniel Trigg, in the Superior Court of law for Montgomery County. The declaration charged, for that the plaintiff and defendant on the-day of November 1806, at the County of Montgomery aforesaid, and within the jurisdiction, &c. had and held a conversation together, and it was mutually agreed between the said plaintiff and defendant, as he *65the said defendant was then commissioned high sheriff of the County of Montgomery aforesaid, and had entered into the bonds, and taken the oaths prescribed by law, as the high sheriff of the said county, that the said plaintiff should qualify and become the deputy of the said defendant, for the time that he the said defendant should continue in office under his then commission ; and it was agreed that the said plaintiff should have and receive all the profits, fees and emoluments that should arise from the said sheriffalty, on the north side of the great waggon road leading from Wythe Court house by Ingle’s Ferry to Richmond ; that being the part of the said county in which the said plaintiff was to act as deputy sheriff ; and for the fees and profits of the said sheriffalty, during the continuance of the said defendant in office under his then commission, growing or arising out of the district above described, the said plaintiff agreed to pay the said defendant the sum of one hundred dollars, and was also to execute to the said defendant bond with security to attend to the sheriffing business in the bounds of the district above mentioned. or to indemnify the said defendant in *case of neglect or misconduct: and the said plaintiff avers that, in consequence of the agreement aforesaid, he did, immediately, at the November court held for the said County of Montgomery in 1806, qualify as deputy sheriff under the said defendant agreeably to the contract entered into with the said defendant, and after-wards, agreeably to the contract between the said parties, executed bond with security to the said defendant, of the tenor and meaning above set forth, with which bond and security the said defendant was well satisfied: and the said plaintiff further avers, that he acted as deputy sheriff from November 1806 to June 1807, when the sheriffalty in the said plaintiff’s district was likely to become very profitable, as several large executions were about that time to be put into the hands of him the said plaintiff to collect, and from other demands which the said plaintiff had then in his hands to collect as sheriff. And the said plaintiff avers, that the said defendant, entirely regardless of his promises and agreement entered into with the said plaintiff, did, contrary to the said agreement, at the June County Court held for the County of Montgomery aforesaid, without the consent of the said plaintiff, come into court and have an order made discontinuing the said plaintiff in his office of deputy sheriff, notwithstanding the said plaintiff was ready to pay unto the said defendant the said sum of money that he was bound to do whenever legally thereunto required. The plaintiff therefore says, that, in consequence of the said defendant not complying with his said agreement entered into with the plaintiff, and in consequence of his discontinuing the said plaintiff as his deputy sheriff, he is injured and has sustained damages to the amount of two thousand dollars, and therefore he brings suit.”

The defendant pleaded not guilty ; and, for further plea, said, “that at the-day of November 1806, stated in the declaration, it was agreed that the plaintiff should hold, occupy and enjoy the office of Deputy Sheriff,

only on condition that he should give to the defendant sufficient security to indemnify him against all possible injuries which he might sustain on account of the plaintiff’s conduct in his official *cha.racter, to be approved by the defendant; and the said defendant avers that the plaintiff did not give such security as stipulated ; therefore, he, on the •-day of June 1807, in consequence thereof, dismissed him from the office of Deputy Sheriff, the defendant being then and there principal sheriff of Montgomery county : and this he is ready to verify *-r*wherefore he prays judgment. — And, for further plea, he says that, on the --day of-1807, the.plaintiff left the county of Montgomery, and went to distant parts ; at which time, and during the absence of the said' plaintiff, the business appertaining to the office of sheriff in the district of the plaintiff, then very important and pressing, was wholly neglected ; wherefore the said defendant, in consequence thereof, on the-day of June 1807, while the plaintiff was absent from his duty, dismissed him from the said office of deputy sheriff; and this he is ready to verify, wherefore he prays judgment, &c. And, for further plea, he says, that between the-day of November 1806, in the declaration mentioned, and the day on which he dismissed the plaintiff from the office of deputy sheriff as aforesaid, he, 1 he plaintiff, committed divers acts of mal-feasance and impropriety in his office ; to wit, in charging the tithables of the county of Montgomery, their portions of the county levy for the year 180-, sixty cents each, whereas, by the order of the county court of Montgomery, apportioning the county levy, a less sum was demandable ; — in demanding from persons, to wit, from Gordon Cloyd, George Vineyard, Henry Patton, and others, having claims to be paid out of the poor rates and county levy, large discounts, and refusing to make them payment unless such discounts were made ; — in appropriating the public money to private speciilation :— and the defendant, knowing of these acts, did, on the ---day of June 1807, dismiss the plaintiff from the office aforesaid, in consequence thereof : and this he is ready to verify ; wherefore he prays judgment, &c.”

The plaintiff replied to the second plea, “that he did give to the defendant security such as he approved and received, to indemnify him from all possible injuries that he might ^sustain on account of the plaintiff’s conduct, in his official character as a deputy sheriff —and to the third plea, “that although he was absent from the county of Montgomery, from the --day of May 1807, until the --• day of June 1807, yet that he was absent on business appertaining to the said defendant’s office of sheriff for the county of Montgomery, and went to the city of Richmond at the special request of the said defendant, and, while absent, did the business appertaining to the said defendant’s office of sheriff as aforesaid, as well as private business of his own ; and that he the said plaintiff did return to the county of Montgomery aforesaid, on the •--day of June 1807, prepared to perform all the duties appertaining to his said office of deputy sheriff, which was in due time to do all the important business apper*66taining to the said office of sheriff in the said plaintiff’s district; but that the said plaintiff had, previous to that time, to wit, at a court held for the said county of Montgomery, on the-day of June 1807, dismissed the said plaintiff from his office of deputy sheriff ; and this the said plaintiff is ready to verify; wherefore he prays the judgment of the court, &c. ” To the 4th plea he demurred, and stated, as causes of demurrer, first, “that the matter of said plea is foreign from, and in no manner connected with the agreement entered into between the plaintiff and defendant, and if true, would not be a sufficient bar to the plaintiff’s action ; — secondly, if the plaintiff had violated his agreement entered into with the said defendant, that the defendant had no right -to dismiss him from his office of deputy sheriff, but, if injured thereby, he might have resorted to the said plaintiff for his redress on the contract, and the bond executed to the said defendant in consequence thereof; — and thirdly, that the said plea is not responsive to the declaration.”

The defendant joined issues in fact and law, to the plaintiff’s replications and demurrer ; whereupon the demurrer being argued, “it seemed to the court here that the said fourth plea is sufficient in law to bar the plaintiff’s action. It was therefore considered that the said demurrer be over-ruled, *that the plaintiff take nothing,” &c.; from which judgment he appealed.

Wirt for the appellant.

Leigh for the appellee.

Tuesday, January 25th, 1814,

*

See monographic *note*on “Sheriffs and Constables” appended to Goode v. Galt, Gilm. 152.

the president pronounced the court’s opinion.

' “The court is of opinion that the objection to the right of the high shériff to remove his deputy from office is neither to be sustained on the ground of authority or principle, so far as there is an analogy between offices of this nature in England. The English decisions are conclusive. On the ground of principle, the court has no doubt. The deputy is appointed by his principal ad libitum : he is responsible for all his acts, and takes the bond to himself, to secure him against that responsibility, and thereby makes the acts of his deputy his own. Nor is this an unreasonable, or unjust construction of therelation which exists between them. The deputy is not deprived, thereby, of his remedy against his principal, for an undue exercise of this power, if in violation of his contract.”

“As to the objection to thé plea of the defendant, this court is of opinion that the averment, that the plaintiff had been guilty of a misfeasance, and other improprieties in his office, is a full answer to the declaration, the gist of which is that the defendant had turned him out, or procured him to be turned out, of his office, without cause, and in violation of his contract ; and that the specifications in the plea of the particular instances of misfeasance, and of improper conduct in office, were for the benefit of the plaintiff ; as they gave notice of the facts intended to be proved in support of the averment.”

“The court, therefore, (waving for the present a decision of the objection to the validity of the contract set forth in the declaration,) is of opinion that the judgment be affirmed.”