Sec 355

Goods deposited with a party for illegal purposes, the deposit not amounting to a substantive offence, may be reclaimed and recovered back by the owner upon repudiating the bailment.4 This has been held to be the case where goods are transferred under a fictitious sale to an agent for the purpose of eluding the owner's creditors, in which case the owner, by repudiating the transaction, may recover them from the agent, or his assignee with notice.5 " The vendor who had sold goods so as to pass the general property, but without delivery, or the lessor who had executed a demise to take effect at a future day, might rescind the contract and stand remitted to his original possession on learning the unlawful use of the property designed by the purchaser or lessee."6 And even supposing the illegal purpose was known, yet if there was to be no complicity in carrying it out,7 or if the agreement was rescinded before any action was taken on it, then there may be a recovery. back.

Goods deposited for an inchoate illegal purpose may be recovered back.

1 De Begnis v. Armistead, 10 Bing. 107.

2 Aubert v. Maze, 2 B. & P. 371; Booth v. Hodgson, 6 T. R. 405; Cannan v. Bryce, 3 B. & Ald. 181; supra, sec 335 et seq. See, contra, the earlier cases of Burnell v. Minst, 4 Moore, 340; Faik-ney v. Reynous, 4 Burr. 2069; Petrie v. Hannay, 3 T. R. 418.

3 Lea v. Cassen, 61 Ala. 312; infra, sec 355.

4 See infra, sec 725.

5 Leake, 2d ed. 774; Taylor v.

Bowers, L. R. 1 Q. B. D. 291; Symes v. Hughes, L. R. 9 Eq. 475. In Taylor v. Bowers, A. transferred goods to B. under a fictitious assignment to defraud A.'s creditors. B. sold the goods to C, with notice of the fraud, but without A.'s consent. It was held that A. might repudiate the transaction and recover the goods from C.

6 Pollock, 3d ed. 341.

7 See supra, sec 343.

Sec 356

"When, however, the mere fact of supplying either money or goods to an unlawful enterprise is criminal - e.g., when money is contributed to a treasonable conspiracy - and when the fact of the supply goes to encourage others in forming an unlawful confederacy, then the agreement has been so far executed that the party supplying the goods or money cannot, by repudiating the contract, recover either back. He cannot play fast and loose. He cannot take his chance in a criminal venture, and then, after it is advanced in part by his aid, back out and recover what he contributes. The cases where this right of repudiation exists are those of merely unexecuted agreements in which the contribution was not a substantive crime.1

Sec 357

If the contract between the principal and the agent was not of itself illegal, the agent cannot retain, as against his principal, the proceeds of a transaction conducted by him for his principal on the ground that the transaction was illegal.2 And if A. pays money to B. for the use of C, B. cannot sustain a refusal to pay to C. by setting up the illegality of the agreement between A. and C.3 A trustee, also, cannot refuse to account on ground that a particular in the trust involved a breach of the law.4 "Where, also, A., with B.'s consent, effects a policy for his own benefit in B.'s name for B.'s life, A. having no insurable interest therein, B. or his representatives cannot set up this fact against A.1 An agent, also, on a settlement of accounts, cannot set up against a principal an illegal taint attaching to a special item.2 Even though the purpose for which money is given to an agent may be illegal, the principal may revoke the advance at any time before actual appropriation takes place, or may recover the money from the agent in case the money be paid over by the latter after notice not to pay over.3 But where the principal's title is based on tort, an agent may set up as against the principal the title of a third person from whom the goods were unlawfully taken, and who has given notice of suit for the goods.4 And when the contract of agency is itself tainted with illegality, its enforcement will be refused;5 and this is eminently the case when the act constituting the agency is in itself an indictable offence.6 Nor can such a suit be maintained when the object is to obtain a share in an illegal speculation.7

But when the mere supply was a crime, guilty party cannot recover back.

Agent cannot hold back from principal on ground that the transaction was illegal.

1 Tappenden v. Randall, 2 B. & P. 467. On the distinction between attempts which are merely inchoate conceptions, and are therefore not criminal, and attempts which are substantive crimes, see Wh. Cr. L. 8th ed. sec 180 et seq.

2 Infra, sec 725; Wh. on Agency, sec 242, 250, 573, 761; Farmer v. Russell, 1 B. & P. 296; Tenant v. Elliott, 1 B. & P. 3; Bousfield v. Wilson, 16 M. & W. 185; Johnson v. Lansley, 12 C. B. 468; Planters' Bk. v. Union Bk., 16 Wal. 483; Caldwell v. Harding, 1 Lowell, 326; Phalen v. Clark, 19 Conn.

421; Aubery v. Fisk, 36 N. Y. 47; Woodworth v. Bennett, 43 N. Y. 273; Murray v. Vanderbilt, 39 Barb. 140; Lestapies v. Ingraham, 5 Barr, 71; Baehr v. Wolf, 59 111. 470; Daniels v. Barney, 22 Ind. 207; Douville v. Merrick, 25 Wis. 688; Heckman v. Swartz, 50 Wis. 267; De Leon b. Trevino, 49 Tex. 88; see West. Un. Tel. Co. v. Blanchard, 66 Ga.

3 Tenant v. Elliott, 1 B. & P. 3; Kinsman v. Parkhurst, 18 How. 289.

4 Infra, sec 726; Sheppard v. Oxen-ford, 1 K. & J. 491; Beeston v. Bees-ton, L. R. 1 Ex. D. 13.