profits which should from time to time remain, after answering and satisfying the trusts and purposes aforesaid, unto the said T. W. Vaughan, his executors, administrators, or assigns, for his or their proper use and benefit. And for the considerations aforesaid, and for the better enabling the said G. Palmer and W. Loaden, their executors, &c. to recover and receive the said income, emoluments, produce and profits therein before thereby assigned or intended so to be, the said T. W. Vaughan did make, nominate, and appoint the said G. Palmer and W. Loaden, and the survivor of them, his executors, &c. his attornies and attorney, in the name of him the said T. W. Vaughan, to ask, recover, and receive the said income, emoluments, produce, and profits thereinbefore assigned, or intended so to be, and every or any parts thereof, of and from the persons liable to pay the same, and in default of payment thereof to sue forth and prosecute any action or suit, or to use such other ways or means for enforcing payments of the same, which to the said G. Palmer and W. Louden should seem meet, and to give receipts and discharges for the same. And the said T. W. Vaughan did thereby covenant that his executors, &c. should not, nor would, at any time thereafter, by himself or themselves, or by any agent or agents, receive or take into his or their possession, the said income, emoluments, produce, and profits, or any part thereof, or revoke or make void the powers and authorities therein before contained, or any of them, or do any act whereby the said G. Palmer and W. Loaden should be in anywise hindered or obstructed from receiving or recovering the same income, &c. The questions for the opinion of the Court were Whether the assignment of the income, emoluments, produce and profits of the office or place of clerk of the peace for Westminster, after deducting the salary or allowance of the deputy for the time being, of the defendant T. W. Vaughan, in the said office, by the said defendant T. W. Vaughan to the plaintiffs, G. Palmer and W. Loaden, by the inden : 1821. PALMER v. BATE. 1821. PALMER v. BATE. ture, dated the 25th January, 1806, is a good and effectual assignment, and valid in the law? And whether the said G. Palmer and W. Loaden could' legally and of right receive and take the income, profits, emoluments and produce of the said place or office, under, and according to the true intent, meaning and effect of the said deed of assignment, upon and subject to the trusts, intents and purposes therein expressed and declared, of and concerning the same? The case came on for argument, in the course of the last Term, when Mr. Serjt. Lawes, for the plaintiffs, submitted, that the assignment in question was valid. That there was no authority expressly in point, although there have been some decisions with respect to the sale of offices of different descriptions. The deed is legal on the face of it, as it is founded on a good consideration, namely, an antecedent debt, and is also grounded on policy and reason. It cannot be contended that the office is not one of trust, as well as of a public nature, and that it touches and relates to the execution and administration of justice; or that it is saleable, and does not fall within the meaning of the 2d and 3d sections of the statute 5 & 6 Edw. 6. c. 16 (a): but the assignment (a) By which it is enacted, that "if any person bargain or sell any office, or deputation of any office, or any part of them, or receive or take any money or other profit, or take any promise, agreement, covenant, bond, or assurance, to receive or have any money or profit for any office or deputation, or any part of them, or to the intent that any person should have any office or deputation, or any part of them, which office shall in anywise touch or concern the administration or execution of justice, or the receipt of any of the king's revenue, or which shall concern any clerkship in any court of record, wherein justice is to be ministered; every such person that shall bargain or sell any of the said offices or deputations, or that shall take any money or profit, &c., shall not only lose all his right and estate in the office, or the gift or nomination of the office, but also such person that shall give any money, or make any promise or assurance for the offices, &c., shall be adjudged a disabled person to have and enjoy the said office, &c." And by the third section it is further enacted, that “all such bargains, agreements, and assurances, shall be void." OF THE SECOND YEAR OF CEO. IV. in question does not embrace the whole of the profits resulting from the office, but only so much as from time to time remain, after fully satisfying the salary of the deputy, and all other expences attending the execution of the office. It is necessary in the first place, to consider the nature of its creation, as well as the rights and duties attached to it. It is regulated by the statute 37 Hen. 8. c. 1. s. 3. (a), and 1 Will. & Mary, stat. 1. c. 21. s. 5. (b), by the first of which, the custos rotulorum is authorized to appoint clerks of the peace, and by the latter, it is required that they should be resident in the county of which they are appointed, but in both these statutes it is expressly provided, that the offices may be exercised by deputy. [Mr. Justice Burrough. By the 37 Hen. 8, the deputy must be instructed in the laws, and admitted or approved of by the custos rotulorum.] In the case of The Queen v. The Clerk of the Peace of Cumberland (c), it was decided, that the office of the clerk of the peace is a freehold; and in The King and Queen v. Evans (d), it was determined that he could not be removed but for a misdemeanor. So, in Harcourt v. Fox (e), it was held, that he was not even removeable by a succeeding custos rotulorum ;-on the ground that he had a freehold in his office. A clerk of the peace may therefore assign or (a) By which it is enacted, that "every custos rotulorum shall appoint clerks of the peace, and grant the office to such able person instructed in the laws as shall be able to exercise the same, to hold the same dur ing the time that the custos rotulorum shall exercise the office of custos rotulorum, so that the said clerk demean him in the office justly; and it shall be lawful to every such grantee of the said clerkship to occupy the office, by himself or by his deputy instructed in the laws, so that the deputy be admitted by the custos rotulorum.” (b) By which it is enacted, that "the custos rotulorum, or other person to whom it shall belong to appoint the clerk of the peace, shall, where the office of clerk of the peace shall be void, nominate a sufficient person residing in the county or place, to exercise the same by himself or his sufficient deputy, for so long time as such clerk of the peace shall well demean himself in his office." (c) 11 Mod. 80,- -(d) 12 Mod. 13.VOL. VI. -(e) Id. 42. 1821. PALMER v. BATE. dispose of the profits of such office, and more particularly so, if part of them be reserved to defray the expences of it, and satisfy the salary of the deputy. The fulfilment of the duties of the office by deputy, being expressly provided for, it cannot be said that public justice will suffer from the assignment of such profits. Here, it appears that the deputy was approved of, and no inconvenience could result from the assignment, if he did not faithfully execute the duties of his office. The case of Godolphin v. Tudor (a), recognizes the right of a principal to dispose of the profits of a public office; for it was there decided, that where an office is within the statute 5 & 6 Edw. 6, and the salary is certain, if the principal make a deputation, reserving a lesser sum out of the salary, it is good. So, if the profits be uncertain, arising from fees, if the principal make a deputation, reserving a sum certain out of the fees and profits of the of fice, it is equally good. It appears in this case, that the salary of the deputy was to be deducted in the first instance. In Stuart v. Tucker (b), it was resolved, that though a military officer's half pay is not assignable at law, yet the use of it may be assigned in equity; and that when it is so assigned the assignor cannot maintain assumpsit for it, as money had and received to his use. There are several other cases where deputies have not been appointed, in which it has been decided, that either officers in the army, or under government, may assign the use of the pay resulting from their respective situations. Here, the deputy was fully competent to fulfil the duties of the office, and his salary was to be provided for out of the profits. The assignment of the residue, therefore, is immaterial, as it can have no tendency to interrupt the administration of justice. Ecclesiastical persons having freeholds, may assign over the profits of their benefices, subject only to make a provision for their curates. That bears (a) 1 Salk. 468. 3 Salk. 251. S. C. 6 Mod. 234. Blac. 1137. (b) 2 Sir Wm. a strong analogy to the present case, as, by the terms of the deed, the salary of the deputy was to be provided for in the first instance. Mr. Serjt. Lens, contrà.-The provision in the deed as to the salary of the deputy is wholly beside the present question, nor does it turn on the fact, whether the clerk of the peace had such deputy or not. It might be as well contended, that a person filling the situation of recorder, might appoint a deputy, as the office of clerk of the peace equally concerns the administration and execution of justice. It has been admitted in the argument for the plaintiffs, that it is not saleable, and it follows as a matter of course, that it cannot be pledged indefinitely; or, in other terms, that the party holding it must be altogether restrained from assigning it. The assignment in question is tantamount to a sale, and whether a deputy had been appointed or not, it is the duty of the principal to see that the office be properly executed, and not barter or pledge it for any sum that might be offered him. If he cannot sell, neither can he transfer the profits to a trustee for his use, but here he assigned all the profits which might arise to him in respect of his office, after deducting the salary of his deputy for the time being, for the purpose of paying certain debts before owing by him. The office, therefore, is substantially no longer his, but rests in those persons to whom its produce is assigned. If the deputy were to become insolvent, there would be no person to perform the duties of the office, and consequently there would be a hinderance of public justice. So, if he were to die, the trustees, to whom the profits were assigned, could not act, neither could they sell them for any price. The deed therefore is void for want of consideration. Independently of this, however, sales of offices of this description are expressly prohibited by statute, and by the policy of the law it is extended to assignments also, for in the cases of 1821. PALMER t. ВАТЕ, |