and at such prices, as the said trustee acting for the time shall think fit;" with power also to sell the wood growing upon the lands, and to grant all needful deeds and dispositions. A provision was afterwards made for the case of the trustee not having "sold or disposed of the lands and others above conveyed, or such part thereof as may be necessary for the payment of my debts." The deed contained the following covenant for further assurance :-" And farther, I bind and oblige myself, and mine aforesaid, to grant and to execute, at any time when required, such farther deed or deeds as may be judged necessary by my said trustee or trustees, or by a majority in value of my said creditors, for the more effectually carrying the purposes of the present trust into full and complete execution." The cause came in the first instance before Lord Jeffrey, as Ordinary, who, after hearing counsel for the respective parties, pronounced the following interlocutor, adding an explanatory note: "10th March 1837. The Lord Ordinary having heard the counsel for the parties on the preliminary defences, repels the defence or objection to the title of the pursuer, founded on the allegation that the trust-deed in his favour did not convey any of the profits or emoluments of the office then vested in the trustee, which occurred subsequently to the date of that trust-deed: and, 2do, in respect that all the other defences pleaded as preliminary, either depend on disputed matters of fact or are involved in the merits, reserves and supersedes the consideration of them till the cause comes to be discussed on the closed record: and, in respect the defenders state they do not mean to acquiesce in this judgment, finds them liable in expenses, allows 1840. HILL บ. PAUL. an account to be given in, and remits the same to the auditor of Court, for his taxation and report." To this judgment the Lord Ordinary added the following" Note.-The question of title is not without difficulty. But the Lord Ordinary is of opinion, that the defender Hill, being at the date of the trust vested in a life office, which he executed by deputy, and which yielded large though fluctuating annual profits, is to be regarded as the owner of a life annuity, which, he apprehends, would clearly have been carried, by the general conveyance of his whole moveable property and estate of every description, to his trustee. That he was under a previous obligation to account for a part, or even the whole of these profits, to his sisters during their lives, would not bar the effect of this conveyance, as the radical right to them was still in his person, as incident to the office itself, of which he was the only holder. If such previous obligation was onerous and unchallengable, it was still but a temporary burden upon his primary right; and that being onerously conveyed to his trustee, such conveyance would take effect as soon as the burden was worked off, just as the conveyance of a fee, under the burden of a liferent, would vest the radical right in the disponee from the first, though its actual engagement must be postponed till the liferent was run out. If the whole profits were not so pledged to the sisters, or if their right was not onerous, the form of the action seems sufficient to make the defender Hill still account for them to the pursuer." The Lord Ordinary then adverted to matters which did not come under discussion in the appeal, and proceeded thus:-" As to the objections raised on the terms of the Act 49 Geo. 3, c. 126, as to the sale or brokerage of offices, the Lord Ordinary is satisfied that it has no application to such a case as the present. The provisions in the 11th section of that Act are plainly referable only to the case of a party privily stipulating for a share (or the whole) of the profits of an office, which, by his resignation or instrumentality, is obtained or secured for another, and not to that of one who, like the present pursuer, is seeking to vindicate for their true owners, profits actually drawn by persons, who, in law and justice, are bound to account for them to others. At all events, this is a question upon the construction of a public statute, which must form, if insisted on, an important part of the discussion on the merits of the case, and could not with any propriety, be disposed of as a preliminary and exclusive plea." Reclaiming notes having been presented by the Appellants against the interlocutor to the Second Division of the Court of Session, orders were pronounced, directing the parties to be prepared with special cases on the question, "whether to any, or to what effect and extent, the emoluments of the office referred to, were, or could be, carried by the trust conveyance to the pursuer libelled on :" and these cases having been prepared, and the question debated, the Court pronounced the following judgment upon the 15th of November 1838:-"The Lords having resumed consideration of this note, with the minutes of debate and the other proceedings, adhere to the interlocutor complained of, and refuse the desire of the notes, reserving all questions as to expenses. This judgment, and the interlocutor of the Lord Ordinary which it affirmed, formed the subject of the appeal. The Lord Advocate and Mr. Knight Bruce, for the 1840. HILL บ. PAUL. 1840. HILL V. PAUL. Appellant:-There are no words in this deed applicable to the office, nor do any sentences in the deed which describe the property conveyed apply to the office or its profits: nor is the intention to pass everything whatever, belonging to the grantor, so clear on the face of the deed itself as to force the House to include this office or its profits among the things conveyed for the benefit of the creditors. The office is not conveyed by the deed, even could such a conveyance have been legal. But it could not have been legal: neither the office itself, nor the profits attached to it, can be conveyed for the benefit of creditors. The 49 Geo. 3, c. 126, which extends to all parts of the United Kingdom, prevents such a conveyance: and the exceptions contained in the 11th section of that statute (a) do not include a case like the present. The authorities of Wilson v. Falconer(b), Parsons v. Thompson (c), and Palmer v. Bate (d), show that arrangements of this kind between private persons in relation to public offices are invalid. In Hunter v. Gardner (e), Lord Chancellor Brougham expressed his strong doubts in this House whether the half-pay of an officer could be made the subject of an (a) By which it is provided, "that nothing in the recited Act (5 & 6 Ed. 3, c. 16) or in this Act contained, shall extend to any annual reservation, charge, or payment made, or required to be made, out of the fees, perquisites, or profits of any office, to any person who shall have held such office, in any commission or appointment of any person succeeding to such office, or to any agreement, contract, bond, or other assurance made for securing such reservation, charge, or payment provided always, that the amount of such reservation, charge, or payment, and the circumstances and reasons under which the same shall have been permitted, shall be stated in the commission, patent, warrant, or instrument of appointment of the person so succeeding to and holding such office, and paying or securing such money as aforesaid." (b) Dec. 7, 1759; Morr. 165. (c) 14 Bl. 322; and see the notes there, p. 327. (d) 2 Brod. & Bing. 673; 6 Moore, 28. (e) 5 Wils. & Shaw, 618, et seq. assignment. The full-pay of a military officer cannot be assigned, Barwick v. Reade (f); and in Flarty v. Odlum (g), and Lidderdale v. The Duke of Montrose (h), the same had been held with regard to half-pay. The principle of the rule is stated by Lord Eldon, in the case of Davis v. The Duke of Marlborough (i), where his Lordship said, "A pension for past services may be aliened; but a pension for supporting the grantee in the performance of future duties is inalienable." And in that case, the estates entailed by Parliament for the support of the dignity were allowed to be aliened by a tenant for life for the period of his own life; but a pension also granted for that purpose, but payable out of the Post-office revenues, was not allowed to be so treated. The Appellant could not, by law, aliene this income. But even if he could, no intention to aliene it is apparent on the face of the deed. The words themselves clearly do not include the emoluments of the office, they are expressly directed to something else; and the general tenor of the deed, so far from referring to the office, points directly to lands and money, and such personal chattels as are assignable at law, and may be made the subject of arrestment and poinding under the law of Scotland, and could be recovered in an action. The profits of this office could not be made the subject of such a process, could not be recovered, and cannot, therefore, be held to be included in this assignment. The interlocutor of the Lord Ordinary, and the judgment of the Court affirming it, cannot therefore be sustained. The Attorney-general and Mr. Anderson, for the (ƒ) 1 H. Bl. 627. (g) 3 Term Rep. 681. VOL. VIII. X (h) 4 Term Rep. 248. 1840. HILL v. PAUL. |