Painter v. Dram

The opinion of the court was delivered,

by Strong, J.

The first question raised by this record is, whether the contract between Simon Drum and his father, for the breach of which the judgment was recovered, was a void contract, in consequence of the provisions of the Act of Congress of Juno 7th 1832. That act was one conferring pensions, and it contains the provision “ that the pay thereby allowed shall not be in any way transferable, or liable to attachment, levy, or seizure, by any legal process whatever, but shall enure wholly to the personal benefit of the officer, soldier, &c.” It may be conjectured that Congress proposed to secure two objects by this provision; first, relief of the pension department from any obligation to any other than the pensioner personally; and, secondly, putting the bounty of the government into the hands, and under the disposition of the person for whose benefit it was intended. The contract proved in this case was, in substance, that Simon Drum should procure the pension certificate for his father, in consideration whereof the father promised to give him one-half. The question now is, whether such a contract was prohibited by the Act of Congress, not whether it was conscionable. Now it is clear that unless it can be made out that it was either in law or equity a transfer of the pension, it cannot be maintained that it was prohibited. Obviously it was no legal transfer. It did not purport to be. When it was made, the pension had not been granted, the certificate had not been issued. Nor was the contract in terms an executory contract, to assign the pension, or any part of it, after it had been granted. The pension was referred to only as a measure of compensation for the service rendered in obtaining it. The title was left in the pensioner, and if he did not pay the stipulated price for procuring it, the only remedy of Simon Drum was an action upon the contract, in which the certificate would be only evidence to show that it had been obtained, and to furnish the measure of damages. The contract was not, therefore, a transfer of the pension prohibited by the Act of Congress. Such has been the construction given to the act' in the courts of New York: Jenkins v. Hooker, 19 Barb. 435. There an instrument of writing was held valid and enforced, by which Hooker, after reciting that he was entitled to an addition to his pension, under the Act of June 7th 1832, and that Jenkins had undertaken at his request to prosecute his claim to the increased pension, promised in consideration thereof that in case Jenkins should obtain the increase he would give him one-third. It Avas ruled that this did not amount to an assignment either legal or equitable; that Jenkins Avas a mere ' creditor of Hooker, not an owner of the pension.

This disposes of the only debatable question in the case. The second and third assignments of error have no substantial foundation. It AYas not error in the court to refuse to charge the jury, that they must be satisfied from the clearest and most satisfactory evidence, that Philip Drum intended by the deed to defraud his creditors. The jury were instructed that before they could find against the deed, they must be satisfied of the fraudulent intent of the grantor, and they Avere told that fraud was not to be presumed. No more should have been asked. It Avas for the jury to say what weight they Avould attach to the evidence, hoAV far it Avas convincing, and it Avas their duty to consider it all. Nor is the ansAver to the third point of the plaintiff in error obnoxious to just criticism. Doubtless the fraudulent intent must have existed at the time when the deed was made, or the deed could not be avoided, and so the court said, but the intent at that time was deducible from previous acts and declarations, — at least they tended to throw light upon it.

We spend no time in proving that the record of the conviction of Simon Drum AYas inadmissible. Its irrelevancy is quite too obvious.

We have thus noticed all the assignments of error. They are directed mainly against the charge, but notwithstanding the sharp criticism to which it has been subjected, we think it was not erroneous. The fault, if any, was not in the charge, but in the verdict.

Judgment affirmed.

Read, J., dissented from the construction given to the Act of C\o.n crrcACc