accordingly. Upon these facts, the Lord Chief Baron directed a verdict for the plaintiff, damages £67. 10s., leave being reserved to the defendant to move to enter a nonsuit, if the court should be of opinion that the defendant's pension was not assignable in law. Erle having obtained a rule nisi accordingly, Hoggins now showed cause. Erle and W. J. Alexander, contra. LORD ABINGER, C. B. The court are of the opinion that this pension was not assignable. It stands upon the same footing as the halfpay of an officer in the army. It is fit that the public servants should retain the means of a decent subsistence, without being exposed to the temptations of poverty. Besides, the defendant may be assigning what he has no right to receive; for his pension subsists only during pleasure, and it depends on Parliament whether it shall be continued or not. The rule to enter a nonsuit must be absolute. PARKE, B. I concur in the opinion that this action is not maintainable, upon the ground that, on principles of public policy, the allowance granted to the defendant was not assignable by him. It is not necessary in this case to determine whether this is an allowance to which the defendant is entitled as a matter of indefeasible right, or whether it is payable only during pleasure; although I have a strong impression that it subsists only during the joint pleasure of the Treasury and of Parliament, by which the fund for its payment is provided. On the other hand, even if it be payable only during pleasure, it appears to me that it is not therefore, in point of law, the less assignable, however little its value would be in consequence of its being liable to be withdrawn at any moment. But viewing the matter on the ground of public policy, we are to look, not so much at the tenure of this pension, whether it is held for life or during pleasure, as whether it is, in either case, such a one as the law ought to allow to be assigned. The correct distinction made in the cases on this subject is, that a man may always assign a pension given to him entirely as a compensation for past services, whether granted to him for life, or merely during the pleasure of others. In such a case, the assignee acquires a title to it both in equity and at law, and may recover back any sums received in respect of it by the assignor, after the date of the assignment. But where the pension is granted not exclusively for past services, but as a consideration for some continuing duty or service, although the amount of it may be influenced by the length of the service which the party has already performed, it is against the policy of the law that it should be assignable. Under the terms of the stat. 4 & 5 Will. 4, c. 24, the party, if an inferior officer, is liable at any time to be called upon to serve the public again; in the mean time a reduced allowance is awarded to him, in consideration of his holding himself in readiness for that purpose. This is the case of an officer who has received a compensation on account of a reduction in the number of the persons of his class employed in the office to which he belonged; and by the terms of the 19th section, all such persons are bound to give their services again to the public if called upon, and in the event of their refusal to do so, are liable to forfeit their pension altogether. I cannot assent to the argument that this pension cannot be taken away, for it appears to me to be clear, from the 30th section of the act, that this gentleman, so far as the question of his retainer or discharge is concerned, is exactly in the same position as if he were in full employment or on full pay; that he is equally liable to be dismissed at any moment, either for positive misconduct, or on any ground which would render him an unfit person to remain in the service of the Crown. I think the true view of this case is, that the defendant is still to be considered as in the public service, although not at present actually performing any duty in it; and that the compensation allotted to him under this act is by way of salary, the object of which is to enable him to maintain such a position in life as will save him from the necessity of risking his character by incurring those temptations which persons reduced to poverty are necessarily exposed to, and which would render him an unfit person to be again employed as a servant of the Crown. For this purpose, public policy requires that he should not be permitted to assign it away. ALDERSON, B. I am also of opinion that, on grounds of public policy, this pension is not assignable, and that in this respect it stands on the same footing as an officer's half-pay. The observations of Lord Kenyon, in Flarty v. Odlum, are very forcible, and apply fully to the present case. It appears to me that the defendant is a supernumerary officer in the pay of the Crown, although not at the present moment actually employed; he may be called into active employment again whenever his services are required by the Crown. I think he is within the 30th section of the act, and is now liable to dismissal for misconduct or unfitness for service. My Brother ROLFE requested me, before he left the court, to state that he is of the same opinion. Rule absolute. ARBUTHNOT v. NORTON. JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. 1846. [Reported 5 Moo. P. C. 219.] APPEAL from the Supreme Court of Judicature at Madras.1 The RIGHT HON. DR. LUSHINGTON. The question in this case arises between Messrs. Arbuthnot & Co., who are merchants and bankers carrying on business at Madras, and Mr. John Bruce Norton, who is the son and executor of the late Sir John David Norton, who was one of the Puisne Judges of the Supreme Court of Madras; and it relates to a sum of £2,500, which is payable by virtue of the Statute 6th of Geo. IV., cap. 85, and which is granted in the following manner (so far as relates to this question): "that when and so often as it shall thereafter happen, that any Puisne Judge of the Supreme Court of Judicature at Madras shall depart this life, while in possession of the said office, and after the expiration of six calendar months from the time of his arrival in India, for the purpose of taking upon him the office of Puisne Judge, then, and in all and every of such cases, the Court of Directors shall, and they are thereby required to pay or direct, and cause to be paid out of the territorial revenues, from which the salary of such Puisne Judge, so dying, should be payable, to the legal personal representatives of such Puisne Judge, so dying, as aforesaid, over and above what may have been due to such Puisne Judge at the time of his death, a sum equal to the amount of six calendar months' salary of the office of Puisne Judge." The sum on the present occasion, that is equal to the amount of six months' salary, is £2,500, and the claim of the appellants is limited to that sum; and the question is, whether, under the circumstances, they are entitled to it, within the provisions of this Act. Now, it appears that some time anterior to the death of the late Sir John Norton, he, for a good and valuable consideration, purported to make an equitable assignment of all his right and interest in this £2,500, to Messrs. Arbuthnot, in consideration of monies received from them; and the first question is, whether Sir John Norton had the power of making such an assignment, or whether, by virtue of this Act of Parliament, this fund was destined to go to some other persons, or in some other direction. With regard to this sum of £2,500, their Lordships are all of opinion, that the intention of the legislature was to provide against a contingency, which had arisen in two or three antecedent instances, and 1 The case is sufficiently given in the opinion. which contingency, in cases to come, is specifically provided for by this Act of Parliament, namely, that a person taking upon himself the office of a Judge in India, and dying in the possession of the office, having been put to great expenses at the time of making his outfit from this country to India, might have some certain means, whereby his estate would be enabled to be reimbursed that loss, in case of his death whilst in office. Their Lordships think, that any construction of this Statute, which would appropriate this fund in any other way, would be against the whole intention of the legislature. Without saying what might be the meaning of the words which I have read, especially the words "legal personal representatives," in any other case, and without reference to any other context or construction, the only question here is, what is the meaning of those words in this Act of Parliament; and we are all of opinion that they mean the executor or administrator of the Judge deceased, and that the money is to be taken as part of his general assets, and to be administered as such. That being so, the second question is, whether it was in the power of Sir John Norton to assign this sum of money. No question has been raised at all, that if it was in his power, the letter, which forms part of these proceedings, is sufficient to constitute an equitable assignment. Now we consider the £2,500 to have been part of his estate, precisely in the same light, and precisely of the same description, as if it had been a policy of assurance upon his life; that is to say, a certain sum of money to which he would be entitled, upon the contingency of a certain event; over which he had complete power of disposition by assignment in his lifetime, or by testamentary disposition, if he thought fit to exercise the power in that way. With regard to the last question, which is a question certainly which their Lordships have thought deserving of greater attention and consideration than either of the preceding points that were discussed at the bar; namely, whether this assignment is against public policy or not, we have come to the conclusion that it is not against public policy. In giving this opinion, we do not in the slightest degree controvert any of the doctrines, whereupon the decisions have been founded, against the assignment of salaries by persons filling public offices: on the contrary, we acknowledge the soundness of the principles which govern those cases, but we think that this case does not fall within any of these principles; and we think so because this is not a sum of money which, at any time, during the lifetime of Sir John Norton, could possibly have been appropriated to his use, or for his benefit, for the purpose of sustaining with decorum and propriety the high rank in life, in which he was placed in India. We do not see any of the evils, which are generally supposed would result from the assignment of salary, could in the slightest degree have resulted from the assignment of this 183 sum, inasmuch as during his lifetime his personal means would, in no respect whatever, have been diminished, but remain exactly in the same state as they were. It is for these reasons, that their Lordships are of opinion, that the judgment of the court below was erroneous, and that we are under the necessity of reversing that judgment; but being all of opinion that this was a case which it was necessary for an executor to have the judgment of a court upon, we think under the special circumstances, that the costs on both sides, both here and in India, should be paid out of the fund.1 1 "I am also of opinion, that there is nothing in the nature of the income which a Fellow of this College is entitled to, from which it can be inferred, that his income and emoluments are not assignable in equity, by reason of the uncertain amount or otherwise. The cases of assignment at law, which were cited in the argument are not applicable. "The question which remains is, whether there are any such duties annexed to the situation, or office as it was called, of a Fellow, as to make the assignment of the income contrary to public policy. The assignment may be contrary to the implied intention of the founder of the College, contrary to the spirit of the statutes, which are the exponents of the intention of the founder, and may, therefore, expose the assignor to consequences very unpleasant to himself, and very injurious to those who have dealt with him on the faith of his assignment, it may be a violation of duty to the College, and very reprehensible, without being, for that reason, void as contrary to public policy. The advantages to the Fellow which are annexed to the fellowship are very great, and when well used by a studious and well conducted Fellow, may secure to himself the means of acquiring independence, and to the world some fruits of his useful pursuits and distinction in life. But the easy duties which are annexed to it, are duties intended for the purposes and benefit of the College, and not for the public, otherwise than in a secondary and remote sense, as it is for the benefit of society that all lawful contracts are duly executed. The Fellow of a College may be summoned to attend; if he attends he may vote in the election of officers, assist in what the defendant is pleased to call, the due administration of justice between the Fellows, and in But the defendant admits, that the Office, situacarrying into due effect the statutes. tion, or post of a Senior Fellow now held by him is not an Office in any way connected with the administration of justice, or an ecclesiastical office of any nature or character, and that there is not any cure of souls attached thereto, and he not only denies that there is any provision in the statutes, rules, or regulations of the College which renders it incumbent on him to be resident in the College, but admits that if there be any such rule, it has long ceased to be or be considered binding on the Fellows. "There is nothing in this case which appears to me, in any degree, to resemble any of the cases in which assignments of income have been held void on the ground of public policy. The College may deal as the law allows them with a Fellow who has assigned his fellowship; but I am at a loss to conjecture, what special interest the public can have in the question whether Mr. Buller does or does not continue to be a Fellow : does or does not hold himself in readiness to perform such slight duties as are annexed to the benefits he was intended to enjoy. "I do not think that the public is at all concerned in the question, whether Mr. Buller continues to be a Fellow or not, whether the fellowship now occupied by him shall, at any time hereafter, be occupied by him or any other person; and I do not propose to interfere in any way with the internal arrangements of the College, with their authority over individual Fellows, or with the dividends they may hereafter apportion in respect of any fellowship. I have to consider only the dividends which they now have or hereafter may apportion to Mr. Buller. "It appears to me, that he has effectually assigned such dividends as may be appor |