A recovery will not be permitted, even though no part of the illegal purpose has been accomplished, if it appears that by reason of the intervention of the authorities or the action of a third person the accomplishment of the illegal purpose is impossible:
Shattuck v. Watson, 1890, 53 Ark. 147; 13 S. W. 516; 7 L. R. A. 551: Suit to cancel mortgages given by a father in consideration of a promise not to prosecute his son for forgery. The son was prosecuted through other agencies. Hemingway, J. (p. 152): "But conceding that there was a time when the appellee might have withdrawn from his illegal compact, removed the obstacle he had placed in the way of justice and recovered the securities, he never sought to do it, until the illegal purpose failed from other causes, and his agreement no longer thwarted justice."
This brings out, in clear relief, the object of the rule of locus poenitentiae. It is not to aid the penitent, but to avert, if possible, the violation of law. Where it is found that the parties are helpless to execute their unlawful plans, the court ceases to concern itself with the matter.
house were to be erected by the city. The city erected the city hall but not the market house. Held: the property owners could not recover money paid under the contract.); Hooker v. De Palos, 1876, 28 Ohio St. 251, (land lottery); Sauerhering v. Rueping, 1909, 137 Wis. 407 ; 119 N. W. 184, 187, (ultra vires contract of corporation). And see St. Louis, etc., R. Co. v. Terre Haute, etc., R. Co., 1892, 145 U. S. 393, 407 ; 12 S. Ct. 953, (ultra vires lease).
1 Block v. Darling, 1890,140 U. S. 234; 11 S. Ct. 832, (deposit in fraud of creditors). And see cases cited, post, Sec. 148, holding that, although part of a sum of money paid by a principal to his agent to be used for an illegal purpose has actually been expended by the agent in furtherance of the illegal purpose, the balance may be recovered.