of the said pay, half-pay, salary, emoluments, or pension as shall be specified in such order and consent, shall be paid to the said assignee or assignees, until the said Court shall make order to the contrary." The questions for the opinion of the Court are, first, whether, notwithstanding his said insolvency, the said C. H. Payne is by the means aforesaid still entitled to the said annual sum of 1991. so awarded to him as aforesaid, for such compensation as aforesaid. Secondly, whether, by the means aforesaid, the said J. Spooner, as such assignee of the said insolvent, C. H. Payne, as aforesaid, became entitled to the said annual sum of 1991. so awarded to the said insolvent as aforesaid, for such compensation as aforesaid. Whitehurst, for the plaintiff.-The assignees are entitled to the annuity. Prior to the 1 & 2 Will. 4, c. 56, under which the insolvent was appointed, the Lord Chancellor directed a commission of bankruptcy to such persons as he thought fit. That statute did not deprive the Lord Chancellor of the power to issue a commission, but, by the 14th section, limited his choice of commissioners to certain persons, namely, barristers, solicitors, and attornies practising in the counties belonging to the several circuits. Therefore, before the repeal of that statute, the insolvent was not an officer in any department of the Government, but a person to whom the Lord Chancellor directed a commission or fiat for a particular and limited purpose. Then, the 5 & 6 Vict. c. 122, s. 58, merely provides a compensation for the loss of fees as a commissioner. The Court called on Watson, for the defendant.-Both questions should be answered in favour of the defendant, on the three following grounds: First, the annuity is within the exception of the 1 & 2 Vict. c. 110, s. 56, for the employment comes within the general terms, "otherwise employed or engaged 1849. SPOONER บ. PAYNE. 1849. SPOONER V. PAYNE. in the service of her Majesty, in any civil office or other department whatsoever." Under the 1 & 2 Will. 4, c. 56, s. 14, fiats were directed to commissioners in rotation, and they acted as judges of a court of record. This office was a portion of the law department of the state, and no part of the pension can be paid to the assignees without the sanction of the Lord Chancellor, as chief officer of that department. In Ex parte Battine (a) it was held, that a pension granted for past services as advocate of the Admiralty, might be appropriated for payment of creditors under the Insolvent Act, 7 Geo. 4, c. 57, s. 29, with the consent of the Lords of the Admiralty. That decision proceeded on the ground that the insolvent was a person who had been employed in the service of his Majesty in a civil office, and was in the enjoyment of a pension under a department of his Majesty's Government. Secondly, this annuity cannot, from its very nature, pass to the assignees. It is granted by order of the Lord Chancellor, subject to the condition precedent, that the insolvent proves to the accountant in bankruptcy, by affidavit, certain facts. That condition cannot be performed by his assignees; so that this is in truth a personal annuity, and inalienable: Davis v. The Duke of Marlborough (b). Thirdly, the case falls within the principle of the decisions as to half-pay. Where a pension is granted, as well for future as for past services, it is not assignable either at law or in equity, for public policy requires that public servants should retain the means of a decent subsistence: Wells v. Foster (c), Stone v. Lidderdale (d). Here the public have an interest in maintaining the insolvent in a position to take another public office at any time, so that his annuity may cease. Whitehurst, in reply.-No question is submitted as to the mode of obtaining payment of the annuity, but only as to the right of the assignee to receive it. Wells v. Foster (a) 4 B. & Ad. 690. (c) 8 M. & W. 149. is distinguishable, for in that case the pension was granted with an express understanding that the party should again take office if called upon. The 36th, 37th, and 48th sections of the 1 & 2 Vict. c. 110, which relate to "vesting orders," will include this annuity, unless excepted by the 56th section, which it is not. POLLOCK, C. B.-We will certify to the Vice-Chancellor our opinion that the defendant is not still entitled to the annual sum of 1997. awarded to him for compensation, and that all the defendant's right to it vests in the plaintiff as his assignee. I am not disposed to embarrass myself with any question as to how the right is to be enforced, whether by action or by what other proceeding. We are only asked to say, whether the title to the annuity passed to the assignee; and unless the 56th section of the 1 & 2 Vict. c. 110, applies, it did so pass. Now, that clause contains an exemption in favour of any person in the service of her Majesty, in the Customs or Excise, or any civil office or other department whatsoever, or being otherwise in the enjoyment of any pension whatever, under any department of her Majesty's Government. Is, then, that which the defendant enjoys a pension consequent on his having been employed in the civil service of her Majesty? It appears to me nothing more than a compensation given to him in consequence of his having been in a situation to derive emolument from a certain existing state of things which is altered by the public law of the land. He was one of certain persons to whom commissions were directed by the Lord Chancellor, and who was removeable at pleasure. I think that is not an office in the service of her Majesty, and that the pension was merely given as a compensation, in order that the alteration in the law, though advisable, might not be injurious in a pecuniary point of view. Such being the case, it does not fall within the principle of the decisions as to half-pay; but the annuity formed part of 1849. SPOONER V. PAYNE. 1849. SPOONER V. PAYNE. the defendant's estate and interest, and so passed to his assignees. ALDERSON, B.-I am of the same opinion. The question is, whether this was a personal annuity, and therefore inalienable. It seems to me that it was not. As to the other part of the case I entertain no doubt. ROLFE, B.-This annuity certainly passed to the assignee, unless protected by the 56th clause of the 1 & 2 Vict. c. 110. It is obvious that section applies only to persons in some sense or other in the service of her Majesty or the East India Company. Mr. Watson contends, that this case comes within the exception, since officers appointed by the Lords of the Admiralty are within it; and he relies on Ex parte Battine. Now, in that case, application was made to the Lords of the Admiralty, and they sanctioned an appropriation of the pension. The insolvent contended, that the Court had no power to appropriate the pension, because it would not pass under the 11th section of the 7 Geo. 4, c. 57, neither was it within the proviso of section 29. The Court of King's Bench decided, that it was within the proviso, but did not express any opinion as to whether it would pass under the 11th section. Wells v. Foster does not apply. That was a case in which the party obtained, in the strictest sense, a pension for services under the Crown; and there is no doubt that, under the Insolvent Act, the Lords of the Treasury might have ordered a given portion to be paid to his creditors. But the question there arose on an assignment by deed; and the point considered was, whether a pension, or recompense for past services given propter dignitatem, and on the express understanding that the party was to serve again if called upon, could be assigned by him. The Court decided rightly, that it was not assignable, and on the same ground as the halfpay of an officer. In this case, the insolvent was not in the service of the Crown, but a person to whom fiats in bankruptcy might be directed; and this pension was in the nature of the purchase-money of his right (such as it was), under an existing state of things, to have fiats directed to him. No question is submitted to us as to the Lord Chancellor's order; but possibly it means, that the pension shall be paid subject to proof of the conditions specified, and that the party shall be at liberty to make an affidavit as one mode of proof. PLATT, B.-It seems to me, that this was not a mere personal annuity, but that the title of the insolvent was complete for all purposes, and passed to his assignees. A certificate, in conformity with the above opinion, was accordingly sent to the Vice-Chancellor. 1849. SPOONER บ. PAYNE. CASE-TH BOOSEY V. PURDAY. June 5. A foreign author residing abroad, who composes a work abroad, and sends it to this country, where it is first published under his authority, acquires no copyright there -The declaration stated, that, at the time of the committing by the defendant of the grievances thereinafter mentioned, the plaintiff was, and from hence has been and is, the proprietor of the copyright in certain books, being musical compositions-ten airs in the opera of "La Sonnambula" of Bellini-which said several books had each of them been first printed and published in that part of Great Britain called England, and which in. Neither had each of them been first published within twentyeight years then last past, and which said several rights were subsisting at the several times of the mitting by the defendant of the said grievances, yet the defendant, not being the proprietor of the said copyrights, &c., heretofore, after the passing of the 5 & 6 does a British subject to whom copy- assigned by the com- foreign author such work is &c.; gain any such right. But, assum ing that a foreign author and his assigns to have by law a copyright where the author means to publish contemporaneously in England and abroad, he or his assigns are not disentitled to copyright by the actual publication in one place before the other, on the same day. VOL. IV. L EXCH. |