But in the case of a contract objectionable because of illegality the general principle is that one may make use of the defence in order to rob an associate,59 and it is difficult to draw a distinction between an accounting between partners in an illegal enterprise and a recovery by a principal of illegal gains from his agent. Certainly one who employs an agent to rob a till cannot recover the contents thereof which the agent acquires in the course of his employment. If recovery is to be allowed by either partner or principal in any case, it must be where the illegality is of so slight or venial a character that it is deemed more opposed to public policy to allow the defendant to violate his fiduciary relation with the plaintiff than to allow the plaintiff to gain the benefit of an illegal transaction.
It has sometimes been suggested that where a new contract has been made regarding the proceeds of an illegal transaction or a new investment of them, an action will lie;60 but the soundness of this as a general principle may be questioned.600 If the illegality is slight and does not involve great moral turpitude, a court may permit such a distinction; but a partner or agent in housebreaking, for instance, would surely not be liable to account for the proceeds of stolen silver any more than for a share of the silver itself. Nor would an agreement between the parties as to their respective shares made subsequently to the felony help the plaintiff's case.
58 Therefore it is not surprising to find in view of the English doctrine concerning wagers, that one who is employed to make bets and receive winnings, cannot successfully defend an action for them brought by his employer. De Mattos v. Benjamin, 63 L. J. Q. B. 248.
58a See supra, Sec.Sec. 1771-1779.
59 See cases cited, supra, n. 55.
60 Davis v. Fleshman, 232 Pa. 409, 81 Atl. 412, 245 Pa. 224, 91 Atl. 489. See also Missouri Fidelity etc. Co. v. Art Metal &. Co., 242 Fed. 630, 155 C. C. A. 320.
60a See Thomas Mfg. Co. p. Knapp, 101 Minn. 432, 112 N. W. 969, stated supra, n. 57a.
A distinction also has been suggested where because of tl illegality no title passed to a co-contractor under an illeg contract. There it is argued that the title still remaining in tl original owner, he may reclaim possession by legal process. But it is submitted that here too the result can be justified only where the illegality is not extreme. Public policy and in legality would be of merely technical nature if they turned on distinction between entrusting title and entrusting possession in pursuance of an illegal purpose, and would become almost absurd if a wrong-doer was denied recovery where title has passed to the defendant but was allowed recovery where he has tried to pass title, and where the only reason he failed was be cause his own illegal purpose made ineffectual the usual method of transfer.
Still further it is said that "if the duty to account arises ou of or was part of the illegal transaction itself, so that to require an accounting involves the recognition and enforcement of the illegal contract" no recovery will be allowed.62 If the principa did not authorize the agent's unlawful acts, the law may well prefer to trust the principal rather than the agent to make proper disposition of the agent's improper acquisition; but this distinction will not explain the cases; and if the hypothesis is that the agent's conduct was authorized by the principal, it will be equally true in every case that enforcing the duty to account recognizes the illegality; and any distinction between partners and principal and agent becomes unsatisfactory.