and aD;other, Adm'r, etc.!
(OlrcuitUourt,iIJ.]). NWJYO'1'k. June 4, 1886.}
CoNFLIOT OF TO COLLECT A LEGACY ON SHARBI -MADE IN MAINE-SUIT TO ENFORCE, BROUGHT IN NEW YORK.
An agreement was entered into in· the state of Maine between plaintiff. a resident of the state of New York, and defendant, a resident of Maine, whereby plaintiff, in corlsideration of prosecuting defendant's claim to a certain legacy, was to receive one-third of what money defendant might recover. A B.tatute of the state of Maine makes criminal the act of makin.v; an agreement to prosecute a suit on The suit was brought in the state of New York, where .such agreementsa.re legal. Held, that the validity of the contract was to be determined by the law of Maine, and that the effect of the above statute of Maine was to reJ;lder the agreement void. Whether New York could be held to be the place of performance of this agreement, g'!UB1'6.1
Action in Equity for an AllComiting. Frank E. BJ,ackwell, plaintiff in person. Stanley, Clark tt Smith, for defendants.
BENEDICT, J. The plaintiff's right to recover in this action depends upon the validity of an agreement made between him and the defendant Charles S. Webster, whereby, in consideration of services to be performed by the plaintiff as. attorney in prosecuting the defendant Webstees claim to a legacy of $10,000, left a deceased daughter by the last will and testament of her uncle James Brady, one·third of the money that the defendant Webster might recover under said will, as heir at law of his daughter, was assigned to the plaintiff. At the time of the making of this agreement the plaintiff was a resident of the state of New York; the defendant Webster a resident of the state of Maine. The agreement was entered into in the state of Maine, and there it was reduced to writing, and executed. At that time, as now, there was in force in the state of Maine a statute providing that "any person agreeing to prosecute or defend a suit at law or equity upon shares shall be punished by a fine not exceeding one thousand dolhus, nor less than twenty dollars, or by imprisonment not more than one year;" and one of the questiona presented for decision here by the defendants is whether the of this statute of Maine is to render void the agreement upon which the plaintiff bases his right to recover. . \ In determining this question it is to be observed that the act made criminal by the statute of Maine is not the act of prosecuting a suit
BLACKWEI.L 17. WEBSTER.
on shares, but the act of making an agreement to prosecute a suit on shares. It is also to be observed that the statute is not confined to agreements respecting suits to be prosecuted in the courts of Maine, but includes all agreements to prosecute a suit on shares, without regard to the place where the suit is to be instituted. Its plain object is to prevent the making of agreements of the character described, within the state of Maine. It is also to be observed respecting the agreement in question here that it contains no language limiting its operationto the prosecution of suits outside the state of Maine, but included suits instituted in the state of Maine as well as elsewhere. It is, however, true that the circumstances attending the making of the agreement show that the object of the agreement was to procure the institution of a snit in New York; that a suit in Maine was not contemplated, and' all the services rendered by the plaintiff in pursuance of the agreement were performed in New York. Upon the facts, the plaintiff, in opposition to the contention of the defendant, insists that his agreement was an agreement to be performed in New York, and therefore ,is to be judged according to the law of New York, and not according to the law of Maine. Upon this question my opinion is that the validity of the agreement in guestion is to be determined by the law of Maine, and that the effect of the statute of Maine, already referred to, is to render the agreement void; for the plaintiff, when he entered into the agre'ement in question, did an act made criminal by the law of the place where the act was done. The statute of Maine forbade the doing' in the state of Maine precisely what the plaintiff did when he agreed to prosecute Webster's suit on shares. As soon as the agreement was made, the plaintiff became liable to indictment in the courts of Maine for making the agreement, and to such an indictment it would have been no answer to say that he contemplated doing other acts in New York in accordance with the agreement. A criminal act can never be the foundation of a lawful agreement. The agreement was void at its inception, because the making of such an agreement'was made criminal by law. For this reason the agreement could not be enforced in a court of Maine, and, if not enforceable in Maine, it is not enforceable elsewhere. Says the supreme court of the United States in Coppell v. Hall, 7 Wall. 549: "The principle to be extracted from all the cases is, that the law will not lend its support to a claim founded upon its violation." So, also,the court of appeals of New York in Hyde v. Goodnow, 3 N. Y. 269, says: "Assuming that the contracts in question had been made in Ohio, and that by the laws of that state such contracts are declared void, the courts of this state would be bound also to declare them void, though by their terms they were to have been perf()rmed here, and though,if made here, they. would haye beenvalid. ,. But the plaintiff contends that this contract was lawfulbeoause the place of performance was in New York. But it seems to me to be plain that, inasmuch as the act of making the agreement could
not lawfully be done in Maine, the circumstanoe that other aots were intended to be done in New XOl'kin pursuance of the agreement oan· not render lawful the aotthat was done in Maine. In' such a case as this there is no room to apply the fiction of the law that the place of performance of a oontract is to be deemed the place of making it. Here the question of the illegaUty of the agreement arose before any. thing was, done in New Yor.k, .because of the character of the agree. ment, and not, because of the character of acts intended to be per. formed in pursuance of the agreement. The plaintiff, for what he did in performance of his agreement within the state of New York, oould not be indicted in. Maine, but for whab he did in Maine he could be there indicted, and thatacUs the foundation of his claim to reo oover in this action. He is asking the law to enforce a olaim founded on a violation of the law. It is upon this point that I base my de. cision, and I find nothing in any case cited, including Pritchardv. Norton, 106 U. S. tliatshould compel a different oonclusion. But it may be added that it is far fNm clear that New York oan be held to be the plaoe of performance of the agreement in question. As executed in Maine, the agreement constituted a present assign. ment, then and there made by of an interest in a claim then belonging to him, a oitizen of Maine. The plaintiff was to be paid one·third of such sum as might be received by Webster by virtue of the will.. A reception of money by Webster, before any division with the plaintiff, was clearly contemplated, and there is nothing whatever to indioate thatsucih division was to be made in New York. The situs of Webster's pel'sonal property is Maine, and what the agree· ment provided for is a division of a portion of his property. It seems _ difficult, therefore, to hold that New York was by the agreement made the place of performance. My deoree, therefore, is that the plain. tiff cannot recover, and his action is accordingly dismissed. . Inasmuch as no appeal can be taken from my decree, I have de· layed promulgating ,this opinion in order to submit it to Mr. Justice BLATCHFORD, when holding conrt in this distriot, and, having so sub. mitted it, I am authorized by him to say that he conours therein.
CHASE and others.
(Distriot (Jourt, N. D. New York. January 28, 1886,
POST-OFFICE-MoNEY-ORDER DEPARTMENT-EMPLOYMENT OF CLERKS-POWEB .OF POSTMASTER.
A postmaster has no authority to employ clerks to assist him in the moneyorder department, and to pay them out of government funds in his hands, . without the authority of the postmaster lteneral.