
    *O’Rear’s Adm’rs v. Kiger.
    March, 1840,
    Richmond.
    (Before a special court of appeals, consisting' of Brooke, judge of the court of appeals, and Suott. union and At.lex, judges oi the general court.)
    Contracts — Buying and Selling Office — Case at Bar.— O'R. a justice of the peace, expecting to be appointed to the shrievalty of his county at a fnture time, covenants, for a sum in gross to be paid him by K. to appoint K. his deputy of the whole office, when and in case he himself shall be appointed sheriff in the order in which he stands on the list of justices for the county; he is afterwards so appointed; and then refuses to appoint K. his deputy according to the covenant: in an action by K. against O’R. for breach of the covenant, Held, the contract was contrary to the statute against buying and selling offices, and therefore void.
    Benjamin O’Rear, a justice of the peace of Frederick, expecting to be appointed in his turn to the shrievalty of that county, entered into a covenant with George Kiger to sell the deputation of that office to him, when and in case he himself should be appointed to it. The covenant was in the following words:
    “Articles of agreement made and entered into this 2d day of November 1818, between Benjamin O’Rear of the one part and George Kiger of the other part, witnesseth: That the said O’Rear, for and in consideration of 1333 dollars 33 cents to be paid as hereinafter mentioned by the said Kiger, hereby covenants for himself and his heirs, that he will appoint the said Kiger to the office of his deputy, as soon as the said O’Rear shall obtain the high sheriffalty for the county of Frederick, arid that the said Kiger shall have the privilege of appointing such associates in the office as deputy sheriff as the said Kiger shall think proper; and the said O’Rear further covenants, that the said Kiger shall continue his deputy during the whole of the said *0’Rear’s term; on the following conditions: the said Kiger is to pay the said O’Rear the sum of .£100. on the ISth day of the present month, the further sum of 500 dollars on the day on which the said Kiger shall be sworn in as deputy, and the remaining sum of 500 dollars in one year after the said Kiger shall be sworn in. The said O’Rear further covenants for himself and his heirs, that in case he shall not be appointed high sheriff, he will return to the said Kiger or his heirs, the aforesaid sum of .£100. on the day on which the said O’Rear would be appointed high sheriff in the order in which he now stands on the list of magistrates for this county; the said money to be returned on the day aforesaid without interest. The said Kiger further agrees, that he will procure ample security, both for the said O’Rear and himself, for executing the duties of the said office. For the true performance of the above contract, we bind ourselves, each to the other, in the penal sum of 1000 dollars. Witness our hands and seals &c.”
    Kiger brought an action against O’Rear for a breach of this covenant, in the circuit court of Frederick; pending which action O’Rear died, and it was revived against his administrators. The declaration, after setting out the covenant, alleged, in substance, that Kiger was prevented by the act and contrivance of O’Rear, from paying him, on the 15th November 1818, the ¿100. which he covenanted to pay him on that day, and that he tendered him that sum on the 16th November, but O’Rear refused to receive it; and then alleged, that O’Rear was afterwards, to wit, on the — day of-1819, appointed to the office of high sheriff of the county of Frederick, and obtained the said office in the order in which he stood on the list of magistrates for the county; and that on the day on which O’Rear and his deputies were qualified to the office, to wit, on the —■ day of-1819, and *when Kiger should have been sworn in, if he had been appointed deputy according to the terms of the covenant, Kiger was ready and offered to pay to O’Rear the sum of 500 dollars appointed by the covenant to be paid by Kiger on the day on which he should be sworn in as deputy, and was ready and offered to procure and give ample security, both for O’Rear and himself, for executing the duties of the office, but O’Rear refused to receive the said 500 dollars or to avail himself of the said security: and averring, that Kiger was ready and willing, and offered to O’Rear, to do and perform all things which by the covenant he was to do and perform on his part, and that O’Rear on his part refused to accept the proffered performance, the declaration assigned the breach of the covenant, that O’Rear did not and would not appoint Kiger his deputy in the office of sheriff. The administrators of O’Rear (against whom the action had been revived) put in a general demurrer to the declaration, and pleaded covenants performed, on which an issue was made up. The court overruled the demurrer. And upon the trial of the issue, the defendants demurred to the evidence. The jury found a verdict for the plaintiff for 5000, dollars damages, subject to the opinion of the court on the demurrer to evidence; upon which the court held, that the law was for the plaintiff, and gave him judgment for the damages assessed by the verdict. O’Rear’s administrators applied to this court for a supersedeas to the judgment; which was allowed.
    The cause was argued here, by R. C. Stanard and Lyons for the plaintiffs in error, and Leigh for the defendant.
    Many points arising both on the demurrer to the declaration and on the demurrer to the evidence, were debated at the bar; but the cause was decided on a single point, made by Stanard and Lyons; namely, *that, though a sale of the deputation of the office of sheriff, made by the sheriff after his appointment to the office, was valid according to the decision of this court in Sailing v. M’Kinney, 1 Leigh 42, yet a covenant by a justice of the peace for the sale of the deputation of the office of sheriff, prospectively, when and in case he should, at a future time, be appointed to it, was contrary to the statute against buying and selling offices, criminal and void. They referred to the statute 1 Rev. Code, ch. 145, p. 559, and maintained, that such a prospective executory contract as this between O’Rear and Kiger, for the sale of the office of sheriff, which O’Rear might or might not obtain at a future and uncertain time, was condemned by the three first sections of the statute, and was not protected by the proviso contained in the fourth section, “that nothing in the act contained should be so construed, as to prohibit the appointment, qualification and acting of any deputy clerk, or deputy sheriff, who should be employed to assist their principals in the execution of their respective offices.’’ For, they said, the proviso excepted out of the inhibition of the statute the deputation only of actually existing offices. And the sanction of such a contract as this would be of most pernicious consequence; since the sheriff, after his appointment to office, would have the strongest inducement to appoint the person to whom he had contracted to sell the office, his deputy, though he should, in the interval between the contract and the appointment, have proved wholly unworthy’ of the trust, and so avoid an action on his covenant, and damages for the breach of it.
    Leigh said, the counsel for the appellant,
    in Sailing v. M’Kinney', had contended, that the true effect of the proviso in the statute was to except out of the previous inhibition, not the sale of the office of deputy sheriff, but only the fair deputation of the office, which had ^always been held legal in the construction of the english statutes in pari materia; Gulli-ford v. De Cardonell, 2 Salk. 466; Godolphin v. Tudor, Id. 468; Willes575; S. C. in note. But this court held, that the effect of the proviso was to except the deputation of the office of sheriff wholly out of the statute; so that though, in that case, there was unquestionably a sale of the office, the contract was held legal; and to shew that this was the precise point there decided, he referred to the opinions of the judges. And in that case, the contract was for the sale of the office of deputy sheriff, not only for the first year for which M’Kinney had been appointed, but for the second year also, for which he had not yet been, but for which he expected to be, appointed: in regard to the second year of the office, that was, like this, a prospective executory contract for the deputation of the office, when and in case the principal should be appointed to it; and the prospective executory contract was held good; for it was under the contract for the deputation of the second year of the office that the case arose. It was too late, now, to depart from the construction put on the statute in Sailing v. M’Kinney ; almost all the contracts between sheriffs and their deputies, made since that adjudication, had been regulated by it; and if the law as there declared, ought to be altered, the alteration should be made by the legislature. He said, he could see no distinction, in principle, between the case of Sailing v. M’Kinney and this case. If a contract for the sale of the deputation of the office of sheriff actually existing, was not prohibited by the statute, and was lawful and valid, he could see no reason why a contract for the sale of such an office when it should be obtained in future, should be void. As to the mischievous consequences which had been suggested, he said, it was as much the duty of the sheriff to remove from office a deputy whom he had actually appointed, in case he should prove unworthy of the trust, as it was his duty not to appoint a ^deputy who was unworthy; and the inducement of the sheriff to appoint an unworthy deputy, in order to avoid ail action on his covenant for the deputation of the office, and damages for the breach of it, was not stronger than the inducement to continue a deputy in office whom he had appointed, after he had proved himself unworthy of trust, in order to avoid an action for breach of his covenant for the deputation of the office during the whole term. He thought it probable, that at least half of the deputations of the office of sheriff throughout the commonwealth, had been made under prospective contracts, like that in the case before the court, fur deputations of the office when the principals should be appointed in future. [Scott, J., said, that in his part of the country, the practice was general, if not universal.] If such prospective contracts were criminal and void ab initio, the appointment of deputies in pursuance of them, after the principals had received their appointments, could not cure the original vice which annulled the contracts; and the sheriffs, in all such cases, would be deprived of all remedj' against their deputies and their sureties, for neglect or malfeasance in office.
    
      
      806 monographic note on "Contracts” appended to Enders v. Board of Public Works, 1 Gratt. 364.
    
   BROOKS, J.,

delivered the opinion of the court, that the contract set out in the declaration did not come within the proviso contained in the fourth section of the statute against buying and selling offices, but was plainly within the three first sections of that statute, and was therefore illegal and void: and that, therefore, the judgment should be reversed, and judgment entered for the defendants on the demurrer to the declaration.

SCOTT, J., dissented. 
      
       The reporter understood, that the court did not mean to disturb the authority of Salling v. M’Kinney, 1 Leigh 42.
      
     