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DENT v. DENT.
COURT OF PROBATE AND DIVORCE. 1867.
(Reported L. R. 1 P. & D. 366.] The wife had obtained a decree of judicial separation in this case, and an order had been made for the payment of £180, being the amount of her taxed costs, by the husband.
Dec. 18. Pritchard moved for a writ of sequestration, on affidavits that the costs had not been paid.
G. Browne, for the respondent, opposed the motion on two grounds: first, that a writ of sequestration could not be granted until after an attachment had issued ; and, secondly, that the only property of which the respondent was possessed was his half-pay as a retired officer of the Indian navy, and was not liable to sequestration.
Pritchard, in reply. It has been the practice of the court to issue writs of sequestration without a previous attachment: Clinton v. Clinton, Law Rep. 1 P. & M. 215. The income of the respondent is a pension, and not half-pay.
The JudgE ORDINARY. I think the court has power to grant a sequestration, although no attachment has been issued. The motion must stand over, in order that further affidavits may be filed informing the court of the nature of the respondent's income.
Jan. 29. Pritchard renewed the motion, upon an affidavit setting out that information had been received from the Secretary of State for India to the effect that the respondent had formerly been a lieutenant in the Indian navy, wbich is now abolished, and that his pension was solely in respect of past services, and he was not liable to be called on to serve again. The distinction between half-pay and a pension for past services is well understood, and has frequently been acted on. Half-pay being partly in respect. of future service cannot be sequestered for reasons of public policy ; but a pension solely for past services is liable to sequestration.
tioned to him, and that there is no sufficient reason to induce this court to abstain from giving effect to such assignment, and therefore I must order, that, for the purpose of paying what is due to the plaintiff, the sums of money which have already been or may hereafter be apportioned to Mr. Buller in respect of his fellowship, shall be applied in or towards satisfaction of the plaintiff's demand ; and the necessary accounts must be taken.
“I do not mean to direct any account of the income and emoluments of the College but only an account of the sums of money which have now or hereafter may be by the College appropriated or apportioned to Mr. Buller; and I will either appoint a receiver of such sums as may be hereafter appropriated, or adopt any other mode of securing the plaintiff's interest which may be more satisfactory to the College." Per LORD) LANGDALE, M. R. in Feistel v. King's College, Cambridge, 10 Beav. 491, 506G. Browne. The pension of a military or naval officer is given to him not only in respect of past services, but also to enable him to maintain his rank and keep up his position in society. It is entitled to exemption from sequestration on the same grounds as half-pay.
The following authorities were cited ; Daniel's Chancery Practice, p. 948, 4th ed. ; Wells v. Foster, 8 M. & W. 149; 10 L. J. (Ex.) 216; McCarthy v. Goold, 1 Ball & Beat. 387; Knight v. Bulkeley, 4 Jur. N. S. 527, and 5 Jur. N. S. 817; Spooner v. Payne, 2 De G. & Sm. 439; 1 De G. M. & G. 383.
Cur. adv. vult.
The JUDGE ORDINARY. This case stood over that I might look into the authorities cited, with reference to the sequestration of a sum of money payable to the respondent, who was formerly an officer in the Indian navy, by way of pension for his past services. The authorities show that a distinction is drawn between money which is received as half-pay, and in respect to some extent of future services, and money which is received as a pension solely in respect of past services. The distinction appears always to have been preserved, and the line between the two classes of income has been very definitely drawn in the cases cited. The respondent's income is one of the latter class, and the sequestration must, therefore, issue.
STATE, ex rel. STATE BANK, V. HASTINGS.
[Reported 15 Wis. 75.) By the Court, COLE, J.? This is a motion to quash an alternative writ of mandamus. The substance of the relation is, that Judge M. M. Cothren, on the 3d day of August, 1861, executed and delivered to the Iowa County Bank the following instrument: “ $625. Mineral Point, August 3, 1861. On the first day of October next, pay the Iowa County Bank or order, six hundred and twenty-five dollars, in full for my quarter's salary commencing on that day, and oblige M. M. Cothren. To S. D. Hastings, State Treasurer of Wisconsin : and that the Iowa County Bank, for value, indorsed and delivered the same to the relator, The State Bank. The relation states that the quarter's salary of Judge Cothren became due on the 1st of October last, and was certified by the secretary of state to the respondent, the state treasurer; that the same remains unpaid, and that the respondent has neglected and refused to pay the amount thereof to the State Bank, though he has sufficient funds in his hands applicable to that purpose. The writ is issued to compel the state treasurer to pay to the State Bank the sum of six hundred and twenty-five dollars. It is admitted that the state treasurer refused to pay the sum to the State Bank on the instrument above described, for the reason that Judge Cothren wrote him a letter previous to the first day of October last, forbidding its payment.
1 In Re Robinson, 27 Ch. D. 160, the Court of Appeal was inclined to think that alimony was not alienable. “We are familiar with instances of allowances which are not alienable in the case of men, such as the half-pay of the officers in the army and navy, which are given them in order that they may maintain themselves in a sufficient position in life to enable them to be called out for future service if required. Although alimony is not the same thing, it is governed by the same principle. Alimony is an allowance which, having regard to the means of the husband and wife, the court thinks right to be paid for her maintenance from time to time, and the court may alter it or take it away whenever it pleases. It is not in the nature of property, but only money paid by the order of the court from time to time to provide for the main. tenance of the wife, therefore it is not assignable by the wife.” Per Cotton, L. J.
? The case is sufficiently stated in the opinion.
The single question arising upon the motion is : Does the relation state such facts as show that the State Bank is entitled to the amount of money, and to a writ of mandamus to compel the respondent to pay it over on the order?
It is conceded on both sides that the order is not in the nature of a bill of exchange, and that the legal incidents of negotiable paper do not belong to it. The order is drawn upon a particular fund, and its payment depended upon such contingencies as to deprive it of that character. What then is the nature and effect of the order ?
In support of the motion it is argued that the instrument is merely a written authority given to the Iowa County Bank to draw for Judge Cothren his quarter's salary falling due on the 1st of October, 1861, with the power of substitution, but that this authority was revocable at pleasure, and did not operate as an assignment to the holder, of the particular fund upon which it was drawn. We deem this an erroneous view of the nature and effect of the order. We think it was an assignment by Judge Cothren of the quarter's salary in question to the Iowa County Bank, and that the money became payable to such bank, or to its order, according to the terms of the instrument. This position is fully sustained by the cases to which we were referred on the argument by the counsel resisting the motion to quash, as well as the following additional authorities : Morton v. Naylor, 1 Hill, 583; Peyton v. Hallett, 1 Caines, 363; McLellan v. Walker, 26 Maine, 114; Legro v. Staples, 16 Maine, 252; Nesmith v. Drum, 8 W. & S. 9; Blin v. Pierce, 20 Vermont, 25 ; Brooks v. Hatch, 6 Leigh, 534; Mulhall v. Quinn, 1 Gray, 105; Hartley v. Tapley, 2 id. 565 ; Taylor v. Lynch, 5 id. 49; Lannan v. Smith, 7 id. 150. The quarter's salary of Judge Cothren which became due on the 1st of October, 1861, was a possibility coupled with an interest, and as such capable of being assigned. Brackett v. Blake, 7 Met. 335. Chancellor Kent says, that it is sufficient that the thing contracted for has a potential existence, and that a single hope or expectation of means founded on a right in esse, may be the object of sale, as the next cast of the fisherman's net, or fruits or animals not yet in existence, or the good will of a trade. 2 Kent, Lecture 39, page 602, 8th ed. The future earnings of a party to a contract may be assigned (Hurtley v. Tupley; Taylor v. Lynch; Lannan v. Smith, supra); or rents to become due (Morton v. Naylor, supra); while in Brackett v. Blake, and Mulhall v. Quinn, the court say: “ If a party is under an engagement for a term of time, to wbich a salary is affixed, payable quarterly, especially if he has entered upon the duties of his office, although at any time liable to be removed, he has an interest which may be assigned.”
We cannot see why this doctrine is not strictly applicable to the case at bar. It is true we were referred to some English cases, which held that the assignment of the pay of officers in the public service, judges' salaries, pensions, &c., was void, as being against public policy ; but it was not contended that the doctrine of those cases was applicable to the condition of society, or to the principles of law or of public policy in this country. For certainly we can see no possible objection to permitting a judge to assign bis salary before it becomes due, if he can find any person willing to take the risk of his living and being entitled to it when it becomes payable.
Assuming that the instrument operated as an assignment of the salary to the Iowa County Bank or its assignee, still it is insisted the writ should be quashed on several grounds.
First, it is said the order should be presented to the secretary of state, to be audited and allowed. This we deem unnecessary. The quarter's salary due Judge Cothren on the 1st of October, 1861, was undoubtedly audited - if such a ceremony can be necessary - and certified to the treasurer as stated in the relation, This is the invariable practice of the state auditor. The order merely showed that this quarter's salary belonged to the State Bank. And this order was undoubtedly all the voucher receipt which the treasurer might require, to show that he had paid the quarter's salary to the person to whom Judge Cothren had sold and assigned it, and who was authorized by Judge Cothren to receive the same.
Again, it is said that the proceeding by mandamus is peculiar, and that the writ will not lie wlien the party applying for it has any other adequate remedy. This is undoubtedly a correct proposition of law.
. But what remedy has the State Bank against the respondent? It is his duty to pay over money on appropriations to the party entitled to the same.
He would probably have paid over to the State Bank the quarter's salary on this order, had he not been forbidden by Judge Cothren to do so. Still we hold that Judge Cothren has no right to stop the payment of the salary, having sold and transferred his interest in the fund to another. It then becomes the duty of the treasurer to pay it to the State Bank. It would not be contended that the treasurer would not be compelled by mandamus to pay the salary to Judge Cothren, bad he not assigned it. Why then should he not be required by the same proceeding to pay the fund to the person whom Judge Cothren has clothed with his rights over it and authorized to receive it?
The motion to quash the writ must be denied.
If the respondent desires to put in an answer, he can do so by filing the same within twenty days.
PROSSER v. EDMONDS.
(Reported 1 Y. & C. Ex. 481.] The LORD CHIEF BARON.? The point which, in this case, presents the greatest difficulty, is that which relates to the interest which Robert Todd had in the annuity fund, and which he assigned to these plaintiffs. No complaint is made in the bill of the misapplication of that fund, but it is insisted that the plaintiffs have a right to have their interest recognized distinctly in the reversionary portion of that fund. I incline to think that that interest is sufficiently disclosed to make the demurrer to the whole bill bad.
With respect to the question as to the validity of an assignment of a right to file a bill in equity, I must distinguish between this sort of case and the assignment of a chose in action or equity of redemption. It
1 See Brackett v. Blake, 7 Met. 335, accordingly. The conclusion reached in the case of State v. Hastings, and Brackett v. Blake, is declared in Billings v. O'Brien, 45 How. Pr. 392, 402, “erratic and unsatisfactory, and furnishes no substantial ground for rejecting the authority of the long line of decisions referred to, that establish the invalidity of the assignment of the accruing salary of a public officer, as against public policy."
“Any pledge, mortgage, sale, assignment, or transfer of any right, claim, or interest in any pension which has been, or may hereafter be, granted, shall be void and of no effect ; and any person acting as attorney to receive and receipt for money for and in behalf of any person entitled to a pension shall, before receiving such money, take and subscribe an oath, to be filed with the pension-agent, and by him to be transmitted, with the vouchers now required by law, to the proper accounting officer of the Treasury, that he has no interest in such money by any pledge, mortgage, sale, assignment, or transfer, and that he does not know or believe that the same has been so disposed of to any person.
“No sum of money due, or to become due, to any pensioner, shall be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, whether the same remains with the Pension-Office, or any officer or agent thereof, or is in course of transmission to the pensioner entitled thereto, but shall inure wholly to the benefit of such pensioner.” – U. S. Rev. Sts., $$ 4745, 47 47..
2 The case is sufficiently given in the opinion.