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One was that of a life-guard-man some few years ago, whose discharge was opposed before Aston, J., on the ground that, as the place was assignable for his own benefit, he was compellable to assign it for the benefit of his creditors; and the learned Judge refused to discharge him on that ground. Another instance was in the case of one Peake, a superannuated boatswain of the Royal George in May 1789, who was brought up by a creditor under the compulsory clause, where it was held that he was compellable to assign his commission ; but before the expiration of the sixty days he made a compromise. There were two other cases, one in the Exchequer, where it was decided that a Captain Yates, of the navy, was not obliged to include his half-pay in the schedule, because it was not saleable by law; the other in the Court of Common Pleas of a master in the navy, who was discharged without assigning his half-pay, for the same reason. Now, he observed, there is a wide distinction between the former and the latter cases ; for the statute 1 Geo. 2. st. 2 c. 14 s. 7, avoids all assignments of seamen's wages. But the commissions of officers in the army are assignable. In addition to the above cases he mentioned another, which happened about five years ago in the Common Pleas, where on an application by a horse-guard-man to be discharged, he was compelled to assign his balf-pay. And in 1 Atk. 210, where the question was whether the office of under-marshal of the City was assignable under the bankrupt laws, Lord Hardwicke held that it was, and said (1 Atk. 214), “ If an officer in the army should become a bankrupt, he should have no doubt but that he had a power to lay his hands upon his pay for the benefit of his creditors.” The enacting clause of the Lord's Act, 32 Geo. 2 c. 28 s. 13, directs that the prisoner, before he is discharged, shall deliver in a schedule of all his estates, &c., real and personal, or which he or any person in trust for him is interested in or entitled to; which words are sufficient to carry even an equitable estate to the creditors ; and indeed without this provision the sixteenth clause, which is the compulsory one, would be defeated. In Stuart v. Tucker, 2 Bl. Rep. 1140, it was held that the half-pay of an officer was assignable in equity. Now whatever interest passes by an assignment under a commission of bankrupt may be assigned under the Lord's Act to the creditors.
Garrow, contra, was stopped by the Court.
LORD KENYON, Ch. J. I am clearly of opinion that this half-pay could not be legally assigned by the defendant. Vid. Lidderdale v. The Duke of Montrose and Lord Mulgrave, post. 4 vol. 248. S. P., and consequently that the creditors are not entitled to an assignment of it for their benefits. Emoluments of this sort are granted for the dignity of the State, and for the decent support of those persons who are engaged in the service of it. It would therefore be highly impolitic to permit them to be assigned; for persons, who are liable to be called out in the service of their country, ought not to be taken from a state of poverty. Besides an officer has no certain interest in his half-pay ; for the king may at any time strike him off the list. Indeed assign. ments of half-pay have been frequently made in fact, but they cannot be supported in law. It might as well be contended that the salaries of the Judges, which are granted to support the dignity of the State and the administration of justice, may be assigned.
ASHHURST, J. All voluntary donations of the Crown are for the honor and service of the State. This seems from the cases mentioned to have been vexata questio : but on considering the consequences of this application, it seems more proper that half-pay should not be assigned
BULLER, J. What the duty of the life-guardsmen was originally we do not know : but for some time past these places have been held regular objects of sale; and if an office may be sold by the party hinself, it
from the present case : for I know of no authority by which an officer may sell his half-pay; and on principles of policy he ought not to be permitted to do it. If the question had been whether or not the pay which was actually due might be assigned, I should have thought it, like any other existing debt, assignable ; but that does not extend to future accruing payments.
GROSE, J. The future half-pay could not have been sold by the defendant himself; and therefore his creditors cannot compel him to assign it for their benefit.
The prisoner was ordered to be discharged accordingly.
GRENFELL v. DEAN AND CANONS OF WINDSOR.
[Reported 2 Beav. 544.] In April, 1829, the defendant, the Rev. R. A. Musgrave, was appointed by letters patent, one of the prebends or canons of the collegiate church or free chapel of St. George, within his Majesty's castle at Windsor, an appointment which produced an income of about £1200 a year.
Being in want of money, Mr. Musgrave, in October, 1838, granted to the plaintiffs the said prebend or canonry, and all the annual income arising from renewal fines, rents, and other perquisites, emoluments, and advantages to which he was entitled as one of such prebends or canons, and he also assigned to them two several policies of insurance, for securing to the plaintiffs the repayment of the sum of £12,000.
It appeared from the answer of Mr. Musgrave, that the income arose from estates possessed by the corporation, the rents and proceeds of which were usually divided half-yearly between the dean and twelve canons; but it did not appear that there was any property vested in the dean and canons independently of the corporation.
There did not appear to be any spiritual duties attached to the office, nor any cure of souls, but the answer represented, that the corporation was governed by certain statutes and ordinances, whereby certain duties were imposed upon the members of the said corporation to be by them performed, each member of the said corporation having the privilege of residing in a house within the walls of the said castle of Windsor; and that if any member of the corporation failed to perform his appropriated duties, he, by virtue of the said statutes and ordinances, forfeited his right to share in the division of the surplus income of the said corporation, and in lieu thereof was entitled to receive a small fixed stipend, of the amount, as the defendant believed, of £25 a year only ; and that the members of the corporation were in such cases entitled to the residue of his share of the surplus income of the corporation. That one of the duties, by the said statutes and ordinances imposed upon each of the said canons, was to reside in one of the said houses within the walls of the said castle of Windsor, and to attend divine service in the said chapel of St. George, at Windsor, twenty-one days in each year.
The defendant, Mr. Musgrave, having made default in payment of the interest and in keeping up the policies, the plaintiffs filed this bill for the purpose of obtaining payment, and for an injunction and receiver ; on the 11th of January, 1840, an order was made on affidavit, before answer, restraining the dean and canons from paying, and the defendant from receiving, the income of the canonry and for the appointment of a receiver.
The defendant, Mr. Musgrave, having put in his answer, it was now moved on his behalf, to discharge the order for an injunction and receiver.
Mr. G. Richards, in support of the motion.
The Master Of The Rolls. The plaintiffs, being under the necessity of filing this bill, in consequence of the neglect of the defendant to pay either principal or interest on the money advanced, have obtained an order for a receiver. I do not enter into the question whether the order was opposed at the time, for the defendant had clearly a right to pursue any course he pleased upon that occasion, and supposing him to have then thought, or to have been then advised, that this order was proper, still it was perfectly competent for him afterwards, upon a more careful inquiry, to bring under the consideration of the court the question, whether the order ought to be sustained. It is now contended that the order should be discharged on two grounds : the first is, that it is an order which cannot be enforced for any useful or profitable purpose to the plaintiffs without the assent and concurrence of the defendant, Mr. Musgrave. Mr. Musgrave, being a canon of Windsor, has, it is said, a duty to perform, that is, he is to reside twenty-one days within the precincts of the castle of Windsor, and aliquot share or part of the general revenues of the corporation which he would otherwise be entitled to, is to be reduced to a certain small sum. He therefore says: “If I do not choose to attend during that liine, the small sum only, and not the larger sum, will have to be received, and therefore the plaintiffs and the receiver will be unable to receive the income for the purpose of applying it in diminution or in exoneration of my debt.” It cannot be supposed that Mr. Musgrave will be so unwise, as, rather than give the plaintiffs the benefit of that which they are clearly entitled to, wholly to neglect to perform the duty which entitles him to the receipt of this income, and thus leave the debt standing, and the interest accumulating upon it. I cannot presume that any such degree of absurdity will mark his future
conduct. R! In the next place it is said that he has no right to assign this can
onry, because the share of the revenues was given to him in consideration of certain future duties to be performed. Now if it had been made out that the duty to be performed by him was a public duty, or in any way connected with the public service, I should have thought it right to attend very seriously to that argument, because there are various cases in which public duties are concerned, in which it may be against public policy, that the income arising for the performance of those duties should be assigned ; and for this simple reason, because the puhlic is interested, not only in the performance from time to time of the duties, but also in the fit state of preparation of the party having to perform them. Such is the reason in the cases of half-pay where there is a sort of retainer, and where the payments which are made to officers, from time to time, are the means by which they, being liable to be called into public service, are enabled to keep themselves in a state of preparation for performing their duties. If, therefore, they were permitted to deprive themselves of their half-pay, they might be rendered unable promptly to enter upon their duties when called upon, and the public service would be thereby greatly injured. So, also, where a pension or remuneration is given for a purpose which tends less directly to the public benefit, as for instance was the case in Davis v. The Duke of Marlborough; there the pension was given to the Duke of Marlborough as a memento of the gratitude of the nation, and as a reward for his distinguished public services; and it was there the intention of the legislature that it should be kept in mind that it was for those great services it was given. In that case the pension was held inalienable, because it was considered that one of the objects of giving the pension, namely, for having a perpetual memorial of national gratitude for public services would be entirely lost; and so in the course of that case Lord Eldon said, in the way of illustration, and in allusion to the pension of a great public officer, that it could not be aliened, because that public officer must not be allowed to fall into such a situation as to make it difficult for him, in consequence of any pecuniary embarrassment, to maintain the dignity of his office. With respect to the case of Cooper and Reilly, some doubts have been expressed as to the propriety of the decision on the motion for a receiver; but the question was, whether the salary was assignable on grounds of public policy, and that depended on the nature of the duty and the
interest of the public to secure the payment of the salary to the person R, by whom the duty was to be performed. If in this case the residence
in Windsor Castle, and the attendance on divine service had been stated in the answer, or in any way shown to be for the benefit of the public, or for the maintenance of the dignity of the Sovereign for the benefit of the public, I should have thought the case worthy of a very different consideration. But from all which is stated in this answer that is not the case ; it is a service to be performed for the benefit of the party himself; and, therefore, upon the case as it now stands upon this answer, and without saying there may not be other facts which may be material to be ultimately considered, it appears to me that the security of the plaintiffs is valid, and I must therefore refuse the motion with costs.
WELLS v. FOSTER.
(Reported 8 M. & W. 149.] ASSUMPSIT for money had and received, and on an account stated. Plea, non assumpsit. At the trial before Lord Abinger, C. B., at the Middlesex sittings after Hilary Term, it appeared that the defendant had held a situation as clerk in the Audit Office for upwards of twenty years, up to the year 1835, when, the establishment being reduced, he was placed on a retired allowance of £130 a year, granted to him, not for life, but as an allowance for maintenance until he should be called on to serve again, and with an express understanding that he was bound, whenever he should be called upon, to re-enter the Audit Office, or to take any other office under the Crown of equal value. In 1837, the defendant, being in execution at the suit of the plaintiff, executed to him an assignment of this annuity, and also gave a warrant of attorney to secure the payment of the debt by instalments. The deed of assignment contained a covenant that the defendant had good title to assign the annuity. In consideration of the execution of this deed, the defendant was discharged from custody. After his discharge, the plaintiff's debt remaining unpaid, he obtained an injunction to restrain the defendant from securing or assigning over any part of his pension; which was subsequently dissolved, upon the terms that the defendant's attorney should receive the pension and pay it into a banking-house, and that the plaintiff should be at liberty to bring any action he might be advised, for the amount so paid in. The present action was brought