1836.

Van Wyck

V.

Seward.

Independent of the verdict in the former case, however, which I do not place much reliance upon, as the question of fraud was never, in fact, submitted to the consideration of the jury, I think the complainant has failed in showing that William Seward had an intention to defraud the complainant by this voluntary settlement of his property, which took place before it was ascertained that the judgment against Williain Seward, the younger, could not be collected out of the property upon which it was a lien. The object of the complainant in getting the assignment of the judgment against William Seward, the younger, was, unquestionably, for the purpose of controlling it in such a manner as to secure his own demand against the same party without a sacrifice. And I think the evidence shows, most conclusively, that the property upon which the assigned judgment was a lien, if sold for any thing like its fair cash value, would have been sufficient to satisfy the whole amount of that judgment. The complainant, perhaps, had the technical right to put up the property for sale upon the execution, and bid it in for a nominal sum if no bidders attended to run it up to its fair value, and then to hold William Seward, who had guaranteed the collection of the judgment, liable for the deficiency. But must we presume that William Seward anticipated that such a course of proceeding would have been adopted by the complainant; and hold his settlement of his property among the different members of his family who had claims upon his bounty, fraudulent for that reason? If there was ample property bound by the lien of the judgment to pay the debt, at the fair cash value, and the guarantor had no reason to believe he would be charged with any thing under his guaranty, that is sufficient to rebut all presumption of fraud. Under the circumstances of this case, I do not believe the complainant would have permitted a stranger to bid in the property bound by the assigned judgment at the amount due thereon; leaving his own subsequent judgment unpaid. The assignor, therefore, could not reasonably have anticipated the events which afterwards occurred.

Again; W. Seward, the elder, at the time he made the voluntary conveyance of the farm to his son, and settled a portion of his estate among his children, did not divest himself of the means of paying any probable loss which might accrue upon the judgment, even if he could reasonably have anticipated such a loss. The conveyance to the defendant, Philander Seward, of the farm, was made on the 16th of April, 1818, at which time his father still held and retained in his own hands the complainant's two bonds, one for $2000, payable in November, 1818, and the other for $902,75, payable in November, 1819. This was an ample fund to meet any possible loss which could arise upon the judgment, as these two bonds constituted the whole consideration of the assignment. It is not material to inquire what became of the money paid by the complainant upon the $2000 bond, in November, 1818, as there is no pretence that it came into the hands of any of the defendants in this suit. It is sufficient for them to show that the disposition which W. Seward made of his property among his children, in April, 1818, was a fair and reasonable family settlement with reference to his and their situation, and that he retained still in his hands the complainant's two bonds, which were enough to pay all his debts in any possible contingency.

I can see no good reason in this case, if there was no intended fraud on the part of the father in making this settlement of his estate, for depriving his two daughters, who are made defendants, of the amount due to them on the bonds of Philander Seward. I presume it cannot be seriously urged that where a parent makes an advancement to his child, honestly and fairly retaining in his own hands at the same time property sufficient to pay all his debts, such child will be bound to refund the advancement for the benefit of creditors, if it afterwards happens that the parent either by misfortune or fraud, does not actually pay all his debts which existed at the time of the advancement.

Where a parent makes a voluntary gift or conveyance of his property without any valuable consideration, and for the purpose of defrauding creditors, equity may well follow it

1836.

Van Wyck

V.

Seward.

1836.

Becker

V.

Ten Eyck.

into the hands of the donee, for the benefit of the creditors, although such donee was not privy to the intended fraud. But I have already satisfied myself that this is not such a case. Although the complainant had a technical right to keep all the property bid in under the judgment, and to hold the assignee liable for the deficiency, it would be requiring too much of a court of equity to ask it to lend its aid to strip the children of the assignor of the advancements which he had honestly made to them out of his estate, when he had ample means for making such advancements without the risk of doing injustice to any of his creditors.

The conclusion at which I have arrived, therefore, is, that there is no foundation for this suit as against either of the defendants; and that the decree of the vice chancellor, dismissing the bill, should be affirmed, with costs. (a)

(a) The decree of the chancellor in this case was affirmed, on appeal to the court for the correction of errors, in December, 1837,

BECKER US. TEN EYCK.

The sheriffs of the several counties, except the county of New-York, are the keepers of the county jails, and are entitled to all the fees and perquisites of such office.

The sheriff may keep the jail in person, or he may employ under him as many deputy keepers as he thinks fit, and may allow them such compensations for their services as shall be agreed upon between him and them, either by way of salary, or by allowing them the whole or a portion of the perquisites to which he is entitled as the principal keeper.

So the sheriff may contract with his under sheriff and deputies for the discharge of the duties of their several trusts, either for a specific compensation or for a reasonable proportion of the fees and emoluments arising from the performance of such duties. But an agreement of a deputy to allow to his principal a sum in gross, not payable out of the profits of the office, and which may therefore exceed such profits, is a violation of the statute which prohibits the buying and selling of offices.

Where the deputy of a public officer is by law entitled to certain fees or perquisites in virtue of his character of deputy merely, if he agrees to give to the officer appointing him a portion of such fees or perquisites, it is a purchase of the deputation; and the parties to such agreement are guilty of a violation of the statute against the buying and selling of offices,

1836.

Becker

V.

Ten Eyck,

THIS was an appeal from a decretal order of the vice chancellor of the third circuit. The defendant, C. A. Ten Eyck, was sheriff of the county of Albany, during the years 1826, 1827 and 1828, and the complainant was his under sheriff and jailer. The complainant, during the three years, April 19. purchased the fuel, lights, provisions and supplies for the jail, hired turnkeys, cooked the food of the prisoners and caused the jail to be cleansed, &c. at his own expense. The accounts for these expenditures, together with the fees for receiving and discharging prisoners in criminal cases, were made out by him annually, in the name of the sheriff, and presented to the board of supervisors for their allowance, and were audited and allowed in the name of the sheriff, and were thus entered in the books of the county treasurer. The amount allowed during the two first years, was paid to the complainant, by the county treasurer, on the orders or with the assent of the sheriff; out of which amount the complainant in each year paid to the sheriff $200. The amount which was thus allowed for the last year, in the name of the defendant Ten Eyck, was $3035,82; of which sum $436,13, was for the fees of receiving and discharging prisoners, and of transporting two prisoners to the House of Refuge, and the residue was for board and clothing prisoners, cleaning the jail, and for wood, oil, and other supplies for the jail. The defendant Ten Eyck, forbid the county treasurer from paying over the last year's allowance to the complainant, until a settlement should be made between them, claiming a right to a share of the profits of keeping the jail and dieting the prisoners, &c. during the three years. The complainant thereupon filed his bill in this cause against Ten Eyck and the county treasurer, to restrain the former from receiving the amount thus. allowed, and to have the same paid over to him.

The complainant alleged in his bill that the allowance of the account in the name of Ten Eyck was a matter of form only, as he was the sheriff of the county, but that the whole amount thereof belonged to the complainant; that no special agreement existed between him and Ten Eyck that he should pay the latter any part of the accounts annually al

1836.

Becker

V.

lowed for such jail expenses; and that the sums which he had paid to Ten Eyck the two previous years, had been obtained by threats of removing him from his office of unTen Eyck. der sheriff and jailer; and that upon a fair adjustment of his accounts with Ten Eyck, as his under sheriff, a balance would be due to the complainant. An arrangement was afterwards entered into between the parties, by which the amount allowed by the supervisors for the last year was received from the county treasurer and placed in the hands of a third person to pay out a portion thereof to those who had furnished wood and provisions to the complainant for the use of the jail, and to deposit the residue in bank, to abide the decision of the court. By the answer of the defendant he admitted that the complainant had kept the jail and supplied the prisoners with food, &c. and had purchased the wood and other supplies, and hired turnkeys and procured the jail to be cleansed; but he insisted that it had been all done by the complainant as his agent. The defendant also alleged that previous to his appointing the complainant his under sheriff and jailer, other applicants had made him offers of different sums of money to be paid to him for his proportion of the profits from the jail, which he communicated to the complainant before his appointment, and the complainant promised and agreed to give him one half of all the fees and perquisites of the office of under sheriff and jailer. The defendant also alleged, in his answer, that the complainant had refused to render an account of the fees and perquisites of the office of under sheriff and jailer, the one half of which, as the defendant had been informed and believed, amounted to at least $500 per annum.

The cause was heard before the vice chancellor upon the pleadings and proofs. He made a decree, and directed a reference to a master to take an account between the parties, upon the principle of crediting the sheriff with all allowances made by the board of supervisors on account of the jail expenses during the three years, and all monies received by the complainant as under sheriff; and crediting the complainant for monies paid or liabilities incurred by him for the necessary expenses and supplies for