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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 Defendant 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 concerning the same?

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

Lawes Serjt., for the Plaintiffs. There is no authority 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 assignment of the profits of an office which is regulated by stats. 37 H. 8. (b) 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 required; 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 (a) c. 16.

(b) c. I. s. 3.

(c) c. 23. s. 5.

Queen

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1321.

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Queen against The Clerk of the Peace of Cumberland (a), and The King and Queen against Evans (b); 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. Coutan (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

(a) 11 Mod. 80.
(b) 12 Mod. 13.
(c) 12 Mod. 42.
(d) 1 Salk. 468.

(e) a W. Bl. 1137.
(ƒ) 1 H. Bl. 627.
(8) 3 B. & P. 321.

salary,

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 sug gestion 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 (b), 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.

(a) Flarty v. Odlum, 3 T.R.

681.

(b) 8 T. R. 89.

(c) x H. Bl. 322.

(d) 18 Ves.. 379

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Kloprogge

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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 v. KLOPROGGE.

An assignment
ACTION on bond for payment
of the profits of 1200l.; oyer craved, and the
of all the condition appeared to be, that
offices of trust the Plaintiff had joined in a
commissions, hond with the Defendant, to one
&c. which the Newman, for 1200l., to secure
Defendant the payment of an annuity of
may acquire is 100l. to Newman, during the
good, as to all life of the Defendant. That
offices which the money given for the annuity
may be legally had been paid to the present
assigned, by Defendant, and in order to in-
way of indem- demnify the Plaintiff against the
nifying the
consequence of becoming security,
Plaintiff, who it was agreed, that the profits of
has paid
the place of the Defendant, as se-
money for the cretary to Lord Holdernesse, should
Defendant. be assigned, and that, whenever
the Defendant should become pos-
sessed of any office of trust, com-
mission, place or pension what-
ever, he should assign such office,
&c. to the Plaintiff, who was
to take the whole profits and
for the performance of this agree-
ment, the present bond was given.
The plea then averred, that the
Defendant, since the bond, had
been private secretary to Lord
Holdernesse: and that all the
money received by him in that
place, was paid by the Defendant
to the Plaintiff, and that Defend-
ant never had any other place.

Replication denied the receipt of the money as stated in the plea; and alleged, that Plaintiff had been obliged to pay Newman a certain sum.

Demurrer by Defendant, and issue on the payment.

Morgan, for the Defendant, made two objections to the validity of the agreement. First, that it was illegal and void by stat. being for the purpose of assigning all offices, &c.; and that to assign an office of trust was illegal. Second, that, by the common law, offices of trust could not be assigned.

Lord Mansfield, without hearing the other side; there is nothing in the objection. The agreement is for the assignment of all offices, and is good as to all offices which may legally be assigned. The profits arising from this office of private secretary to Lord Holdernesse might be assigned; and as to all others, they are not within the present

case.

See 3 Co. 83.a.

Judgment for Plaintiff.

Lawes,

Lawes, in reply. Godolphin v. Tudor decides, that an officer has a right to dispose of the profits of his office. If an officer may dispose of the profits to his deputy, he may, also, assign them to his creditors.

The following certificate was now sent:

Cur. adv. vult.

This case has been argued before us by counsel. We have considered it, and are of opinion, that 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 Defendant, 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 day of January, 1806, is not a good or effectual assignment, nor valid in the law.

And that the said George Palmer and William Loaden are not entitled legally and of right to receive and take the income, profits, and 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 concerning the same.

May 31st, 1821.

(a) See also Hanington v. Du Chatel, I Bro. C. C. 124. Lidderdale v. Duke of Montrose, 4 T. R. 428. Garforth v. Fea

R. DALLAS.

J. A. PARK.

J. BURROUGH.

J. RICHARDSON. (a)

ron, 1 H. Bl. 327. Lowfield's
case and Bristow's case, I Atk.

212.

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