The accomplishment of any part of the illegal purpose, it seems, effectively cuts off the right to recover: view to the defamation of M; and if A changed his mind before the execution of the contract, it is presumed that he might recover so much of the £1000 as had not been spent on the illegal objects contemplated. To allow an action to be brought on the first of these cases would tend 'to enforce the illegal transaction,' in the second case it would tend to prevent the illegal object from being carried out." 1 See Huffcut's 2d Am. copyright ed., pp. 266, 267.
Kearley v. Thomson, 1890, 24 Q. B. D. 742: Action to recover money paid by the plaintiff, a friend of a bankrupt, to the defendants, solicitors of the petitioning creditor, on their undertaking not to appear at the public examination of the bankrupt, and not to oppose his discharge. Fry, L.J. (p. 746): "What is the condition of things if the illegal purpose has been carried into effect in a material part but remains unperformed in another material part? As I have already pointed out in the present case, the contract was that the defendants should not appear at the public examination of the bankrupt or at the application for an order of discharge. It was performed as regards the first; but the other application has not yet been made. Can it be contended that, if the illegal contract has been partly carried into effect and partly remains unperformed, the money can still be recovered ? In my judgment it cannot be so contended with success. Let me put an illustration of the doctrine contended for, which was that partial performance did not prevent the recovery of the money. Suppose a payment of £100, by A to B on a contract that the latter shall murder C and D. He has murdered C, but not D. Can the money be recovered back? In my opinion it cannot be. I think that case illustrates and determines the present one."
Ullman v. St. Louis Fair Assn., 1902, 167 Mo. 273; 66 S. W. 949; 56 L. R. A. 606: Action to recover money paid under an illegal contract for the purchase of betting privileges at a race track. The plaintiffs enjoyed for a short time the privileges purchased by them. Gantt, J. (p. 287): "It is only when the contract remains wholly unexecuted on one side, and where, by its abandonment, the acts which the law forbids will be averted, that the courts will lend a willing ear to the repentant party, and if he has paid money in advance, will permit its recovery; but when, as in this case, he has carried into effect the unlawful design, and in part, at least, violated the law in furtherance of such contract, the time for repentance has passed in which the law will let him recover moneys which he has embarked in the enterprise."1
1 Also: Arnot v. Pittston, etc., Co., 1877, 68 N. Y. 558; 23 Am. Rep. 190, (agreement to bull the market); Edwards v. Goldsboro, 1906, 141 N. C. 60; 53 S. E. 652; 4 L. R. A. (N. S.) 589, (A city made an illegal contract with certain property owners, whereby a city hall and market
The wisdom of this limitation may be doubted. The court, it is true, may not hope altogether to avert the violation of law by allowing a withdrawal and recovery after the illegal purpose has been in part accomplished, but it may hope to avert a renewal or continuation of the violation of law, whereas to deny a recovery would tend to have the opposite effect. There are a few cases in which the limitation is disregarded.1