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1821.

PALMER

BATE.

The questions for the opinion of the Court were,

Whether the assignment of the income, emoluments,
produce and profits of the office, or place of clerk of the
peace for Westminster, after deducting the salary or
allowance of the deputy for the time being, of the De-
fendant Thomas Wright Vaughan, in the said office, by
the said Defendant, Thomas Wright Vaughan, to the
Plaintiffs, George Palmer and William Loaden, by the
indenture in the pleadings mentioned, dated the 25th
January, 1806, is a good and effectual assignment, and
valid in the law? And whether the said George Palmer
and William Loaden could legally and of right receive
and take the income, profits, emoluments, and produce
of the said place or office, under, and according to the
true intent, meaning and effect of the said deed of
assignment, upon, and subject to the trusts, intents and
purposes therein expressed and declared of and con-
cerning the same ?

The case was argued on a former day in this term.

Lawes Serjt., for the Plaintiffs. There is no autho-
rity immediately applicable to this case : the decisions
regard offices of a different nature. It is not contended
that the office is saleable; it is a public office relative to
the administration of justice, and the sale of it would be
illegal by stat. 5 & 6 E. 6. (a) But this is merely an as-
signment of the profits of an office which is regulated by
stats. 37 H. 8. (6) and 1 W. & M.(c) By the former, the
nomination of clerks of the peace is given to the custos
rotulorum ; by the latter, a residence in the county is re-
quired; and, by both, it is enacted, that the office may
be executed by deputy, to be approved of by the custos
rotulorum. That the office is a freehold appears from The

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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

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182).

PALMER

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.”]

BATE.

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.

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182).

Kloprogge (a), the office, the profits of which the Court held might be well assigned, was only that of private secretary to Lord Holdernesse.

MER

BATE

(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-
sessed of any office of trust, com- Lord Mansfield, without hear-
mission, place or pension what, ing the other side ; there is
ever, he should assign such office, nothing in the objection. The
&c. to the Plaintiff, who was agreement is for the assignment
to take the whole profits : and of all offices, and is good as to
for the performance of this agree. all offices which may legally be
ment, the present bond was given. assigned. The profits arising
The plea then averted, that the from this office of private secreo
Defendant, since the bond, had tary to Lord Holdernesse might
been private secretary to Lord be assigned ; and as to all others,
Holdernesse : and that all the they are not within the present
money received by him in that case.
place, was paid by the Defendant

Judgment for Plaintiff.
to the Plaintiff, and that Defend-
ant never had any other place.

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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,

COVENANT.

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