3 Daly 109 | New York Court of Common Pleas | 1869
By the Court.
Two questions arise upon this appeal. The first is whether a lawyer who has not obtained a license as required by the revenue act of the United States (12 H. S. Statute at Large, p. 453, § 57, p. 459, § 64, s. d. 31) can recover for professional services rendered after the passage of the act.
Where a statute enacts as one of the means of raising a ' revenue, that those engaged in a particular occupation shall take out a license and pay a certain sum of it, or be subject to the payment of a greater sum, by way of penalty, for neglecting to do so, the only consequence that follows the neglect or omission is the liability to the penalty (Johnson v. Hudson, 11 East, 180; Foster v. Taylor, 5 B. & Ald. 898; Witherall v. Jones, 3 id. 221; Brown v. Duncan, 10 B. & Cress. 93; Cope v. Rowland, 2 Mees. & Welsb. 158; Smith v. Mawhood, 14 id. 452), for there the penalty is imposed only for the purpose of securing the payment of the amount required for the taking out of the license (Griffith v. Wells, 3 Denio, 227). But where the object of requiring that a license shall be obtained is to limit the pursuit of certain callings to those who are declared duly qualified by the granting to them of a license, then the penalty
The act of 1862 declares who shall be deemed a lawyer within the meaning of the statute in these words : “ Every person whose business it is for fee or reward to prosecute or defend causes in any court of record, or other judicial tribunal of the United States, or of any of the States, or give advice in relation to causes or matter pending therein.”
After the passing of this act, the plaintiff rendered professional services for the defendant, which were not of the character above stated. They were not rendered in the prosecution or defence of any cause in a court of record, nor did they consist in the giving of advice in relation to any cause pending in a court. There was, consequently, nothing in the act of 1862 to prevent the plaintiff from recovering for these services. But
The defendant offered evidence to show that the plaintiff had not obtained a license as required by the revenue law. The referee ruled it out as immaterial, but has found, as matter of fact, that the plaintiff had not, up to the commencement of the action, obtained any license required by the act of Congress, and this being conceded, the remaining question is, whether this contract, or any part of it, can be enforced.
In my judgment the whole contract is absolutely void. It was not in the plaintiff’s power, without a license, after the passage of the amendatory act of 1864, to carry on the business _ of giving legal advice in relation to any matter whatever, and that this was a contract made in the prosecution of such a business, and, therefore, void, is obvious from the plaintiff’s own statement, that he rendered under it all the counsel necessary for the formation of the company, and from the averment in his complaint that he was to draw all papers and writings, and give all counsel and advice requisite and necessary for the formation of a corporation under the laws of this State, coupled as it is with the previous averment that he was an attorney and counsellor at law, duly admitted to practice in all the courts of this State.
A part of the consideration of this contract was the legal service which the plaintiff had rendered previous to the passage
Judgment reversed and report set aside, but without prejudice to the plaintiff' to move to amend the complaint.