The record-union., 1898-07-01

the Peace of any township, city and
county, or city within the same county,
at his written request, and while so
acting shall be vested with all the pow
ers of the Justice for whom he holds
court. In which case the proper entry
| OF proceedings before the attending
Justice, subscribed by him, shall be
made in the docket Of the Justice for
whom he so holds court
1t was undoubtedly the duty of the
Justice before whom the action was
originally brought to have acted
squarely upon the motion, either deny
ing or granting it; but, as the case was
/ appealed to this court upon questions
OF both law and fact and was there
fore tried anew here, it is just as we'll
| that the question as to the jurisdiction
of the lower court be disregarded and
| the merits of the controversy passed
upon.
| Counsel representing both parties to
this action submitted the case upon the
briefs filed in the case Of John P. Bris-
sci VS.. the Southern Pacific Company
and C. Heisen an opinion in which was
| filed in this court in January of this
year. Counsel for plaintiff in his argu
ment, and from the fact of his relying
upon the briefs filed in the Brissel
/ case, holds that there is a strong an
! alogy between the latter case and the
one at bar While the court, in its
opinion in the Brissel case, used rather
strong and broad language concerning
the question in general Of assignments
| of future earnings, yet. upon an in
vestigation and comparison OF the
| facts of the two cases, it will be OBJ
! served that there is wide difference
| between them.
The main ground on which the court
held, in the case of Brissel, that the
assignment by the latter of his future
| earnings to Heisen was void, was that
! Brissel was a public officer and that
it is the rule in this State that assign
ments of the salary or emoluments Of
a public officer, made when they were
not already earned, are void because
against public policy; and, if they were
void for this reason, they were SO for all
purposes. That is to say, it was held
by this court that when the assign
ment was made by Brissel to Heisep,
| it was made in contemplation of his
then present employment, to wit: that
of a public officer and that having
vacated that office and some time there
|
a private and not a public nature, the
assignment being void alb iniiio,
could not be revived and applied to an
employment not contemplated by the
parties at the time of the execution
of the assignment.
The facts of the case at bar, it will
BE- noticed, are different from those in
the Brissel case Here the plaintiff was
4 in he nj nf lt
the time of the transaction with Heisen
There was a period of ten months after
this transaction during which the plain
tiff was not employed by the railroad
company. 1t has often been held, and
seems to be the rule, that, in cases
of this character, it is the duty of a
court of equity to step in and uphold
the assignment 1t has been held that
courts of equity will support assign
nents, not only of chooses in action, but
of contingent interests and expectations
and of things which have no present
| actual existence, but rest in poSSibil-
| ity only, provided the agreements are
| fairly entered into and it would not
be against public policy to uphold them.
| (Field VS., Mayor, etc, of New York, Il
n. Y, 1I9. and 81 Am Dec, 435). In
| Edwards VS.. Peterson 6 Am. ST Rep,
20D an assignment of wages, under the
following circumstances, was sustained
| When the assignment was made, the
aSsignor was in the employment of the
| respondent steamboat company, but
was discharged the next day. The as
! signment covered wages to be earned
in the employment of the steamboat
company between the day of it's date.
October 14th, and October 1st following.
and was recorded as required by the
statutes of New York. Both the as
signor and the steamboat company eX-
pected the formers services would be
! again required by the latter, and that
his employment would then begin In
, truth it did begin November 1st and
continued until after April 1st
| The assignor was decreed an insol-
vent debtor January 21st, and on that
day the assignee demanded from the
| steamboat company the wages to be
earned thereafter during the time COW
cred by the assignment. The wages
| We're earned and amounted to more
than the debt secured by the assign
ment. The court, in that case, as al
| ready stated. upheld the assignment,
Saying that the transactions throughout
We're open and aboveboard, not tine
tured with fraud and not against pub
lie policy. Judge Story, in the case of
Mitchell VS.. Winslow, I'd Story, $50,
lays down rule which seems to have
been very generally followed by all
chancery courts in this country In his
opinion he uses the following language:
1T seems to be a clear result of all
the authorities that, whenever parties
by their contract intend to create a
positive lien or charge. either upon
real or personal property, whether then
owned by the assignor or contractor or
not or any personal property, whether
it is then in esse or not, it attaches in
equity as a lien or charge upon the
particular property as soon as the as
signor or contractor acquires a title
thereto, against the latter and all per-
sons asserting a claim thereto under
him, either voluntary, or with notice or
in bankruptcy"
Courts of equity support and give
effect to assignments of things which
have no present actual existence but
rest in mere possibility, not as a pres
ent positive transfer operative in pre-
senti, but as present contract, to take
effect and attach as soon as the thing
comes in esse." Bibend VS.. London and
Liverpool Fire and Life Insurance
Company Goth Cal, 1S). Again:
Whenever a person by a contract in
tends to create a lien upon personal
/ urOpprtv To ba acu,tico1 bx, b;,.. +bo