Haralson v. Dickens, 5 N.C. 66, 2 Car. L. Rep. 66 (1815)

Jan. 1815 · Supreme Court of North Carolina

5 N.C. 66, 2 Car. L. Rep. 66

Haralson v. Dickens.

This was an action of covenant, founded upon certain articles of agreement, executed the 13th of November, 1811, whereby the defendant, who was Clerk of the County Court of Person, employed the plaintiff as his deputy, and authorised him to retain, for his services, “ one half the profits arising from the date of the contract,” which they calculate to be one hundred dollars; which the said Haralson promises, at every term, the sum of twenty-five dollars, to pay the said Dickens as Clerk of said county—also, one half of fees on marriage licences, said Dickens is entitled to—and agreed to between both parties.” The concluding clause of the agreement is as follows : “ And the said Haralson doth oblige himself to pay over to the said Dickens, as before mentioned, one half of the profits which may be collected, which is one hundred dollars a year, to be in four instalments, viz. twenty-five dollars every court in a year; also, one half of the fees collected on marriage licences.”

The Judge before whom the cause was tried,directed a non-suit, from which decision the plaintiff appealed to this court.

Norwood, for the defendant.

—This contract is rendered void by the statute of 6 Ed. VI. c. 16, which enacts, that all agreements, covenants, bonds or assurances for any of the public offices therein specified, or the deputation thereof, shall be void. Such contracts are void where a certain annual sum is reserved to the principal, though the profits amount to more than the sum reserved to be paid by the deputy. Mod. Ca. 234. A sum in gross cannot be reserved to the principal. Sal. 468.

Nash, for the plaintiff.

—The statute does not affect those contracts where the sum to be paid is reserved out of the profits of the office; for then, the principal only reserves part of that which was wholly his before. This is settled in Godolphin v. Tudor 6 Mod. 234; and in Culliford v. Codonny, 12 Mod. 90, the very point came in question, and it was held that a bond by a deputy to account for the profits he receives, and to pay his master one half of them, is not within the statute; for it is reasonable that the deputy should be paid for his trouble. In the case before the court the covenant is to pay half the profits, which amounted to one hundred dollars a year. But if this point should be adjudged against the plaintiff, he is at all events entitled to recover half the money received for marriage licences; that being, clearly, only a reservation of half the profits which have arisen from that source.

Norwood, in reply.

—The profits of this office were altogether uncertain. It was impossible to estimate them prospectively; yet the sum to be paid is fixed, so that whether twenty or two hundred pounds were received by the plaintiff, he was bound to pay over one hundred. If by the parties arbitrarily stating a certain sum as the profits, a sum in gross might be reserved, the provisions of the statute light easily be evaded. On this point, the reasoning of Lord Loughborough, in Garforth v. Ferson. 1 H. Bl. 331, is strong and conclusive. As to the claim for marriage licences, we resist it on the ground that if any of the conditions of a bond be void by statute, the whole bond is void. Willes 574.

Per Curiam.

—The plaintiff, in this case, brings his action to enforce an agreement by which he has undertaken to pay the defendant one hundred dollars per annum, in quarterly instalments, for five years, for the deputation of a clerk’s office; and it is recited in the articles, that this sum is one half the estimated profits. In the same contract it is agreed the defendant shall receive one half the fees of marriage licences during that period, and that the agreement is to continue for five years, unless sooner dissolved by death or consent.

It has been insisted on in the argument of the plaintiff’s counsel, that the plaintiff was only bound to pay one half the profits, and that the sum set forth was only by way of description, and therefore the case was not within the statute of Edward the 6th, against selling offices.

We are all, however, of opinion, that no such construction can be put on the agreement, and that in an action by the defendant against the plaintiff, he would not be allowed to shew what were the profits—that he has undertaken to pay a sum certain, not out of the profits, but at all events, and that, therefore, the case is clearly within the statute. As to the other ground contended for, that he ought to be permitted to recover for the loss of marriage licence fees, we think it altogether insupportable; because the statute having declared all contracts, bonds, agreements, &c. for the sale of the deputation of such an office absolutely void, no action can be supported upon either of them.

Wherefore, we are of opinion, the rule for a new trial should be discharged.