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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
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
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 at- . tached 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(6), 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."
(6) Dec. 7,1759 ; Morr. 165. (d) 2 Brod, & Bing. 673; 6
(c) 14 Bl. 322; and see the Moore, 28. notes there, p. 327.
(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 reve. nues, 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 (5) 1 H. Bl. 627.
(h) 4 Term Rep. 243. (g) 3 Term Rep. 681.
(0) 1 Swanst. 79. VOL. VIII.
Respondent:--The words in the deed may not enable the Respondent ultimately to recover in this action; but that is not now the question. Whether he can maintain the action is at present the point in discussion; and to enable him to do that, these words are amply sufficient. The profits of the office, if not conveyed in direct terms, are conveyed by necessary implication. The terms of the deed are most general and comprehensive in their nature, and primâ facie give the Respondent title to all the sources of income enjoyed by the Appellant. Hunter v. Gardner (j) is an authority for the Respondent; for it shows that in cessio bonorum, the assignment of part of the profits of the office of collector of customs could be made. It is admitted in this case itself, that there may be a trust of part of the profits of the office; for such a trust was created, and has been acted on in the instance of the sister of the Appellant. Such a trust existed up to the time of her death; and if there can be a trust for a member of the family, surely there may be a trust for the benefit of creditors. There is a great difference between the law of England and the law of Scotland on this subject, and the English cases are therefore inapplicable here: but even the English cases-take Palmer v. Bate for instance-only show that the whole profits of the office cannot be assigned ; they do not show that an assignment of a part is bad. The creditors therefore may be entitled to maintain their suit for a part; for how much may be discussed afterwards ; but the suit itself is maintainable. There are many cases in Scotland in which an assignment of part has been held good. Sloan's case (k), which was that of the stipend of a clergyman; A. B.'s
case ((); A. B.'s case (m); and Gaillie's case (n)-all three being cases of officers in the army-are to this effect: and so is the Rev. D. Harris's case (0). Admitting, therefore, for the sake of argument, that no such assignment can take place by the law of England, it is clear that by the common practice of the law of Scotland, constantly recognised and acted on in the Courts there, such an assignment is perfectly valid. And in Clark's case (p) the Court took into consideration all the circumstances of the parties, and dealt with the pay of the officer differently, because his wife had a separate income; though as to that income his jus mariti was excluded. There is no restraint even of that kind in the law of Scotland as in the law of England on the assignment of personal income. In Mingay's case (9), and in Calder's case (r), the jus mariti itself was held adjudgeable. Even the English cases, however, are subject to this remark, that they are cases of half-pay of officers; respecting which Lord Kenyon said in Flarty v. Odlum (s), that “ an officer had no certain interest in his half-pay, for the King may at any time strike him off the list.” That cannot be said of this office, which is granted for life, and the duties of which do not require that the officer should receive the emoluments in order to enable him to perform the duties, for those duties may be performed by deputy.
The Lord Chancellor :-My Lords, I have considered this case with much anxiety, because I do not concur with the opinions of the Judges of the