CHAPTER XVIII. OF MORTGAGES OF PENSIONS, SALARIES, ETC. offices. THE sale of public offices is malum in se, independently of the Emoluments statute law (a). But by a statute of Edw. VI. all assurances of of judicial any office concerning the administration or execution of justice, or any service of trust, or the receipt, control, or payment of the King's revenues or customs, or the custody of fortresses, or the clerkship in any court of record where justice is to be administered, were declared to be void, as against the person making the assurance, with an exception in favour of offices of inheritance, and of the keeping of parks or forests (b). This Act (preserving the exceptions) was afterwards ex- Pay of officers tended (c) to Scotland and Ireland, and to all offices in the gift of the Crown. of the Crown, civil, naval, and military commissions and employments under the control of the different officers of state. Another statute (d) declares to be void all assignments of and Naval and military charges on, and agreements to assign or charge any deferred pay pensions. or military reward, pension, allowance, or relief payable to any officer or soldier of her Majesty's forces, or any widow, child, or other relative of any such officer or soldier, or any person in respect of any military service. And it is provided by statute, that all assignments, sales or contracts relating to naval pensions, half-pay or allowances, by officers, seamen, or marines, or their widows, or other persons entitled to an allowance from the compassionate fund or to marine half-pay, are void (e). Bills of sale, contracts, and assignments of any pay, wages, Seamen's or allowances of money of any kind, due, or to grow due, to any wages. seaman in the service of the Crown, are also void (ƒ). (a) Stackpole v. Earle, 2 Wils. K. B. 133. (b) 5 & 6 Edw. VI. c. 16. (c) 49 Geo. III. c. 126. (d) 44 & 45 Vict. c. 58, s. 141, by which Act the similar provisions of the 47 Geo. III. sess. 2, c. 25, s. 2, are re- (e) 28 & 29 Vict. c. 73, s. 4. (f) Ibid. s. 5. See as to seamen in the Merchant Service, 57 & 58 Vict. c. 60, s. 163. Ch. XVIII. Other pensions not assignable. The following are not assignable :— Pensions granted for supporting the grantee in the performance of future services, such as the pension granted by 5 Anne, c. 4, for the more honourable support of the dignities of the Duke of Marlborough (g) and his posterity, payable out of the revenue of the Post Office; the salaries of the judges given for the support of the dignity of their office (h); the salary of a clerk of the peace (i); and, in fact, the emoluments of any public office (k); annuities pro consilio impendendo (1); full pay and half-pay of an officer (m); a retiring pension of a military officer of the East India Company, which has been held not to pass to the assignees in bankruptcy, on the ground of being a voluntary payment (n). Pensions for military service, being rendered inalienable by the recent statutes, cannot be taken in execution under 1 & 2 Vict. c. 110, ss. 14, 15, nor can a receiver of any such a pension be appointed, even though the grantee is not liable to be called into service again (o). The difference in this respect between half-pay and pensions, drawn in several decisions before the Acts (p), has ceased to be regarded. This immunity does not, however, extend to money paid in respect of commutation of retired pay (q). There is a power vested in a trustee in bankruptcy to reach the pay or salary of a military, naval, or civil officer, or a portion thereof, with the consent of the chief officer of the department (r); and half-pay, pensions, or compensation of officers, even though inalienable, may be ordered by the Court to be paid to the trustee in bankruptcy (s). The commission of an officer cannot be mortgaged or pledged (t). A voluntary allowance is not a salary or pension within the Act (u). (g) Davis v. Duke of Marlborough, 1 Swanst. 74. (h) Ib. arguendo. Palmer v. Bate, 2 Br. & B. 673. (m) Barwick v. Reade, 1 H. Bl. 627; (n) Gibson v. East India Co., 7 Sc. 73. See Exp. Hawker, L. R. 7 Ch. 214. (0) Lucas v. Harris, 18 Q. B. D. 127, C. A. See Birch v. Birch, 8 P. D. 163, a case under the Indian Pensions Act, 1871. (p) Wells v. Foster, 8 M. & W. 149; Spooner v. Payne, 1 De G. M. & G. 383; Carew v. Cooper, 4 Giff. 619; Dent v. Dent, L. R. 1 P. & D. 366; Willcock v. Terrell, 3 Ex. D. 323. (4) Crowe v. Price, 22 Q. B. D. 429, C. A. (r) B. A. 1883, s. 53, sub-s. 1. (s) Ibid. sub-s. 2; Re Saunders, (1895) 2 Q. B. 424, C. A. (t) Collyer v. Fallon, 1 T. & R. 459. (u) Exp. Wicks, 17 Ch. D. 70, C. A. ; Exp. Webber, 18 Q. B. D. 111. See Exp. Benwell, 14 Q. B. D. 301, C. A.; Re Shine, (1892) 1 Q. B. 522, C. A. The following are assignable : Ch. XVIII. Compensation to a custom-house officer for the loss of office Pensions (though revocable at the pleasure of the government) (r); pen- assignable. sion to commissioner of bankrupts (y); moneys payable to the representatives of an Indian judge, if he should die in and after six months' possession of office (z); prize money and the captors' inchoate or possible interest in it before grant by the Crown (a); a pension granted to a county court judge for past services (b); or to a judge of a Crown colony (c); and, generally, pensions of retired officers whether military or civil, granted solely for past services and not rendered inalienable by statute (d). The profits of certain hereditary or freehold offices (most of which are now abolished) are assignable (e). So also the salaries of mere secretaries or clerks receivable during the pleasure of their superiors, are not "offices" within the statute of Edw. VI. (f). pensions. Since the 57 Geo. III. c. 99, church livings, a canonry, or Ecclesiastical other ecclesiastical office, cannot be assigned (g). Nor can pen- profits and sions to incumbents on resignation of their benefices (h) be transferred either at law or in equity, or be subject to a setoff (i). But annuities by way of compensation to retiring incumbents under the Union of Benefices Act, 1860 (k), may be validly assigned (7). A receiver has been appointed of the profits of a college fellowship, on the ground that no question of public policy could interfere with the validity of an assignment thereof (m). A mortgage of the salary of a workhouse chaplain, which was paid out of local poor rates, was held to be valid (»). Alimony has been held not to be assignable (o); and the Alimony. same rule applies to permanent maintenance after divorce (p). (x) Tunstall v. Boothby, 10 Sim. 542; Exp. Corser, 11 Jur. 212. (y) Spooner v. Payne, 1 De G. M. & G. 383. (z) Arbuthnot v. Norton, 5 Moo. P. C. 219. (a) Alexander v. Duke of Wellington, 2 R. & My. 35. (b) Willcock v. Terrell, 3 Ex. D. 323. (c) Exp. Huggins, 21 Ch. D. 85, C. A. (d) Lucas v. Harris, 18 Q. B. D. 127; Willcock v. Terrell, sup.; Manning v. Mullins (1898), 2 Ir. R. 34. (e) Drummond v. Duke of St. Albans, 5 Ves. 433. (f) Aston v. Gwinnell, 3 Y. & J. 136. (g) Post, p. 457. (h) 34 & 35 Vict. c. 44, s. 10. (i) Gathercole v. Smith, 17 Ch. D. 1, C. A. (k) 23 & 24 Vict. c. 142. (1) McBean v. Deane, 30 Ch. D. 520. (m) Feistel v. King's Coll. Cambridge, Ch. XVIII. Allowance to The allowance made in lunacy to a committee, though made indirectly for his benefit and without liability to account, is committee of nevertheless an allowance made to a person in a fiduciary position for a particular purpose, and may be revoked at any time so far as not actually paid; no valid mortgage can accordingly be made of the allowance or of any arrears of it (9). lunatic. Customs A mortgage by a member of the Customs Annuity and Benevolent Fund of two-thirds of his portion payable at his death, was held to be valid where the mortgagees had been admitted as nominees by the directors (r); but the member has only a power of appointment over the sum insured, and no right of property in it; if no nominee is admitted, the sum must go according to the rules (s). (q) Re Weld, 20 Ch. D. 451, C. A. (s) Re Philips' Insurances, 23 Ch. D. 235, C. A. CHAPTER XIX. OF MORTGAGES OF DEBTS AND LEGACIES. SECTION I. OF A MORTGAGE OF DEBTS. i.-What Debts may be Mortgaged.-All debts, secured and Debts may be unsecured, may form the subject of mortgages. Unsecured mortgaged. debts can rarely afford a satisfactory security; but it not unfrequently happens that a mortgage is itself transferred by way of security by the mortgagee, thus giving rise to what is called a sub-mortgage (a). A debtor may assign future accruing payments to be made to Future debts. him under an engagement with a third person (6). But a mortgage of the future gross receipts of a business is not good against the title of the trustee in bankruptcy by relation (c). A bill of sale of all goods which should be brought upon the premises or should be in any other place in the debtor's possession, does not include the book debts (d). A mortgage of all present and future personalty was held invalid as to the future property (e). This was founded on Belding v. Read (f). But the authority of these cases is much shaken by the decision of the House of Lords in Tailby v. Official Receiver (g), where their lordships, while declining to adjudicate upon the question, which was not before them, of a charge including all the property whatever of the person giving it, held that an assignment by way of security for a loan of all the book debts due and owing, or which might during the (a) See as to sub-mortgages, post, P. 848. (b) Pooley v. Goodwin, 4 A. & E. 94. See Exp. Moss, Re Toward, 14 Q. B. D. 310, C. A. (c) Exp. Nicholls, 22 Ch. D. 782, C. A. (d) Browne v. Fryer, 46 L. T. 636, C. A. (e) Re D'Epineuil, Tadmore v. D'Epineuil, 20 Ch. D. 758; Re Kelcey, (1899) 2 Ch. 530. (f) 11 Jur. N. S. 547. (g) 13 App. Ca. 523; cf. Re Jukes, (1902) 2 K. B. 58. |