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The questions for the opinion of the Court were,
Whether the assignment of the income, emoluments,
The case was argued on a former day in this term.
Lawes Serjt., for the Plaintiffs. There is no autho-
Qucen against The Clerk of the Peace of Cumberland (a), and The King and Queen against Evans (6); so much so that the succeeding custos rotulorum cannot displace the actual clerk. Harcourt v. Fox. (c) Where profits are annexed to a freehold office, it cannot be said that the officer has not the disposal of them. Nor will public justice suffer from the assignment of them; the fulfilment of the duties of the office by deputy being provided for. Godolphin v. Tudor (d) recognizes the right of the principal to dispose of the profits of a public office, and Stuart v. Tucker (e) shews that the use of the half pay of a military officer is assignable. A close analogy may be found in the assignment of the profits of ecclesiastical benefices; the only requisite in such cases is, that the cure be provided for, as the execution of the office is in the present case. [Dallas C. J. Suppose the deputy dies, and the custos rotulorum refuses to approve the nomination of a new deputy, what becomes of the performance of the duties of the office? Again, suppose that the deputy becomes ill, the principal must then perform the duties of the office, but how is he to perform those duties when there is nothing to sustain him ? Park J. The case of Stuart v. Tucker was much shaken by subsequent decisions. In Barwick v. Reade (f) it was held, that the full pay of a military officer could not be assigned by way of annuity; and in Arbuckle v. Cowtan (g), Lord Alvanley C. J., in delivering judgment, says, “ It is now clearly established, that the half-pay of an officer is not assignable, and unquestionably any
salary, paid for the performance of a public duty, ought not to be perverted to other uses than those for which it is intended. Notwithstanding the case of Stuart v. Tucker, in which it was held that the half-pay of an officer was assignable in equity, it was expressly decided, in Flarty v. Odlum, that it was not assignable at all, which decision met with general approbation.”]
Lens Serjt., contrà. It is admitted, that the office in question is not saleable; if, then, the officer cannot sell, can it be contended that he may pledge his office for any amount? The argument drawn from the provision for the deputy is beside the question. The principal cannot withdraw himself, otherwise there might be a hindrance of public justice. In the present case, the office is substantially no longer in the officer, but in those to whom he assigns the produce of it. Supposing the deputy to fail, there would be no one to perform the duties of the office. A military officer cannot assign his half-pay. (a) And the analogy drawn from cases of sequestration does not assist the Plaintiff. Those cases turn on the old law of lay-fee. On suggestion that the clergyman has no lay-fee, the bishop levies, providing for the cure by appointing a curate and paying him out of the proceeds of the execution. The case of Godolphin v. Tudor is not in point. The officer here is the mere nominal possessor, and, substantially, has sold his office. Blackford v. Preston (6), Parsons v. Thompson (c), and Osborne v. Williams (d), shew in what light contracts of this nature are viewed both at law and in equity. In Harrington v.
Kloprogge (a), the office, the profits of which the Court held might be well assigned, was only that of private secretary to Lord Holdernesse.
(a) The Reporters are indebted to the kindness of Mr. Serjeant Lens for the following MS. note of the case.
(K. B. Michaelmas, 25 Geo. 3.)
HARRINGTON 0. KLOPROGGE.
An assignment Aerion on bond for payment Replication denied the receipt of the profits of 12001. ; oyer craved, and the of the money as stated in the of all the condition appeared to be, that plea ; and alleged, that Plaintiff offices of trust the Plaintiff had joined in a had been obliged to pay News commissions, hond with the Defendant, to one man a certain sum. &c. which the Newman, for 1200l., to secure Demurrer by Defendant, and Defendant the payment of an annuity of issue on the payment. may acquire is tocl. to Newman, during the good, as to all life of the Defendant. That Morgan, for the Defendant, offices which the money given for the annuity made two objections to the vamay be legally had been paid to the present lidity of the agreement. First, assigned, by Defendant, and in order to in that it was illegal and void by way of indem- demnify the Plaintiff against the stat. being for the purpose of nifying the consequence of becoming security, assigning all offices, &c.; and Plaintiff, who it was agreed, that the profits of that to assign an office of trust
the place of the Defendant, as se- was illegal. Second, that, by money for the cretary to Lord Holdernesse, should the common law, offices of trust Defendant. be assigned, and that, whenever could not be assigned.
the Defendant should become pos-
Judgment for Plaintiff.
day of the ship's report inwards at | after deducting the salary or allowthe port of London. The voyage ance of his deputy for the time being, was performed. and goods of third upon trust, to pay the interest persons brought from Demerara arising on certain debts due from under bills of lading, deliverable to A., and from time to time renthe consignees on payment of cer der the surplus and residue, after tain specified freights therein men satisfying the trusts to A., is intioned, which freights the Defend valid. Palmer v. Bate. Page 673 ant received, no bill for the three quarters' freight per charter-party
CO-HEIRS. having been given or tendered to See PLEADING, 11. LANDLORD AND him, and a bill for one quarter
TENANT, 5. given at Newfoundland having been dishonoured: Held, (Dallas COMMISSIONERS. C. J. dissentiente,) first, that, not
See SEWERS. withstanding the words of grant, taking the whole charter-party into CONSERVATORY. consideration, the possession of the
See LANDLORD AND TENANT, 1. ship did not pass to the freighter, but remained in the owner ; and CONSIDERATION. that, as the freight per charter
See ANNUITY, 3. party was to be paid to him by good bills, prior to the delivery of
CONSTABLES. the homeward cargo, he had a lien
Some constables, under a warrant to thereon for such freight : secondly,
search a house for black cloth that he had a right to receive the
which had been stolen, finding no freight per bills of lading from the
black cloth, took cloth of other coconsignees, and had a like lien on such freight when so received.
lours, and carried it before a maChristie v. Lewis.
gistrate, refusing, at the same time, Page 410
to tell the owner of the house CHURCH RATES.
searched whether they had any
warrant or. no: Held, that they See BANKRUPTCY, 5.
were within the protection of the CLERK OF THE PEACE.
stat. 24 G. 2. c. 44. : and that an
action against them ought to have An assignment to trustees of all the
been commenced within six months emoluments and profits which,
after the grievance complained of. during the life of A., and his con
Smith v. Wiltshire. .
619 tinuing to hold the office of clerk of the peace, should arise or be CONTINGENT DAMAGES. come due to him as clerk of the
See GUARANTEE. peace, or in respect of his office,