wholly executed, upon the principie applicable to parties in pari delicto. Where, however, as in this case, money had been advanced in part performance of a void contract, and either party sees fit to put an end to its further fulfillment, the amount paid may be recovered back, in indebitatus assumpsit, as for money had and received. In the present case, the agreement had never been wholly executed. The plaintiff paid to the defendant five dollars in money, and the defendant agreed to deliver to the plaintiff on the next day, a yoke of oxen, and to receive a colt in exchange. The defendant refuses to deliver the oxen, on the ground that he entered into the contract on a Sunday, and it is void. So far he is sustained by the law. But if he repudiates and refuses to execute the agreement, on the ground that it was a business transaction on the Sabbath, and consequently void, upon what pretense of right can he withhold from the plaintiff the money that he advanced upon the faith of that agreement? He has put an end to the execution of the contract as he had a legal right to do. He now holds five dollars of the plaintiff's money without consideration, and is, ex aequo et bono, under as great obligation to refund it as if he had accidentally found it on Sunday. The well-settled rule of law undoubtedly is, that where money has been paid in pursuance of an illegal contract that remains executory, it is recoverable in an action for money had and received to the use of the party paying it. Aliter, when the agreement is executed. The judgment of the common pleas is reversed with costs.1 HENTIG v. STANIFORTH. 5 M. & S. (K. B.) 122.-1816. LORD ELLENBOROUGH, C. J.-This was an action for money had and received, to recover back the premium that had been paid on a policy of insurance. The cause was tried before me at Guildhall, and the facts as stated by the plaintiffs' counsel, and which were admitted without proof, were these: The policy was dated on the 20th of November, and was on goods at and from Riga to Hull. The ship, which was a Swedish ship, was chartered for the voyage; and by the terms of the charter-party a British license for the voyage was to be procured. On the 3d of September a letter was written and sent from Riga to the agent of the assured in England, directing him to procure a license and to effect insurance. The letter was 'In Troewert v. Decker, 51 Wis. 46 (1881), it was held that where money was borrowed on Sunday, with a promise to repay it, the contract was illegal; and that "the mere fact that a person borrowing money on Sunday retains it and converts it to his own use, does not raise an implied promise, binding in law, and upon which an action can be maintained." delayed beyond the usual time by contrary winds, and was not received till the 5th of October. On the 7th of October a license was obtained. The ship sailed from Riga on the 3d. It was objected, that this was an illegal voyage, by the stat. 12 Car. 2, c. 18, s. 8, the ship being Swedish, and the goods the produce of Russia, and that the plaintiff being particeps criminis could not recover back the premium. A verdict was taken for the plaintiff, with liberty to the defendant to move to set it aside and enter a non-suit. Such a motion was accordingly made, and a rule to show cause granted, and the matter has been argued. Upon consideration, we think the plaintiff is entitled to recover back the premium, on the principle of the decision of Oom v. Bruce, 12 East 225. The objection is, that the contract was illegal, the voyage insured being for the conveyance of Russian commodities from Russia to England in a Swedish ship, and so contrary to the navigation act, 12 Car. 2, c. 18, s. 8; and that the plaintiff being particeps criminis cannot recover back the money paid on the illegal consideration. But before the time of this insurance, a statute had passed enabling His Majesty to legalize such a voyage by license; and in fact a license had been granted before the policy was effected, though not until four days after the ship sailed, the ship having sailed on the 3d of October, and the license being dated on, and expressly made to be in force from the 7th of that month. The ship having sailed before the license was granted, it has been decided, and rightly so, that the policy was void. No risk, therefore, was ever incurred by the underwriter, and if he can retain the premium he will retain it for nothing. But though the license was not actually obtained until the 7th of October, it was always in the contemplation of the parties, that a license should be obtained; the charter-party provides for it, and a letter directing it to be obtained. was sent from Riga, on the 3d of September, which, according to the ordinary course, might be expected to have arrived in England. in time for a license to be procured before the third of October, the day of the ship's departure. If the license had been obtained before the ship's departure, the voyage would have been legal. The plaintiff residing abroad had reasonable ground to suppose that the license would be obtained before the ship sailed: he contemplated a legal and not an illegal voyage. His agent in England knew that the license was obtained, but was ignorant of the time of the ship's departure; he also contemplated a legal and not an illegal voyage. The illegality depended upon a fact, viz., the posteriority of the license to the ship's departure, which was not known to the parties, and was contrary to the opinion and expectation that the plaintiff might reasonably entertain. In this respect, the present case is in principle the same as Oom v. Bruce; there the illegality of the voyage arose out of the commencement of hostilities on the part of Russia, which was a fact unknown to the plaintiffs when they effected the policy. It was urged in argument, for the purpose of distinguishing the two cases, that here the voyage was prima facie illegal, because a license was necessary to legalize it. But there is nothing of illegality apparent on the face of the policy, and as far as the plaintiffs' knowledge of the facts, coupled with the circumstance of the expected license, appears to have extended, he had a right to suppose that the voyage would be legal: there was no illegality apparent to him or to his agent. We think, therefore, that this distinction does not exist. But the case is plainly distinguishable from all the cases cited on the part of the defendant, wherein the return of premium was called in question. In Toulmin v. Anderson, I Taunton 227, no question on the return of premium was ever made. In all the other cases cited the voyages were illegal; and there was not in any one of them any state of facts, either actually existing or supposed to exist, that could render it legal. In the present case, a state of facts was supposed to exist, and reasonably so supposed, under which, if the expectation of the parties had been realized, the voyage would have been legal. Unfortunately for the plaintiff his expectation was disappointed, and he lost the benefit of his insurance; but he contemplated a legal voyage and a legal contract. And we think, therefore, that he is not a party to a violation of the law, and is entitled to recover back his premium, as money paid without any consideration. Rule to be discharged.1 SKINNER v. HENDERSON. 10 Mo. 205.-1846. SCOTT, J.-This was an action of assumpsit on the general counts brought by Skinner against Henderson, in which Skinner submitted to a non-suit, and after an unsuccessful motion to set it aside, has brought the cause to this court. Henderson, it seems, by deed, leased to Skinner a right of pre-emption he possessed on the public lands, for the term of ninety-nine years, for a large sum of money. The object of the lease was to evade the act of congress prohibiting the sale of a pre-emption right until the issuance of a patent therefor. Understanding afterward that such an agreement was not valid, the parties mutually consented that the lease should be burned, which was accordingly done and the contract was considered rescinded by them. In the meantime Skinner had made large payments to Henderson under the lease, and this suit was brought to recover them. On the trial a copy of the lease was offered in evidence, and several receipts for money under the contract by Henderson; all these papers were excluded by the court, and this action of the court is the error complained of. The rule in respect of money paid on illegal contracts appears in general to be, that money so advanced may be recovered in an action for money had and received, while the contract remains ex In Marling v. Ins. Co., 19 Ohio Dec. 55 (Hamilton Common Pleas, 1908), plaintiff insured her husband's life without his consent. Later she learned that such consent was necessary, but concealed the want of it from the insurance company. Later she sued to recover back the premiums paid and recovery was denied, she being held estopped by her concealment. See note, 8 Col. L. Rev. 665. ecutory, because a violation of the law is thereby prevented; but if a contract be executed, it cannot be recovered back. When both parties are in pari delicto, mclior est conditio defendentis, not because he is favored in law, but because the plaintiff must draw his justice from pure sources. Buller's N. P. 132; Doug. 470. Here the contract was not executed, the parties availed themselves of the locus poenitentiae, and rescinded their bargain, consequently the money paid under it may be recovered. It may be remarked in regard to the refusal to admit secondary evidence of the deed, that it is by no means a matter of course to permit a party to give secondary evidence of the contents of an instrument, although the fact of its destruction is clearly proved. A party who will voluntarily, and without cause, deprive himself of original evidence, will not be permitted to use the secondary. The deed being destroyed with mutual consent of parties, and with a view to rescind an unexecuted contract which they learned was illegal, the authorities will amply sustain under such circumstances the introduction of secondary evidence. Riggs v. Taylor, 9 Wheat. 483. The evidence of the execution of the deed was sufficient to have permitted it to go to the jury. The judgment will be reversed and the cause remanded. * * * ii. Par Delictum. HARSE v. PEARL LIFE ASSURANCE CO. [1904] I K. B. 558. IN April, 1889, a proposal was made to the plaintiff, by an agent of the defendant insurance company, that he should effect an insurance with the defendants upon the life of a relative. The plaintiff agreed to insure the life of his mother, who was residing with him as his housekeeper, and to whom he made a money allowance. In the proposal form the pecuniary interest in the life insured was stated to be, "Son for funeral expenses." The plaintiff's father was alive, but he was paralyzed and unable to earn any money, and would not be in a position, in the event of his wife predeceasing him, to pay for her funeral expenses. Subsequently the plaintiff was induced by the defendants' agent to effect a second policy with the defendants upon his mother's life. The proposal form of that policy was signed with the name of the mother, but the plaintiff stated that the policy was effected for his benefit, and the premiums were paid by him. The mother, in giving her evidence, denied that she had signed the proposal form. In 1902 the plaintiff, being informed that the policies were void for want of insurable interest, brought the action in the Oxford county court to recover the premiums paid by him under the two WOODRUFF'S CASES-16 policies during the preceding twelve years, amounting to £43 8s. At the trial the judge left the following questions to the jury: (1) "Had the person, for whose benefit the assurance was really made, a real pecuniary interest under either policy?-Yes. (2) Did the agent in either case make a statement which was false in fact? If so, what was it?—No. (3) Did the agent in either case know that what he was saying was untrue?-No. (4) Was either policy, or were both, taken out in consequence of what the agent had said?Yes. (5) Did the agent in either case represent that the policy had been a good one?-Yes. (6) Were the agents in what they did, or was either of them, guilty of any fraud, and, if so, in what respect? No." The jury were unable to agree whether the mother signed the proposal form. The county court judge held as a matter of law that under the circumstances the fact that the plaintiff would morally be bound to pay for his mother's funeral expenses, failing the ability of his father to pay for them, gave rise to a sufficient pecuniary interest to satisfy the statute of 14 Geo. 3, c. 48; that the first policy was consequently good, and the premiums paid under it could not be recovered back. He also held with regard to both policies that, even if they were void for want of insurable interest, the premiums could not be recovered back, for the parties were in pari delicto, the representation of the agent as to the validity of the policies being a representation as to a matter of law, and having been innocently made. He accordingly gave judgment for the defendants. The plaintiff appealed. The Divisional court held that the fact that a person will at some future date be under a moral, though not a legal, obligation to pay for the funeral expenses of a relative is not sufficient to create an insurable interest in that relative's life; and, as to both policies, that, as the plaintiff was entitled to assume that the defendants' agent would have a knowledge of insurance law, the parties were not in pari delicto, and the premiums could consequently be recovered back. Judgment was accordingly given for the plaintiff. The defendants appealed. ROMER, L. J.—* Assuming that the two policies were void because they were illegal, it is clear that the plaintiff cannot recover the premiums that he has paid unless he can make out that he is not in pari delicto with the defendant company. Can he be said to have established that position? To do this, reliance is placed on the statements made by the agent of the company. In my opinion there was no misstatement of fact, and it is further clear that there was no fraud-that it was not a case of oppression or duress, and that it was not a case of an advantage taken by a clever man over an ignorant one. The agent, like the plaintiff, had forgotten or mistaken the law. The finding of the jury amounts to this-that the agent had the belief that the policies were good. Unless it can be |