Dancy v. Phelan

• Decision Date: 12 October 1889
• Citation: 10 S.E. 205,82 Ga. 243
• Parties: DANCY v. PHELAN.
• Court: Georgia Supreme Court

10 S.E. 205

82 Ga. 243

DANCY v. PHELAN.

Supreme Court of Georgia

October 12, 1889

Syllabus by the Court.

1. One who has deposited money with another, to be used in a speculation upon chances, or the purchase of "futures," has no right of action to recover it back until after demand for its return or repayment.

2. A demand is not dispensed with by a fraudulent execution of the illegal trust or a false and fraudulent account of the result.

Error from city court of Atlanta; VAN EPPS, Judge.

Denmark & Adams and Hall & Hammond, for plaintiff in error.

Jackson & Jackson, for defendant in error.

BLECKLEY C.J.

1. When one deposits money with another, to be used in illicit commerce, the transaction is pure as a mere bailment for custody and preservation of the money, but for nothing else. While the illegal instructions are unrevoked, there is no duty to account or pay over, 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, Bailm. § 107; Mechem, Ag. § 531; Jones v. Cavanaugh, (Mass.) 21 N.E. 306.

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...