G. Browne. The pension of a military or naval officer is given to 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.1 Contra this case. Ref 273 Lluding case STATE, ex rel. STATE BANK, v. HASTINGS ing SUPREME COURT OF WISCONSIN. 1862. By the Court, COLE, J. [Reported 15 Wis. 75.] Aug 3.1861 deliverain judge and order on Stall Treas مد is pay his quarterly This is a motion to quash an alternative allay which 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 Caw a judge Point, August 3, 1861. On the first day of October next, pay the sign his Iowa County Bank or order, six hundred and twenty-five dollars, int becomes salary before 1 In Re Robinson, 27 Ch. D. 160, the Court of Appeal was inclined to think that imony was not alienable.. "We are familiar with instances of allowances which are steed yes. was not alienable in the case of men, such as the half-pay of the officers in the army and 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. 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 (Hartley v. Tapley; 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 which 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 his 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 or 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 when 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, had he not assigned it. Why then should he not be required by the same proceeding to pay the fund to the person whom Judge 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.1 Right to bring a kill in Equity is not assignable B. Champerty. PROSSER v. EDMONDS. EXCHEQUER. IN EQUITY. BEFORE LORD ABINGER, C. B. 1835. [Reported 1 Y. & C. Ex. 481.] THE LORD CHIEF BARON.2 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, 4747. 2 The case is sufficiently given in the opinion. may be said that the assignment of a mortgaged estate is nothing more than an assignment of a right to file a bill in equity. But the equity of redemption arises out of an interest, though only a partial interest. Courts of law and equity treat the mortgage as a mere security, and there is an interest left in the mortgagor, which he may assign. But, in a case where a party assigns his whole estate, and afterwards makes an assignment generally of the same estate to another person, and the second assignee claims to set aside the first assignment as fraudulent and void, the assignor himself making no complaint of fraud whatever, it appears to me that the right of the second assignee to make such a claim would be a question deserving of great consideration. My present impression is, that such a claim could not be sustained in equity, unless the party who made the assignment joined in the prayer to set it aside. In such a case a second assignment is merely that of a right to file a bill in equity for a fraud; and I should say that some authority is necessary to show that a man can assign to another a right to file a bill for a fraud committed upon himself. I own, however, that in the present case there is considerable difficulty arising from the reversionary interest which Robert Todd had to assign; and the question is, whether the bill is so framed as to entitle the plaintiffs to any equity on that subject. With respect to the other points which have been raised, I think that William Todd, having assigned his interest to his brother, is not a necessary party to this suit. As to Jones, who was a party to the deed of assignment, there is some doubt. Upon the whole, if I were called upon to decide this case now, I should decide against the demurrer on the narrow ground that there was, at the time of the assignment to the plaintiffs, a subsisting interest in Robert Todd, which did not pass to Edmonds. But the case deserves further consideration. The LORD CHIEF BARON. The testator, after bequeathing certain annuities to various persons, directed that his real and personal estate should be sold by his executors, Edmonds and Hughes, and divided into three parts. His daughter, the wife of Edmonds, was to have one part; and, from the remaining two parts, she was to take £10,000, and the residue was to be divided between his two sons, Robert and William Todd; and he states, as his reason for giving his daughter a larger portion, that he had made advances to his two sons in his lifetime. He then specifies certain real estates, of which he gives the right of pre-emption to William Todd, and other estates, of which he gives the right of pre-emption to Robert Todd; and then he gives his daughter a right of pre-emption of any part of the residue; so that, with the exception of the two parts specifically appropriated to William and Robert Todd, if they chose to purchase them, his daughter had a right, if she chose, to purchase the whole. |