2 Tappenden v. Randall, 2 B. & P. 467; Busk v. Walsh, 4 Taunt. 290; Colton v. Thurland, 5 T. R. 405; infra, sec 449 et seq.

3 Ibid.; Hodson v. Terrill, 1 C. & M. 797; Batson v. Newman, L. R. 1 C. P. D. 573; Hampden v. Walsh, L. R. 1 Q. B. D. 189; see infra, sec 726, 729.

4 Palyart v. Leckie, 6 M. & S. 290; Foote v. Emerson, 10 Vt. 338; Dixon v. Ormstead, 9 Vt. 310; see Utica Ins. Co. v. Scott, 19 Johns. 1; Utica Ins. Co. v. Bloodgood, 4 Wend. 652.

5 Spring Co v. Knowlton, 103 U. S. 49.

In the opinion of the court, Woods, J., said: "The views of the text-writers are sustained by a vast array of authorities, both English and American. A few will be cited. The case of Taylor v. Bowers, L. R. 1 Q. B. Div. 291, was an action to recover the value of property assigned for the purpose of defrauding creditors. A verdict was also, cannot hold back proceeds from another of whom he was representative, on the ground that there was illegality in the way of getting the money.1 But where the plaintiff and the defendant agreed to conduct an unlicensed theatre, the enterprise being illegal, and the plaintiff in pursuance of the agreement paid out certain money, with the expectation of large gains if the enterprise was forced through, it was held that rendered for plaintiff with leave to move to enter a verdict for the defendant. A rule was obtained on the ground that the plaintiff could not by the allegation of his own fraud get back the goods from the defendant. The Queen's Bench sustained the verdict, the chief justice, Cockburn, delivering the opinion. The defendant then appealed to the Court of Appeals, where the judgment was affirmed. Both courts agreed that an illegal contract partially performed might be repudiated and the money paid upon it recovered.

"Lord Justice Mellish, in the Court of Appeals, said: 'If the illegal transaction had been carried out, the plaintiff could not, in my judgment, have recovered the money. But the illegal transaction was not carried out, it came wholly to an end. To hold that the plaintiff is entitled to recover does not carry out the illegal transaction, but the effect is to put everybody in the same situation as they were before the illegal transaction was determined on and before the parties took any steps to carry it out. That, I apprehend, is the true distinction in point of law. If money is paid or goods delivered for an illegal purpose, the person who had so paid the money or delivered the goods may recover them back before the illegal purpose is carried out, but if he waits till the illegal purpose is carried out, or if he seeks to enforce the illegal transaction, in neither can he maintain an action; the law will not allow that to be done.'

" In Thomas v. The City of Richmond. 12 Wall. 355, this court cites with approval the note of Mr. Frere to the case of Smith v. Bromley, 2 Doug. 696, to the effect that a recovery can be had as for money had and received, when the illegality consists in the contract itself, and that contract is not executed; in such case there is a locus penitentiœ; the delictum is incomplete, the contract may be rescinded by either party.

" The rule is applied in the great majority of the cases, even when the parties to the illegal contract are in pari delicto, the question which of the two parties is the more blamable being often difficult of solution and quite immaterial. We think, therefore, that the facts of this case present no obstacle to a recovery by Knowlton's administrators of the sum paid by him on the stock which had been subscribed for by Sheehan."

Aff. Knowlton v. C. & E. Springs, 14 Blatch. 364; see, contra, S. C., 57 N. Y. 518; cf. White v. Bank, 22 Pick. 181; Lowell v. R. R., 23 Pick. 32; Utica Ins. Co. v. Scott, 19 John. 1; Utica Ins. Co. v. Bloodgood, 4 Wend. 652; Curtis v. Leavitt, 15 N. Y. 9; Skinner v. Henderson, 10 Mo. 205.

1 Infra, sec 357; Armstrong v. Toler, 11 Wheat. 258; Planters' Bk. v. Union Bk., 16 Wall. 483; Baehr v. Wolf, 59 111. 470; Douville v. Meenik, 25 Wis. 688; Heckman v. Swartz, 50 Wis. 264; and other cases cited, infra, sec 357.

he could not call upon the defendant to contribute.1 And, as a general rule, a party who goes into an illegal enterprise risks all he puts in it, and cannot, in case of his confederate proving untrue, or the adventure miscarrying, recover back his advances.2 It should be added that if there be an agreement to rescind an illegal contract, and to return the money advanced on one side, the contract not having become operative, a suit lies to recover such money back.3