^{page 199 note 1} Grodecki (1955) 71 L.Q.R. 254; Hamson (1949) 10 Camb.L.J. 249; Street, , Law of Gaming (1937)Google Scholar Part III, Chap. VI.

^{page 200 note 2} “Where the owner of property transfers it to another for an illegal purpose, and such purpose is not carried into execution or the transferor is not as guilty as the transferee, or the effect of permitting the transferee to retain the property might be to defeat the provisions of any law, the transferee must hold the property for the benefit of the transferor.”

^{page 200 note 3} Per Lord Mansfield in Smith v. Bromley, 2 Doug. 696, cited by Grodecki, at p. 256.

^{page 200 note 4} 2 Wilson K.B. 341. In some quarters this decision has been regarded as of very wide import: infra, nn. 98, 1.

^{page 200 note 5} Andree v. Fletcher (1789) 3Google Scholar T.R. 266; Petrie v. Hannay, 3 T.R. 418 (diss.). In the welter of apparently conflicting opinions proceeding from him, his Lordship at least held firm to the view that in stock-jobbing cases no restitution should be made.

^{page 200 note 6} Street 469 (n), citing Cobdale v. Kendrick and Alfred v. Loricus.

^{page 200 note 7} Munt v. Stokes, 4 T.R. 561, 564.

^{page 200 note 8} Drummond v. Deey, 1 Esp. 153 (there is no reference to the contrary view in the 1792 cases, cited n. 6, but perhaps in those the transferor was less guilty); Steers v. Lashley, 6 T.R. 61.

^{page 200 note 9} Pickard v. Bonner, Peake 289, 290.

^{page 200 note 10} Lacaussade v. White, 7 T.R. 535.

^{page 201 note 11} Vandyck v. Hewitt, 1 East 96, 98, cited Grodecki, 258. This record perhaps supports Thayer's appraisal of his Lordship as that “famously ignorant man”: (1881) 15 Am.Law Rev. 10, n. 1.

^{page 201 note 12} For contemporary common law vacillations, see Grodecki, 256–257.

^{page 201 note 13} Drury v. Hooke, 2 Chanc.Cases 176, 1 Vern. 412; Gay v. Wendow, 2 Freem. 101.

^{page 201 note 14} Whaley v. Norton, 1 Vern. 483.

^{page 201 note 15} Taylor v. Bowers (1876) 1Google Scholar Q.B.D. 291.

^{page 201 note 16} Matthew v. Hanbury, 2 Vern. 187.

^{page 201 note 17} Wittingham v. Thornborough, Prec., Ch. 20.

^{page 201 note 18} Shirley v. Martin (1779), referred to in Roche v. O'Brien (1810) 1Google Scholar Ball and B. 330, 358 (Ir.), (Court of Exchequer, exercising equitable jurisdiction, restrain proceedings on marriage brokage bond); Hanington v. Du Chatel (1781) 1 Bro.C.C. 125 (place brokage bond—proceedings restrained); Neville v. Wilkinson (1782) ibid., p. 543 (restraint of proceedings to recover large debt which, in fraud of a marriage agreement, had been represented as only £11); Scott v. S. (1787) 1 Cox 366 (bond cancelled by Exchequer Court, where, for similar fraud, represented as not indebted); Easterbrook v. Scott (1797) 3 Ves.Jun. 456 (bond cancelled where creditor, in fraud of other creditors, represented his debt below actual amount).

^{page 201 note 19} Goldsmith v. Bruning (1700) 1 Eq.Ca.Abr. 90, pl. 4 (marriage broker ordered to repay 50 guineas); Keat v. Allen (1707) 2 Vern. 588 (marriage brokage bond—interest ordered to be repaid); Law v. Law (1735) Cas.t.Talbot 140 (order for delivery of bond given to place broker—there was also a claim for repayment of £10, but this is not mentioned in the judgment, or in 3 P.Wms. 191 even in the report); Morris v. McCullock (1763) Amb. 432 (recovery of £200 paid to procure service commission); Whittingham v. Burgoyne (1797) 3 Anst. 900 (Exchequer Court orders return of money levied by sheriff, in execution proceedings on a bill of exchange, the consideration for which was an unlawful sale of a commission: bill also to be delivered up to be cancelled).

^{page 202 note 20} Palmer v. Neave (1805) 11Google Scholar Ves.Jun. 165 (bond by bridegroom to indemnify father, who had settled annuity on bride); St. John v. St. John, ibid., p. 525 (instrument of future separation); The Vauxhall Bridge Co. v. Earl Spencer (1821) Jac. 64, 67, where Eldon L.C. thought monetary restitution a possibility, cited Grodecki, 272.

^{page 202 note 21} L.R. 16 Eq. 275, 283.

^{page 202 note 22} See Powell, R., (1953) Current Legal Problems, 254, 259–262.Google Scholar

^{page 202 note 23} Keat v. Allen (supra, n. 19).

^{page 202 note 24} (1750) 1 Ves.Sen. 504—it was ultimately held that there was a valid basis to support the promise in the shape of real affection and regard: Ves.Sen.Supp. 211.

^{page 202 note 25} Ibid., at p. 506.

^{page 202 note 26} Hermann v. Charlesworth [1905] 2 K.B. 123, following King v. Burr (1810) 3 Mer. 693.

^{page 202 note 27} Goldsmith v. Bruning (1700) (supra, n. 19).

^{page 202 note 28} Pitamber v. Jagjiwan (1884) 13Google Scholar Bom. 131; Vaithyanathan v. Gungarazu (1893) 17Google Scholar Mad. 9.

^{page 202 note 29} Dholidas v. Fulchand (1897) 22Google Scholar Bom. 658; Baldeo Das v. Mohamaya (1911) 15Google Scholar Cal.W.N. 447; Kalavagunta v. K. Lakshmi (1908) 32Google Scholar Mad. 185 (F.B.); Dharnidhar v. Kanhji Sahay, A.I.R. 1949Google Scholar Pat. 250; Abbas Khan v. Nur Khan (1920) 1Google Scholar Lah. 574.

^{page 203 note 30} The Child Marriage Restraint Act, Act XIX of 1929.

^{page 203 note 31} Narayan Nambudri v. Patticharavoor, A.I.R. 1945Google Scholar Mad. 165.

^{page 203 note 32} Suryanarayan v. Krishna, A.I.R. 1957 Or. 125—it was found that P1 was induced to marry P2, a widow, only by a promise of land, jewels and ornaments from D, the maternal uncle of P2. After the marriage P1 sued D in vain to recover these articles, as it was held that P1 entered into the marriage only for these mercenary reasons.

^{page 203 note 33} Kalavagunta v. K. Lakshmi (1908) 32Google Scholar Mad. 185, 190, per White C.J. obiter, delivering the Full Bench Judgment in the case that decided that all such agreements were illegal in Madras (supra, n. 29); Ram Sumran Prasad v. Gobind Das (1926) 5Google Scholar Pat. 646 (bench); Dharnidhar v. Kanhji Sahay, A.I.R. 1949 Pat. 250, 255,Google Scholarper Ramaswami, J.; Alsidas v. Punamchand (1944) Nag. 535, 538,Google Scholarper Grille C.J.

^{page 203 note 34} Gopi Tihadi v. Gokhei Panda, A.I.R. 1954 Or. 17, 23, per Panigrahi C.J.

^{page 203 note 35} One view is that the maxim about par delictum is an exception to the general rule that no one can plead his own turpitude: per Tek, Chand J. in Qadir Bakhsh v. Hakam (1932) 13Google Scholar Lah. 713, 724–725. On this analysis, the Montefiori case would have to be regarded as illustrating an exception to the maxim as to par delictum.

^{page 204 note 36} I Black. W. 363.

^{page 204 note 37} The case is so explained in the leading case of Jorden v. Money (1854) 5Google Scholar H.L.C. 185, per Lord Cranworth at pp. 210–211, per Lord Brougham at pp. 225–226, per Lord St. Leonards at pp. 251–252.

^{page 204 note 38} Provided it is satisfied that the whole of the relevant circumstances are before it: N. W. Salt Co. v. Electrolytic Alkali Co. [1914]Google Scholar A.C. 461, 469; Edler v. Auerbach [1950] 1Google Scholar K.B. 359, 371–372; Scott v. Brown [1892] 2Google Scholar Q.B. 724, 728; Re Robinson's Settlement [1912] 1Google Scholar Ch. 717, 725. Indian law is the same—see cases cited by Pollock, and Mulla, , Indian Contract Act (1957)Google Scholar 8th ed., 199 (a).

^{page 204 note 39} Supra, n. 4, at p. 351.

^{page 204 note 40} 1 Cowp. 341.

^{page 204 note 41} Supra, n. 14.

^{page 205 note 42} (1890) 24 Q.B.D. 742, 747; “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.”

^{page 205 note 43} The requirement of “partial performance in a substantial manner” laid down by Fry L.J. (ibid.) must still be satisfied.

^{page 205 note 44} (1870) L.R. 9 Eq. 475.

^{page 205 note 45} Comm. ii, xxx, 443, cited Street 473.

^{page 205 note 46} (1908) 35 Cal. 551; 24 T.L.R. 462 (appeal from Lower Burma).

^{page 205 note 47} Infra, n. 92.

^{page 206 note 48} (1907) 23 T.L.R. 575.

^{page 206 note 49} Infra, n. 51.

^{page 206 note 50} Alexander v. Rayson [1936] 1Google Scholar K.B. 169 (C.A.).

^{page 206 note 51} Bigos v. Bousted [1951] 1Google Scholar All E.R. 92, 101.

^{page 206 note 52} Harry Parker v. Mason [1940] 2Google Scholar K.B. 590, 602, per Mackinnon L.J.

^{page 206 note 53} Petherperumal v. Muniandi Servai, n. 46 (supra); Tirupathi v. Lakshamana, A.I.R. 1953Google Scholar Mad. 545, 547, not following Bigos v. Bousted, supra, n. 51. See however Raghuber Das v. Nataber Singh (1919), cited infra, n. 62.

^{page 206 note 54} At p. 263.

^{page 206 note 55} Supra, n. 48.

^{page 207 note 56} 2 B. & P. 470–471.

^{page 207 note 57} References by counsel in Harry Parker v. Mason (supra, n. 52), at p. 596, and in Parkinson v. College of Ambulance [1925] 2Google Scholar K.B. 1, 7–8, and by Lush J., at p. 13.

^{page 207 note 58} (1916) 43 Cal. 115.

^{page 207 note 59} Supra, n. 19. Lord Mansfield permitted recovery of a bribe in Walker v. Chapman (1773) Lofft. 342, but not in Browning v. Morris (1778) 2 Cowp. 790. Grodecki considers his Lordship changed his mind: 257, n. 31, but the contemporary explanation was that in the earlier case the matter was still executory: per Buller J. in Lowry v. Bourdieu (1780) 2 Doug. 468, 471.

^{page 207 note 60} Armitage v. Smith (1873) 4Google Scholar A.J.R. 175 (Supreme Court of Victoria).

^{page 207 note 61} Srinivasa v. Sesha (1917) 41Google Scholar Mad. 197, 200–201, per Oldfield J.

^{page 207 note 62} A.I.R. 1919 Pat. 316.

^{page 208 note 63} nn. 51, 52.

^{page 208 note 64} n. 53.

^{page 208 note 65} A.I.R. 1954 Or. 17, 21.

^{page 208 note 66} Supra, n. 16.

^{page 208 note 67} (1873) L.R. 16 Eq. 275, 281.

^{page 208 note 68} Sidlingappa v. Hirasa (1907) 31Google Scholar Bom. 405; Sabava v. Yamanappa, A.I.R. 1933Google Scholar Bom. 209. In Vilayat Hussain v. Misran (1923) 45Google Scholar All. 396, 400, Mears C.J. takes a contrary view, without referring to any authority, English or Indian.

^{page 208 note 69} Not all the exceptions have been considered: Street lists as many as ten: op. cit. 488.

^{page 208 note 70} See per Eldon, L.C. in Muckleston v. Brown (1801) 6Google Scholar Ves. 52, 69.

^{page 209 note 71} (1858) 27 L.J.Ex. 262.

^{page 209 note 72} Per Fry, L.J. in Kearley v. Thomson (supra, n. 42), at p. 746.Google Scholar

^{page 209 note 73} (1876) 1 Q.B.D. 291, 293, reporter's note (I).

^{page 209 note 74} “The plaintiff is not obliged to state a fraud of his own as part of his title. All the plaintiff has to say is: ‘These were my goods. I was possessed of them in 1868. I have never parted with them to anybody. They are my goods still. I never sold them, and I have never given them to anybody in such a way as to deprive myself of the right to possession of them.’ It is the defendant who has got really to show the fraud … the case of Bowes v. Foster seems to me entirely on all fours”: at p. 298. Grove J., at p. 301, though not so definite, does remark that plaintiff is “repudiating the fraud and setting up his own prior rightful claim as owner of the goods.”

^{page 209 note 75} (1831) 9 L.J.(o.s.)K.B. 332.

^{page 209 note 76} (1835) 3 A. & E. 649; 5 L.J.(o.s.)K.B. 25.

^{page 210 note 77} (1869) L.R. 4 Q.B. 309, 314.

^{page 210 note 78} [1945] K.B. 65, 71 (C.A.).

^{page 210 note 79} Supra, n. 51. See the analysis in Paton, , Bailment, 35–36Google Scholar: in fact the plaintiff (strictly he was defendant in the action) never relied upon his title.

^{page 210 note 80} Supra, n. 66.

^{page 210 note 81} See Hamson, , op. cit.Google Scholar

^{page 210 note 82} Supra, n. 35.

^{page 211 note 83} Smith, , 13th ed., (1929), 445.Google ScholarSimpson v. Bloss (1816) 7Google Scholar Taunt. 246; Fivaz v. Nicholls (1846) 2Google Scholar C.B. 501; Begbie v. Phosphate Sewage Co. (1875)Google Scholar L.R. 10 Q.B. 491, 500; Kearley v. Thomson (supra, n. 42); Scott v. Brown [1892] 2Google Scholar Q.B. 724; Farmers' Mart v. Milne [1915] A.C. 106.Google Scholar

^{page 211 note 84} In the Milne case the defendant pleaded the illegality, in Fivaz Maule J. indicates that the result would be the same had he done so: at p. 514, and in the Scott and Begbie cases, the court took notice of it, though pleaded by neither party.

^{page 211 note 85} Infra, n. 14.

^{page 211 note 86} See Grodecki, 270: “… a formal, procedural test to be applied in all cases.”

^{page 211 note 87} [1937] 2 K.B. 158 (C.A.).

^{page 211 note 88} At p. 270, n. 7.

^{page 211 note 89} Supra, n. 84.

^{page 212 note 90} There is one anomalous case where an innocent defendant will lose, though if guilty he would win. If D has received on behalf of P money from X under an illegal agreement between X and P, D cannot refuse to pay to P if innocent: Tenant v. Elliott (1797) 1 Bos. & P. 3; Farmer v. Russell (1798) 1 Bos. & P. 296.

^{page 212 note 91} Supra, n. 67.

^{page 212 note 92} Bessey v. Windham (1844) 6Google Scholar Q.B. 166; Symes v. Hughes (supra, n. 44) is a similar case as the transferor was suing on behalf of his creditors and with their approval.

^{page 212 note 93} Phillips v. Probyn [1899] 1Google Scholar Ch. 811. The facts are similar to those of Ayerst, and also the terms of the settlement, except that in Ayerst the settlor was more generous to the lady: (i) he did not make her life interest depend on her remaining unmarried; (ii) after her life interest, he gave her a power of appointment instead of himself; and (iii) the ultimate trust was for her next-of-kin, instead of, in substance, for his.

^{page 212 note 94} Gordon v. Chief Commissioner of Police [1910] 2Google Scholar K.B. 1080 (C.A.). The police seized money from a house occupied by P's servant. P and others were prosecuted for having used the house as a betting house. P was acquitted though others were convicted. P sued for the return of the money, claiming that the money was the result of illegal street betting, and won. Street criticises (491), and would deny relief even had the seizure been from P's own house. But even if the money had been res nullius, the case put by Street (485), P's anterior possession must be protected against deprivation without any claim of right. In Australia a similar view has been taken: Strang v. Owens (1925) 42Google Scholar W.N.(N.S.W.) 183 (Supreme Court of New South Wales)—money earned in an immoral business can be recovered from the defendant to whom the owner gave it upon trust for herself.

^{page 213 note 95} (1819) 2 B. & Ald. 367.

^{page 213 note 96} (1850) 2 C.B. 85.

^{page 213 note 97} Supra, n. 4.

^{page 213 note 98} Collins v. Blantern, ibid.; Prole v. Wiggins (1836) 3Google Scholar Bing.(N.C.) 230; Paxton v. Popham (1808) 9Google Scholar East 408.

^{page 213 note 99} Except where the statute declares the transfer null and void, as in Doe v. Howells and Doe v. Ford (supra, nn. 75, 76). Pitt Taylor regards these as in conflict with the Roberts case, but without justification: propositions 2 and 5 are not in conflict.

^{page 213 note 1} Taylor, , Evidence (1931) 12th ed., 88–89.Google Scholar

^{page 213 note 2} Luckmidas Khimji v. Mulji Canji (1881) 5Google Scholar Bom. 295; Qadir Bakhsh v. Hakam (1932) 13Google Scholar Lah. 713 (F.B.). Other cases rejecting Roberts are Vilaiyat Hussain v. Misran 45 All. 396; Raghupati Chatterjee v. Nrishingha A.I.R. 1923Google Scholar Cal. 90.

^{page 213 note 3} (1870) 13 M.I.A. 551.

^{page 214 note 4} Supra, n. 79. There is one difference in the Bigos case: Bousted had executed no document reciting that Bigos had advanced the lire.

^{page 214 note 5} Yaramati Krishnayya v. Chundru Papayya (1897) 20Google Scholar Mad. 326, 332.

^{page 214 note 6} Sidlingappa v. Hirasa (1907) 31Google Scholar Bom. 405 (bench); Kotayya v. Mahalakshamma (1933) 56Google Scholar Mad. 646. Brackenbury v. B. (1820) 2Google Scholar J. & W. 391 is cited by both protagonists. It seems to support Roberts—the nominal owner, suing as plaintiff, will be defeated only if there is some flaw in his case other than the illegality. Contra, per Tek, Chand J., in Qadir Bakhsh (supra, n. 2), at p. 739.Google Scholar

^{page 214 note 7} s. 6 (h), Transfer of Property Act, 1882.

^{page 214 note 8} Istak Kamu v. Ranchhod Zipru (1947)Google Scholar Bom. 206.

^{page 214 note 9} Deivanayaga Padayachi v. Muthu Reddi (1920) 44 Mad. 329, 332, per Abdur, Rahim J.Google Scholar

^{page 215 note 10} As, e.g., in Collins v. Blantern (supra, n. 4).

^{page 215 note 11} (1905) 28 Mad. 413.

^{page 215 note 12} Alla Baksh v. Chunia (1877)Google Scholar Punj.Rec. no. 26. The report does not seem to be available in England, but the case is cited in Pollock and Mulla, op. cit., 175, for the proposition that ornaments lent by a brothel-keeper to a prostitute for attracting men and encouraging prostitution cannot be recovered back. Cf. per Martin, B. in Pearce v. Brooks (1866) 1Google Scholar Ex. 213, 217, criticised by Hamson, , op. cit., at p. 254.Google Scholar Recovery might be denied even in England on the ground of gross immorality: there are indications in Bowes v. Foster (n. 71, supra), at p. 264, that this may prevent reliance even on title, just as according to Heath, J. in Tappenden v. RandallGoogle Scholar (supra, n. 56) a plaintiff may fail to recover on an executory agreement if grossly immoral. Recovery is clearly impossible if the goods have no lawful use, e.g., obscene books: Bowmakers v. Barnet [1945]Google Scholar K.B. 65, 72.

^{page 215 note 13} Haji Habib v. Bhikamchand, A.I.R. 1954Google Scholar Nag. 306, 314, 316, 318.

^{page 215 note 14} Vilaiyat Hussain v. Misran, 45 All. 396, 399, per Mears C.J.Google Scholar

^{page 216 note 15} Op cit., 464 (k): Smith's Advertising Agency v. Leeds Laboratory Co. (1910) 26Google Scholar T.L.R. 64, 335; Pessers v. Catt (1913) 29Google Scholar T.L.R. 381; Re Arthur Average Association (1876) 34Google Scholar L.T. 942.

^{page 216 note 16} See Evans v. Bartlam [1937] A.C., at p. 479, per Lord Atkin.Google Scholar

^{page 216 note 17} Supra, n. 54.

^{page 217 note 18} Supra, n. 43.

^{page 217 note 19} Supra, n. 86.

^{page 217 note 20} Kaikaus J. of the Lahore High Court (Pakistan) has stated that the courts need not apply the maxims here considered if in a particular case their application would lead to injustice or to a situation that public policy does not approve of: Allah Ditta v. Allah Wasaya (1956) 2Google Scholar P.L.D. 521, 527. This is an indication that views similar to those held by Grodecki may receive judicial approval.