1840. HILL 97. PAUL. 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 (j) 5 Wils. & S. 616. (k) 3 Shaw & Dunl. 195. case (1); 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 (o). 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 (q), 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 () 11 Shaw & Dunl. 500. (m) 12 Id. 522. (n) 13 Id. 639. (0) 14 Id. 964. (p) 4 Id. 631. (q) Dict. Dec. 1761. (r) Fac. Coll. 19 Nov. 1818. 1840. HILL 0. PAUL. 1841: Oct. 6. 1841. HILL V. PAUL. Court of Session, on the point that was argued before them; and also because I think the decree cannot be supported on another ground, which was not the subject of consideration in the Court below. The decision there was taken on the first of the preliminary defences, the other questions on the summons not being attended to. In my opinion, this trust-deed is not in its own terms sufficiently express to convey the profits of this office. By the terms of the trust-deed of 1826, the Appellant conveyed his property to the Respondent, as trustee for the benefit of the Appellant's creditors. The Appellant was at that time entitled for life to the office of keeper of the register of sasines, and his chance of possessing the whole profits was dependent on the decease of his brother and sister. They afterwards died, as did the jointkeeper, and he became entitled to all the profits. The first question we have now to consider is whether, supposing the Appellant entitled in law to assign the profits of the office, the terms of this trust-deed did or did not include those profits. In the first place, there is not in the deed any mention of these profits, or of the office itself. It seems, from what occurred in the Court below, to have been a matter of dispute whether the creditors knew that he had such an office. It is not probable that they did not know it, but that they did know it does not appear; and with regard to such a matter, it must be observed that peculiar circumstances materially affecting their situation should have produced peculiar provisions for their benefit, if such a benefit was intended to be secured. In this case, the general intent of passing all that the defender then had, or might become entitled to, did possibly exist, but there is no direct proof of such an intention; and so far as the profits of this office were concerned, there does not appear any evidence that such intention was attempted to be carried into effect. It is not in dispute that the office itself, being an office under the Crown, and an office created for public purposes, was not assignable. The question then is, whether the fees of such an office, which for the moment we will suppose to be assignable, were in fact assigned by this deed. All that could be the subject of assignment were the profits which might arise after the death of the brother and sister, who were alive in 1826. Were these profits assigned? The operative words of the assignment are, "All and sundry superiorities, lands and heritages, debts heritable and moveable, and whole goods, gear, sums of money, and effects, and in general my whole means and estate, heritable and moveable, of whatever nature or denomination, or wherever situated, presently belonging to me." If the office itself was assignable, would it or would it not pass by these terms? It is not denied that the office itself could not and did not pass by these words. But as the office did not pass, could these words be made applicable to pass the profits which thereafter might arise to the immediate holder of the office?-The very words used at the conclusion of the sentence contradict the supposition. The office itself which he then "presently" possessed, but the whole profits of which did not then "presently belong" to him, must be considered as excepted from the operation of the deed; for it was not by law assignable, which the parties to the deed must be supposed to have known. So far, therefore, it seems clear that the deed, not being capable of passing the office, had no effect in passing the profits of the office, by any direct provisions contained in it. Did 1841. HILL v. PAUL. 1841. HILL บ. PAUL. then those profits pass by necessary implication under the general trusts of the deed? It seems to me that they did not; all the trusts of the deed are inapplicable to the after profits of the office. The deed was to operate on property presently belonging to the grantor. As to the property really assigned to them, the trustees were to enter into immediate possession of it. It would be difficult to bring the after profits of the office within the terms thus used. But it has been supposed that the provisions of the deed in effect included them: it appears to me that the provisions in question have no such effect. There is following the clause I have already read, merely a clause for further assurance. If the first deed included the profits of the office, the further deed would not carry the matter beyond the first and if the first deed did not include them, they could not be affected by the confirmation contained in the second deed. The further deed is to be merely for the purpose of more effectually carrying into execution the provisions of the first deed of trust. On this part of the case, therefore, I am clearly of opinion that the decision of the Court below ought to be reversed. There is another point on which I shall address a few observations to your Lordships; but I wish it to be distinctly understood that it is not to be considered as the ground of the decision which I shall recommend this House to adopt. The point to which I am now about to refer is the legality of assigning the future emoluments of an office of this kind. This is a public office to which a large class of the subjects of Scotland must resort. The parties resorting to it not only have an interest in the regular performance of the duties of the office, but have a right of action against the holder of the office |