49 Vroom.

Winter v. Schoenfeld.

resentation was made for the purpose of inducing the defendant to purchase the business, and that the defendant made the purchase on the faith of the representations; that the representation was untrue, the fact being that the plaintiff's lease expired in the spring of 1909; that the defendant has only recently discovered the falsity of the representations, and that he thereupon rescinded the contract and tendered to the plaintiff a bill of sale of the goods and chattels, good will and business of the hotel; that the items set forth in and annexed to the declaration are for moneys claimed by the plaintiff under and pursuant to the agreement and transaction of purchase; that the consideration has completely failed. The third plea sets up in the form of a plea a right to recover damages by way of recoupment by reason of the deceit which is set forth substantially in the terms of the second plea. A separate demurrer is interposed to each plea. One of the causes of demurrer to the second plea is that the alleged misrepresentations could not defeat the plaintiff's right to maintain this action, and one of the causes of demurrer to the third plea is that the plea does not show a defect in or partial failure of the consideration of the contract sued on. The second and third pleas are directed apparently to the cause of action disclosed in the bill of particulars. This, however, is no part of the declaration. Harrison v. Vreeland, 9 Vroom 366; Brown v. Warden, 15 Id. 177.

The declaration counts upon an implied contract; it alleges an indebtedness from the defendant to the plaintiff and a promise in consideration thereof to pay the plaintiff the sums demanded. The case, therefore, does not raise the question, which counsel have supposed to be involved and to which their arguments have been directed, whether section 105 of the Practice act (Pamph. L. 1903, p. 568) authorizes the defendant to recoup damages for deceit upon a contract for sale. That section authorizes only the recoupment of damages which the defendant may have sustained by reason of any cause of action arising out of the contract or transaction which is the subject of the action. The contract which is the subject of the action in this case is not the contract of sale,

but an implied contract to pay an existing debt. The distinction has already been pointed out by this court in Bozarth v. Dudley, 15 Vroom 304 (at p. 313). The demurrers, therefore, are well taken, and the plaintiff is entitled to judgment upon the two pleas demurred to. The issue raised by the plea of non-assumpsit remains to be tried.

For the satisfaction of the defendant, it may be well to add that as near as we can guess from the statements of the bill of particulars, the amounts claimed are for rent accrued while the defendant was in the actual occupation of the premises, for a balance of cash paid for a liquor license by the plaintiff for the defendant, and for a balance due for beer actually delivered. These items seem to constitute a debt which would be a sufficient consideration for the promise set forth in the declaration. On the defendant's own showing of a rescission of the contract he was bound to restore the consideration which he had received, and a part of this consideration was the occupancy of the premises for the thirteen months in question and perhaps the amount of the license fee which the defendant would be bound to repay. The sale and delivery of the beer seems to have been an ordinary case of the purchase and sale of goods and chattels and occurred long after the original transaction. This sale itself would constitute a sufficient consideration to support the declaration.

JOHN M. ARBUCKLE, RELATOR, v. JAMES J. KELLY, SHERIFF, AND THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF HUDSON.

Submitted March 19, 1909-Decided July 6, 1909.

The head keeper of the common jail of Hudson county holds his position under the sheriff, and not under the government of the county, and his position is not protected by the act of 1907 (Pamph. L., p. 37).

This is a rule to show cause why a writ of mandamus should not be allowed commanding the sheriff of Hudson county and the board of chosen freeholders of that county to restore John M. Arbuckle to his position of head keeper of the Hudson county common jail.

Before Justices REED, TRENCHARD and MINTurn.

For the relator, Melosh & Morten.

For the defendants, John Griffin.

The opinion of the court was delivered by

REED, J. The relator, John M. Arbuckle, on August 15th, 1908, was appointed head keeper of the county jail of Hudson county by former Sheriff John C. Kaiser, and his salary was approved by the board of chosen freeholders of Hudson county under section 4 of the act placing sheriffs on a salary. Pamph. L. 1905, p. 18.

Upon the expiration of Sheriff Kaiser's term he was succeeded by James B. Kelly. Sheriff Kelly failed to reappoint Arbuckle to his position of head keeper, and has entirely ignored him in connection with that position.

Mr. Arbuckle claims that he is protected in the position to which he was appointed by Sheriff Kaiser by the act of 1907 (Pamph. L., p. 37), and seeks in this proceeding to compel a restoration or recognition by the sheriff and board of chosen freeholders as still the head keeper of the common jail.

The act of 1907 enacts that "No person now holding a position or office under the government * * * of any county, city, town, township or other municipality of this state, or who may be appointed to any such position, whose term of office is not now fixed by law, and receiving a salary from such state, county, city, town, township or other municipality, who is a soldier, sailor or marine, who has served in any war of the United States and has been honorably discharged from the United States service, shall be removed from such posi

tion or office except for good cause shown after a fair and impartial hearing."

It is admitted that Mr. Arbuckle served as a soldier in the Spanish-American war, and was honorably discharged from the federal service, and so far is entitled to the benefits of the act of 1907. The question is whether he held a position or office under the government of the county of Hudson in the State of New Jersey, the term of which was not fixed by law.

I think it cannot be doubted that under the fee system which prevailed before sheriffs were put upon a salary, the keepers of the common jails appointed by the sheriffs were not persons holding positions under the board of chosen freeholders or under the government.of any municipality.

The sheriff is a constitutional officer, and to his office is attached all the substantial powers, duties and functions which appertained to that office before the adoption of our constitution. Virtue v. Freeholders of Essex, 38 Vroom 139, 144.

Not only was the sheriff at common law the custodian of the common jail, but upon him rested the duty and the power of employing the keeper or keepers of such jail. He must appoint an under keeper, who is called a gaoler, for whose conduct in office the sheriff must answer. 2 Burn Just. 429. This gaoler he may discharge at his pleasure, and if the gaoler refuse to surrender up or quit possession, the sheriff may take him out by force, as he may a private person. 4 Bac. Abr. 464. Because the sheriff was to put in such keeper, for whose acts he should answer, and the jail being put in his custody, the sheriff was answerable for the escapes, where the jail belonged to him. Rex v. Fell, 12 Mod. 226.

So it seems clear that the head keeper of common jail appointed by the sheriff, held his position under the sheriff and not under the government of the county.

Nor was this relation between the sheriff and such appointee changed by the Salary act of 1905. Pamph. L., p. 18. The only change made by that act was that, instead of the sheriff being paid for his services by statutory fees paid to him for each service, these fees were turned over by him to the county, and the county became his paymaster. The sheriff was still,

in the language of section 4 of the act of 1905, to select and employ the necessary deputies and assistants for his office, and the county was to pay them such compensation as it approved. The appointment of head keeper still rested with the sheriff. The legislature never intended by the act of 1905 that the sheriff should be responsible for the conduct of any servant not of his own selection. After, as before the passage of the act of 1905, the keeper of the common jail was the appointee of the sheriff, and did not hold his position under the board of chosen freeholders.

The case of Cavenaugh v. Freeholders of Essex, 29 Vroom 531, is not controlling. That case was decided upon the assumption that the board of chosen freeholders of Essex was the custodian of the jail, and that Cavanaugh was its appointee. The decision of Virtue v. Freeholders of Essex, supra, destroyed the foundation upon which the result in the Cavanaugh case was reached, and the latter case is not applicable.

I am therefore of the opinion that the act of 1907 is not applicable to the situation, presented by the testimony taken upon the rule to show cause.

The allowance of the writ prayed for should be refused.

FRANK LEE DICKINSON, TRADING AS FRANK LEE DICKINSON COMPANY, PLAINTIFFS AND PROSECUTORS, v. WILLIAM J. HARBISON AND HENRY W. BAUER, DEFENDANTS.

Argued November 5, 1908-Decided April 30, 1909.

A levy by an execution creditor upon goods sold in bulk by a debtor, in the hands of the purchaser, is a proceeding at law within the meaning of the proviso to section 1 of the act entitled "An act to prohibit sales of merchandise in bulk in fraud of creditors" (Pamph. L. 1907, p. 570), and if the levy be made within ninety days after the consummation of such sale it will raise the question of the validity of such sale under the statute. Such a sale in bulk VOL. XLIX.

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