from the person at whose request it was performed, and who has had the benefit of it. As where a person enjoy

ex

resolution for the payment of any commission, upon the moneys disbursed by the defendant for the said board; and that the claims for commissions which he now makes, had never been sanctioned or settled by the said board; that it is not competent for him now to set up the said claim for commissions against the claim of the United States, for which this suit is brought—which instructions the court refused to give. Whether the first instruction asked on the part of the United States ought to have been given, must depend upon the defendant's appointment as secretary, and the ex tent of his duties under that appointment. The court was requested to instruct the jury, that if the defendant had accepted the appointment on the terms mentioned, he was entitled to no compensation beyond his salary of 250 dollars, for any services performed by him for the board. The second instruction asked, involves the inquiry whether some order, or resolution of the board, for the payment of commissions was not indispensably necessary to entitle the defendant to the allowance claimed by him. [The case may, in reference to this point be referred to in another connection, but it has no immediate bearing upon the present object.] It is admitted on the part of the United States, that the defendant's being secretary of the board, forms no objection to his performing other services not included in his duty as secretary, and receiving a compensation therefor in the same manner as any other person might. The terms on which the defendant accepted the appointment of secretary, being to execute such duties, relative thereto, as should be required of him by the board; it becomes proper to examine how the board considered the appointment, and what duties were required of him as secretary. It is proper here to inquire, how the secretary of the navy, as one of the commissioners stood in relation to the other members of the board.

"It is evident from the manner in which this fund was created, and the purposes and objects to which it was applied, that the general and active superintendence over it belonged appropriately to the secretary of the navy. Mr. Southard, [secretary of the navy,] in his deposition states that he was, by the direction of the board, and by the previous practice and usage, acting commissioner of the fund, and attended to all matters connected with it. But when any new arrangements were to be made, or money to be expended in a new object, he consulted with, and had the approval and authority of the whole board; and all his acts were considered as approved and sanctioned by the board. With respect to the 125 dollars claimed for six months salary, [in bringing up and arranging the records of the board, antecedent to the defendant's appointment as secretary,] Mr. Southard is very explicit. This allowance, he says, was made for extra services, and related to a time previous to his [the defendant's] appointment; and that the allowance had the approbation of the board. It is not perceived what possible objection can exist against his being allowed this stipulated sum.

ing an office in the customs, employed another to procure the sale of it, undertaking to pay him a proportion of the

Whether or not it was more than a just compensation for his services, is a matter which this court cannot inquire into.

"With respect to the commissions, Mr. Southard says, that subsequent to the appointment of the defendant as secretary, the commissioners were enabled by appropriations, and collecting money belonging to the fund frem various sources, to proceed to apply the funds to the establishment of navy hospitals as required by the act of congress. That these funds were placed in the hands of the treasurer of the United States, as the treasurer of the commissioners; and that in collecting and disbursing the fund, it was found indispensable to have an agent who should attend carefully to it, and be responsible to the board. That this did not belong to the duties of the secretary. But that it was thought best to give the agency to him on account of his acquaintance with every part of the interest of the fund, and his fitness to discharge the duty. That he was appointed the agent with the understanding that he should receive compensation in the mode, and according to the practice of the government in other similar cases. That he is under the impression that this was to be a per centage on the money disbursed; and that he is also under the impression, that he did, by the authority of the board, allow one or more of the accounts presented by the defendant in conformity to the facts and principles he has detailed. From this testimony it is very certain that Mr. Southard considered the agency of the defendant, in relation to the fund, as entirely distinct from his duty as secretary, and for which he was to have extra compensation. And it is to be fairly collected from this deposition, that all this received the direct sanction of all the commissioners. But, whether it did or not, it was binding on the board; for the secretary of the navy was the acting commissioner, having the authority of the board for doing what he did, and his acts were the acts of the board in judgment of law. It was, therefore, an express contract entered into between the board or its agent, and the defendant, and it was not in the power of the board after the service had been performed, to rescind the contract, and withhold from the defendant the stipulated compensation.

"The instructions given to the jury are as follows: If the jury believe from the evidence, that the regular duties to be performed by the defendant as secretary to the commissioners of the navy hospital fund, at the stated salary of two hundred and fifty dollars per annum, did not extend to the receipt and disbursement of the fund; that the duty of receiving and disbursing the fund was required of, and performed by him as an extra service, over and above the regular duties of his said appointment; that it has been for many years the general practice of the government, and its several departments to allow to persons, though holding offices or clerkships, for the proper duties of which they receive salaries, or other fixed compensation,

purchase-money, it was determined that the agent could not support an action for the stipulated compensation,

commissions over and above such salaries or other compensation, upon the receipts and disbursements of public moneys appropriated by law for particular services, when such receipts and disbursements were not among the ordinary and regular duties appertaining to such offices or clerkships, but superadded labor and responsibility, apart from such ordinary and regular duties; and that the defendant took upon himself the labor and responsi bility of such receipts and expenditures of the navy hospital fund, at the request of said commissioners, or with an understanding on both sides, that he should be compensated for the same, as extra service, by the allowance of a commission on the amount of such receipts and expenditures;—then it is competent for the jury in this case to allow such commissions to the defendant, on the said receipts and disbursements, as the jury may find to have been agreed upon between the said commissioners and the defendant; or in the absence of any specific agreement fixing the rate of commissions, such rate as the jury shall find to be reasonable, and conformable to the general usage of the government and its departments in like cases. These instructions were entirely correct, and in conformity to the rules and principles laid down in the former part of this opinion."

So, in the case of the United States v. MacDaniel, 7 Peters, 1, 16, M'Lean, J. in delivering the opinion of the court, says: "An action of assumpsit has been brought by the government to recover from the defendant the exact sum, which, in equity, it is admitted he is entitled to receive, for valuable services rendered to the public, in a subordinate capacity, under the express sanction of the head of the navy department. This sum of money happens to be in the hands of the defendant, and the question is, whether he shall under the circumstances, be required to surrender it to the government, and then petition congress on the subject. If some legal provision be necessary to sanction the payment of the compensation charged, application should be made to congress by the head of the department, who required the service and promised the compensation. But no such provision is necessary. For more than fifteen years the claim has been paid for similar services, and it is now too late to withhold it for services actually rendered. It would be a novel principle to refuse payment to the subordinates of a department, because their chief under whose direction they had faithfully served the public, had mistaken his own powers, and had given an erroneous construction of the law. But the case under consideration is stronger than this. It is not a case where payment for services is demanded, but where the government seeks to recover money from the defendant, to which he is equitably entitled for services rendered. This court cannot see any right, either legal or equitable, in the government, to the sum of money for the recovery of which this action was brought. They think that the secretary of the navy, in authorizing the defendant to

though the service was performed, and the money received by his means.(e) And again, where a stock-broker sued his employer for commission and money expended in the purchase of shares in a company which was illegal under 6 Geo. I. c. 18, it was held, that the action could not be maintained, though the shares had been purchased.(3)+

make the disbursements, on which the claim for compensation [viz., a commission at the rate of one per cent,] is founded, did not transcend those powers which under the circumstances of the case, he might well exercise." That there must be some sanction on the part of government to the services, for which an extra compensation is claimed, appears, as well from the two preceding cases, as from the case of the United States v. Ripley, 7 Peters, 18.

As to the allowance to receivers, it depends on the degree of difficulty, or facility experienced in the collection. If the amounts to be received are small and payable at short periods, five per cent appears to be the maximum allowed in the English Court of Chancery: if the amounts are large, and the collection easy, the compensation is diminished. Day v. Croft, 2 Beav. 488. But should not this circumstance be taken into consideration, that as the greater the amount received, so is the responsibility greater ? In the state of New York, executors, administrators, and guardians are allowed a commission of five per cent, "for receiving and paying out all sums of money not exceeeding one thousand dollars,” which is diminished as the amount increases. Rev. Stat. New York, vol. 2, (2d ed.) p. 33, § 58; p. 86, § 21. By Rule 124, of the Court of Chancery of that state, masters making sales by order of the court are reduced to a very pitiful allowance which can, in no case, however large the amount received may be, exceed twenty dollars. ||

(e) Stackpole v. Earl, 2 Wils. 133, and see post, || 116, 117.||

(3) ↓ Josephs v. Pebrer, 3 B. & C. 630.4 || So, where Waldo the plaintiff, who held an office for life, in the gift of one Farrer, agreed with Martin, the defendant, to resign, and to procure the appointment for him, and the defendant, in consideration thereof, agreed that the plaintiff should have a moiety of the profits; and the plaintiff resigned, and through his influence the defendant was appointed, and executed a deed for the performance of the agreement, which was not communicated to Farrer; it was held in an action of covenant by Waldo, against Martin, for not paying over to him a moiety of the profits of the office, that the agreement was a fraud upon Farrer, and therefore illegal and void: Abbott, C. J. (the only judge whose opinion is stated in the report,) observing: "I think that the plaintiff should have been nonsuited for want of proof that the bargain was made with the privity and consent of Mr. Farrer. The office was in the gift of that gentleman, and had he known that the effect of appointing the

[*103] *[But the court will not be astute to detect an illegality, and therefore it seems, that although a previous agreement, if carried into effect, might have rendered a contract illegal, yet, if the contract itself be capable of being legally performed by certain precautions being observed, the previous understanding will not deprive the agent of his right to commission. Thus, where A. commissioned B. to get a charter party effected on his ship, Russian built, and British owned, and she was accordingly chartered to go to America, and take in there a cargo of permitted goods, rice and cotton being specified, with which she was to sail to Cadiz, Lisbon or Gottenburgh, as directed; and by a previous agreement, it appeared to have been in the contemplation of the parties, to carry the goods to some port in the United Kingdom, and that the

ship should carry no license, it was held, that this [*104] was not such an *illegal contract as would deprive A. of his right to commission, for procuring the

defendant would not be to give him the emoluments of the office, but to divide them between him and the plaintiff, it is probable that he might have exercised his right of patronage in a different mode; it appears to me, therefore, that this secret agreement was a fraud upon Mr. Farrer, and void in law." Waldo v. Martin, 4 Barn. & Cress. 319. The rule as to persons connected with illegal transactions is this. Whenever the illegality mus necessarily appear in the prosecuting of the claim, the court will give no countenance to the action; but if the case be so far independent of the illegality that it may be kept out of sight altogether without prejudicing the right of action, the court will not allow it to be mooted as an objection. Thus in the cases just cited it was a necessary part of the inquiry in and upon what the labor and money had been expended, and for what the commission was claimed: and when it appeared that the transaction which was the subject of the claim was illegal, the court refused its aid. But we have seen before, (p. 62,) that an agent cannot shelter himself from paying over to his principal money which has come to his hands on account of the principal, under a plea that the transaction in respect of which the money was paid, was unlawful, because the only inquiry in such a case would be, did the agent receive the money, and on whose account did he receive it. This distinction will serve to explain the cases hereafter cited, as to the claim of an agent to be reimbursed money laid out for his principal in illegal transactions. || Ante, 63 n. (a).||