Dancy v. Phelan

Bleckley, Chief Justice. 1. When one deposits money with another to be used [246] in illicit commerce, the transaction is pure as a mere bailment for custody and preservation of the money, but for nothing else. Whilst the illegal instructions are unrevoked, there is no duty to account or pay ever, nor any relation of debtor and creditor. The bailee is a mere stakeholder. When the instructions are revoked, there is still no duty to pay over the money immediately, but only upon demand. Generally, a mere passive custodian, whether as bailee or as agent, is not subject to action until after demand and refusal. Story on Bailments, §107; Meaeham on Agency, §531.* 2. By an amendment to the declaration, it was sought to excuse the omission of a demand, by an allegation that the defendant had rendered a false account of his illegal trust. He was under no obligation to account at all; and rendering a false account was therefore no violation of his legal duty. It was the same as rendering none. By his amendment to the declaration, the plaintiff brought forward this illegal trust and the abuse of it upon which to ground his right to maintain the action without first making a demand. He sought to go through the trust relation to gain the standing which a demand would have given him; and thus he invoked the illegal element of the transaction upon an essential branch of his case. The declaration as amended was as defective as it was before amendment. It would be as much contrary to public policy to permit the plaintiff to go through the illegal trust to establish his right to sue in reference to the element of demand as in reference to any other essential of his case. The demurrer, however, ought to have been sustained upon the single ground of the failure to allege demand; and in order that the case may stand upon the record as we think it stands in law, we direct that [247] the judgment he modified so as to he a judgment not generally sustaining the demurrer, hut sustaining it upon the ground that no demand was alleged; and with this modification the judgment is affirmed. Footnotes [*] Jonea vs. Cavanaugh. (Mass.), 21 N. E. 300.