case smooth Gomez against graham fillip and gold in chancery easter term Geo a  major of a fort borrow l of b for secure to b a annuity of l during a s life  assign over his pay of S adais with a power to redeem b show this assignment  to c the payagent who refuse to take notice thereof wherefore b bring his bill  against a and c and decree that the pay shall be secure to b but that c as  agent be not bind to take notice but from the time of the fill the bill  because of the inconveniency the general and governor of novan Scotia where  the fort jay be make a party but bill dismiss as to he the defendant Graham be  fortmajor of Annapolis royal in novan Scotia in America with the pay of eight  shilling adais and be in want of money borrow the sum of two hundred and  twentyfive pound of the plaintiff and make a assignment of his pay to he to  answer a annuity of thirty pound to the plaintiff for Mr Graham life by  quarterly payment with a power however in Mr Graham to redeem in two year time  upon give six month notice the plaintiff show this assignment to the defendant  gold who be agent for the payment of all the officer salary in novan Scotia  who refuse to take notice of it or to pay any part of the annuity upon which  Mr Gomez bring this bill against Graham gold and also against Philips who be  general or governor of novan Scotia and the prayer be to have the annuity pay  by the defendant Philips and gold out of Graham pay from the time the  assignment be show to gold or that Graham may pay the two hundred and  twentyfive pound and interest and be oblige to redeem the annuity Mr Ord  walker and Murray for the defendant argue that the case of the plaintiff do  not deserve any countenance in equity for the person who assign his pay be  only fortmajor of a town in novan Scotia with a salary of eight shilling adais  only and if a officer of so small a allowance be to assign his pay liable to a  considerable annuity he will not be able to keep himself and to answer the  character of his office which will be prejudicial to the public utility beside  he may have make assignment of the same pay and the agent ought not to keep a  book to enter these assignment in nor to take upon he the office of chancellor  in case there be several assignment of the same pay to determine which have  the priority and if he pay the money wrong to be liable to a repayment upon  that account in all the great company as the SouthSea company if a proprietor  of stock assign it or part of it to another and the assignee bring his  assignment to the proper officer he take no notice of such assignment for they  will not load their book with such multiplicity of assignment as may be make  and if in such case the officer pay the stock to the person in who name it  stand and the assignee bring his bill if he be to be liable to pay this again  to the assignee upon the foot of notice it will subject the officer to the  great peril imaginable Murray for the defendant argue and say the only  question be whether the bare hand or instrument to pay public money to soldier  be to take notice of assignment of soldier pay so as to be modern report  liable to a repayment if he refuse to pay to the assignee and pay to the  person who be entitle by his post to receive in point of law choose in action  can be assign and the assignee can recover they no otherwise against the agent  than by sue in the defendant Graham dame and in assignment of choose in action  there be general a covenant to sue in the assignors name that this court  relieve assignee of choose in action only in particular circumstance a term  Rep a for there must not be only a valuable consideration but also no mixture  modern report er p of fraud and if any inconvenience arise in the relieve  against the rule of commonlaw this court will not do it and here in relief to  the plaintiff the public utility will be damage as be show above he then cite  the case where the great company will not take notice of assignment of stock  that if a officer have a right to assign his pay every common soldier have a  right to do the same and it will be endless for a paymaster to enter all  assignment and to be liable to repayment if he do not pay the assignee that  this annuity be a anticipation of the officer pay for it be a annuity  Chargeable on the salary for the life of the officer and if every common  soldier can make such last charge on his pay before it accrue due be must  starve and be quite disable to fulfil his duty or to answer the demand of his  country that by the custom of the army the agent be not oblige nor ought to  pay any salary but to the soldier himself that by the late Act of parliament  of mutiny and desertion it be enact that if any agent paymaster or clerk do  wilful detain any soldier pay for the space of one month after it become due  he shall forfeit his office be incapable of hold any other and pay one hundred  pound that the pay these assignment to stranger and not to the soldier may  perhaps be construe to be a wilful detain that this bill especial as to Mr  Philips ought to be dismiss with cost for he be general and governor of novan  Scotia but receive no public money nor pay any that although be name the agent  yet it be not as deputy but name he mere as a officer have power to name other  subordinate officer Hardwicke Lord chancellor as to Mr Philips who be general  and governor of novan Scotia there be no ground to make he a defendant to this  bill for it be not pretend that the pay come to his hand it be issue through  the hand of the paymastergeneral to the agent and the legislature in the  statute of mutiny and desertion which direct the pay of soldier take notice of  the paymaster agent or clerk in express word but there be no notice at all of  the general or governor in case of this kind it will be very mischievous if  bill be to be entertain against general of regiment upon assignment make of  the pay of any officer and that they shall be affect by notice when there be  not any proof of notice and not pretend that any pay modern report go through  their hand therefore the bill as to he must be dismiss with cost as to the  defendant Graham and gold the agent there have be several objection make and  principal upon the consideration of public utility it have be say that these  sort of assignment ought to be void but this be a defence which come much  better from the mouth of gold and Graham who grant the assignment and receive  a valuable price for it this objection undoubted deserve to be consider I wish  practice of this kind be to be avoid for there may be many inconvenience arise  to the public by grant anticipation of pay before it be due or make annuity  out of it especial by lesser officer where their pay be scarce a maintenance  and thereby disable they from serve their country yet it be very difficult to  tell in what place to draw the line to restrain these assignment for as there  be on one hand great inconvenience so on the other such assignment have their  advantage for where a officer have a family be may not be able to maintain it  without such assignment or some other kind of draught upon the agent for they  may want personal credit and in case where a officer may want a pretty large  sum for public occasion as to buy himself tent and bed to incamp abroad be may  not be able to buy without these sort of security upon his pay if I shall  restrain these assignment general I shall only make a monopoly of these sort  of security to agent and upon such a decree consequence of a worse kind will  arise than where such assignment be make upon good and full consideration  therefore I shall be very cautious in lie down any such rule I wish any  evidence have be give that it be the custom of the army that such assignment  be not good and that the agent never take any notice of they or pay they for  certain these assignment be not restrain by anything in the mutiny and  desertion bill for the agent there if be wilful detain any pay for one month  after it shall be due be subject to very hard penalty but his pay these  assignment to the assignee and not to the soldier himself be no wilful  detainer for the soldier by his deed have consent that the pay shall be  withhold from he and pay to a three person modern report er p as to the  practice of the army there be no proof but I believe both in the fleet and the  Army that it be the custom every day to do the same thing ticket of seaman and  letter of attorney to receive sailor pay in the fleet be in daily use until a  late Act of parliament to restrain such sailor ticket and this statute be  evidence of the general custom before and if the legislature see the same  inconvenience arise from the assignment of soldier pay they will restrain it  and it be not for this court to do it against the universal practice where  such assignment be make upon valuable consideration and without fraud suppose  a officer want money and borrow it of his friend and draw a bill upon the  agent to pay to Mr a or order so much out of his grow subsistence modern  report these bill have be common and upon the acceptance of the agent several  action have be bring upon the custom of merchant in the king bench and the  question have be whether such draught have be bill of exchange and they have  be hold not to be so a Jossceline v lassere Mod a so also to pay out of grow  rend be not bill S of exchange for it be uncertain from the accident of have  tenant and the quantum of the rend when it will answer the draught but though  such note be not bill S of exchange yet if they be accept the party by change  his action have a remedy against the acceptor though he can declare upon the  custom of merchant and if the party have a remedy upon the agent acceptance of  these bill why be be to be remediless upon a assignment which be as good a  conveyance of the property as a bill accept if these assignment be to be  disallow officer in many case will not be able to live to lie down a rule  against they where there be no fraud will be lie down a restraint against a  general practice and if the inconvenience be very great of these assignment  the legislature will prohibit they as it have do seaman wage if there have be  any proof of fraud in the transaction or any special inconvenience attend this  single case or that it be against the practice it shall have have its weight  therefore upon the whole I be of opinion that this assignment of pay to secure  a annuity be good and that it be not to be set aside another question arise in  relation to the defendant gold how far he be to be affect by notice of this  assignment it be prove that this assignment be bring to gold the agent who say  he will have nothing to do with it and the plaintiff now insist that as this  notice affect the agent he ought to have stop the pay and ought from that time  to be consider as a trustee for the annuitant pro tanto and that if he pay the  whole salary to Graham he pay it in his own wrong and ought to repay it to the  annuitant and assignee the counsel for the defendant gold insist on the other  hand that gold may refuse pay or take notice of this assignment that the  public company as the bank the eastindia company and south sea company will  not accept of assignment of stock or part of stock or bill S draw upon they by  people who have stock for it will be inconvenient to load the public book with  such multiplicity of matter for a man may draw a hundred bill S for one  hundred pound and therefore they will pay no money but upon transfer and I  shall be cautious in oblige agent to take notice of these assignment for there  may be several assignment of the same pay and I will not put agent to the  difficulty of determine the priority of such assignment for if a agent  determine wrong he will be liable to a account and repayment to the proper  person entitle and therefore I do declare that gold the agent be not to be  affect by this kind of notice suppose a officer draw a note on the agent in  the form of a bill modern report of exchange to pay so much to a b or order  out of his grow subsistence and the agent refuse to accept it will any court  of law or equity say he be oblige to stop the pay in his hand it will be very  mischievous to man public paymaster take notice of such assignment therefore  be be not to be affect upon the head of notice in the present case until his  be serve with a subpoena of the bill or until his own answer and his lordship  decree the master to take a account of what become due to the defendant Graham  from the defendant gold for his pay from the time of the put in the answer of  the defendant gold and let the defendant gold pay to the plaintiff so much as  shall be find due to he for his arrear of the say annuity out modern report er  p of what shall be find to have become due to the defendant Graham for his pay  on the account before direct and let the defendant gold continue to pay to the  plaintiff the grow payment of the say annuity of thirty pound ayear quarterly  out of the pay of the defendant Graham as far as shall come to his hand as  long as the defendant Graham shall be entitle to such pay and the annuity  shall continue and in case the defendant Graham shall be mind to redeem this  annuity pursuant to the clause in the assignment for that purpose let he be at  liberty to apply to the court for direction touch such redemption and let the  bill be dismiss as against the defendant Philips c his lordship say it have be  determine in this court upon great consideration that a officer pay may be  seize upon a sequestration a on the authority of this case it be decide in the  court of common plea that although a officer halfpay be not assignable at law  yet the use of it may be assign in equity and that when so assign the assignor  can maintain a assumpsit for it as money have and receive to his use Stuart v  Tucker Bl Rep but in the matter of Kennedy a bankrupt it be hold in December  that a officer halfpay be not assignable cook b l notorious facts S p Cathcart  v Blackwood in the house of lord February in the case of Flarty v odlum it be  decide that the halfpay of a officer be not the subject of sale and therefore  that creditor can compel he to include it in his schedule under the lord Act  term Rep nor be the fullpay of a officer assignable Berwick v read h Bl Rep  and it make no difference whether such full or half pay be actual due and  receivable at the time of the assignment or not lidderdale v Montrose term Rep  it have be hold also that the king may at any time stop the pay of a officer  in the army by signify his pleasure that it shall be no long pay Macdonald v  steel sit after Hilary term Geo peak n p a