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Dismissal-for Attempt to suppress

maxim-clean hands-fraud on stranger.

336, Fed. Cas. No. 1,219. So, where Kenyon, and referred to in most of a witness works industriously on one the books and in many cases, that is

side of a cause, and to say, where the subject-matter of -witness deserting to then turns up on the the contract has no legal status. Or other side.

other side, and be- where a decree would operate to trays the confidence reposed in him, place the title to property which, in he is not to be believed. Moore, equity, belongs to another, in the Facts, $ 1006; Blake v. Blake, 70 Ill. hands of a wrongdoer, the most fre618.

quent illustration of the latter being But if it were true that one of the where one executes a deed with seappellants endeavored to suppress cret trust in fraud of his creditors. testimony, we doubt whether it We have here a different case. should ever warrant a judgment of Respondents say, Although we may

dismissal in disre- have acted in fraud of your rights, gard of the merits. you cannot recover, because you

A substantial fine were a party to a fraud which we testimony. for contempt is usu- practised upon another.

If appelally held to be sufficient to compen- lants were guilty of a fraud upon a sate an offense against the maxim, coworker, the fraud was invited by “Omnia præsumuntur contra spoli- the respondents. The third party is atorem," and the offended dignity of not complaining. On the contrary, the court. This should be so in every he has made com

Equitycase where it is uncertain whether mon cause with the the attempt, if made at all, took appellants; and to other form than mere persuasion, hold that a court of and the testimony is forthcoming be- equity cannot search a contract fore the court is called upon to pass that is neither proscribed nor conjudgment on the merits.

trary to good morals, because of a Much of the briefs and arguments fraud affecting a third party or a are taken up with a discussion of the collateral right, would lead to the

a doctrine of clean hands, and the fact absurd consequence that a defendthat appellants joined respondents ant in a suit would take a decree in a suppression of the truth in their equivalent in its legal force to affirmdealings with Galbraith, and that

ative relief under the plea of corthey did not make others who had an interest in the subject-matter par

rupt participation.

Respondents were put in no worse ties to the suit. But we are con

position by the alleged fraudulent tent to follow the conclusion of the

acts of the appellants. On the contrial judge, that is, that appellants trary, they profited by them. The may recover if not barred by the maxims, "He who comes into equity Statute of Limitations. However,


must come with it is not out of place to say that the

-meaning of

clean hands," or, maxim as to doctrine comprehended in the max- after suit brought,

clean hands. ims, “Ex turpi causa non oritur “He who seeks equity must do actio," and "He who comes into equity,” mean no more than that he equity must come with clean hands," who has defrauded his adversary to is not to be applied under the facts his injury in the subject-matter of

of this case. There the action will not be heard to asAction-arising from bad cause- was no evil in the sert a right in equity. Respondents

subject-matter of have not been misled or overreached. the contract which the parties made. By no act of appellants have they If evil followed the execution of the been worsted. In the application of contract, the respondents were the principles it is important that we do first actors.

not put one principle at war with Under the doctrine relied on, re- another. While courts will not, as a lief is denied where a right arises rule, measure equities between in equity, as in the case of the wrongdoers, they are quite as carehighwayman, illustrated by Lord ful to deny to any man the advan


(95 Wash. 171, 163 Pac. 395.) tage of his own wrong. In passing that they are stained red-by anupon this phase of the case, the other fund, another transactioncourt below resorted to an illustra- will not prevent them from litigattion, unique, but having the merit of ing now over this fund.” clarity and simplicity: “The sub- To apply the maxims relied on to ject-matter of this litigation is the the facts in this case would but perfund received from Mr. Corbin for vert them; to say that if any man the sale of these coal lands. Now, hath done a wrong to another, he in the first distribution of that fund, shall not be heard in any case, either plaintiffs have confessedly soiled at law or in equity. their hands, and it seemed to me We shall not follow counsel in that that ought to be sufficient to in- their criminations and recriminavoke the maxim. But further reflec- tions. They lead only to collateral tion convinces me that the rule does questions, and tend to cloud the real not go that far. I have tried to issue. Granting equal merit in all visualize the soiling of hands, and the charges made, as, indeed, there the homely picture may help to has been equal zest in making them, grasp the situation. Let us suppose it would seem to follow, if the equithat the fund, cash and stock, was ties are equal, that the rights of the placed by Mr. Corbin in a vessel and parties should be

-equal equi. handed to the defendants. The color measured by the ties-legal of the fund, we will say, is black. rules of law.


The Before defendants take the vessel to parties should not be heard in plaintiffs, they put their hands into equity, where the merit of the case it and extract the stock. Their is clear, and the charge made hands are stained black. The color against the complaining party is colof the fund remaining, the cash, has lateral to the main issue. changed from black to red. Defend- In conclusion, and without violatants now take the vessel to plaintiffs ing our holdings that the Statute of and say: 'Here is the whole fund; Limitations is not an unconscionable let us extract some of it before tak- defense, we hold that it may be, in ing it to Galbraith.' Accordingly, the light of all attending facts, a they dip their hands into the vessel technical one, and unless the bar is and take out cash, leaving but established by testimony having the $75,000. Their hands are stained earmarks of truth red, and the color of the fund again in sufficient degree actions, changes to transparent crystal, and to appeal to a court


established. it is distributed. The maxim will of conscience, it prevent any party whose hands are should never be resorted to to desoiled from litigating with respect feat positive equities. to the fund bearing the color of his Reversed, and remanded with inhand stains, and no other. In this structions to enter a decree in favor case, the fund is the stock and its of the appellants. color is black; plaintiffs had no opportunity to immerse their hands

Ellis, Ch. J., Mount, Fullerton, and

Morris, JJ., concur. into the vessel when it was black, hence they are not black. The fact Petition for rehearing denied.

Limitation of


He who comes into equity must come with clean hands.

I. Introductory, 44. II. Misconduct justifying application

of maxim generally: a. General rule, 48. b. Illustrations, 50. c. Necessity of injury to adverse

party, 58. d. Wrong which has been righted,

59. e. Conduct pending suit or at

trial, 60. f. Act of agent, 61 g. Improper motive, 61. h. Illegal conduct, 62. i. Parties in delicto, 64. j. Conduct not directly connected

with matter in litiga

1. Generally, 65.

2. Illustrations, 68. III. Inequitable conduct affecting con

tract: a. In general, 70, b. Affecting person not party to

contract, 73. c. Failure to perform contract,

73. d. Failure to return benefits of

contract, 76. e. Lack of mutuality in contract,



f. Inducing breach of contract,

g. Fraud, 79.
h. Illegality:

1. Rule stated, 80.
2. Application of rule, 80.

3. Qualification of rule, 82. IV. Breach of trust or confidence, 83. V. Fraud :

a. General rule, 85.
b. Application of rule, 87.

c. Qualification of rule, 90. VI. Deception of public:

a. In business generally, 92.
b. As to composition or proper.

ties of article, 95.
c. As to identity of manufacturer

of article, 97. d. As to place of manufacture

of article, 99. VII. Fraudulent assignment of property:

a. In general, 99.
b. To defraud creditors:

1. General rule, 100.

2. Qualification of rule, VIII. Act contravening statute:

a. In general, 104.
b. Act not directly connected

with matter in litigation,

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1. Introductory. Because of the impracticability of collecting all of the cases in which the principle embodied in the maxim, "He who comes into equity must come with clean hands," has been applied with any degree of certainty as to the intended application therein of that principle, owing to the fact that in many cases wherein such an application is possibly made the maxim is not mentioned, this note is confined to a discussion of the decisions in which some reference is made to the maxim as having a bearing on the equities involved in the suit.

The maxim, “He who comes into equity must come with clean hands," states a fundamental principle of equity jurisprudence.

United States.-Primeau v. Granfield (1911) 114 C. C. A. 549, 193 Fed. 911, writ of certiorari denied in (1912) 225 U. S. 708, 56 L. ed. 1267, 32 Sup.

Ct. Rep. 839; Weegham v. Killefer (1914) 215 Fed. 171, affirmed in (1914) L.R.A.1915A, 820, 131 C. C. A. 558, 215 Fed. 289.

Kentucky.-American Asso. v. Innis (1900) 109 Ky. 604, 60 S. W. 388.

Maine.-Conners v. Conners Bros. Co. (1913) 110 Me. 428, 86 Atl. 843.

Missouri.-Creamer v. Bivert (1908) 214 Mo. 485, 113 S. W. 1118; Avery v. Central Bank (1909) 221 Mo. 87, 119 S. W. 1106.

Ohio.-Kahn v. Walton (1888) 46 Ohio St. 207, 20 N. E. 203.

Pennsylvania. — Hays's Estate (1893) 159 Pa. 383, 28 Atl. 158.

Texas.--Sanders v. Cauley (1908) 52 Tex. Civ. App. 261, 113 S. W. 560.

Thus, in Primeau V. Granfield (Fed.) supra, the court said: “It is a fundamental principle of equity jurisprudence that a court of equity will exercise its extraordinary powers only for the enforcement of the require

nients of conscience, and in enforcing ers Elevator Co. (1909) 142 Iowa, 621, them it demands conscientiousness in 24 L.R.A.(N.S.) 108, 121 N. W. 53. the parties. He that cometh into And an act enlarging the jurisdicequity must have clean hands.". tion of courts of equity has been held

But, as is stated by Pomeroy in his not to deprive those tribunals of the work on Equity Jurisprudence, “It is right to require, as theretofore, that not, in its ordinary operation and ef

parties seeking relief in such courts fect, the foundation and source of any should come with "clean hands." equitable estate or interest, nor of any Lenoir v. Mining Co. (1889) 88 Tenn. distinctive doctrine of the equity ju.. 168, 14 S. W. 378. risprudence," but "is rather a uni

The maxim, "He who comes into versal rule, guiding and regulating the

equity must come with clean hands," action of equity courts in their inter

is based on conscience and good faith. position on behalf of suitors for any

American Asso. v. Innis (1900) 109 and every purpose, and in their administration of any and every species

Ky. 595, 604, 60 S. W. 388; Vulcan Deof relief." 1 Pom. Eq. Jur. 3d ed. 8

tinning Co. v. American Can Co.

(1906) 72 N. J. Eq. 392, 12 L.R.A. 397, p. 656.

(N.S.) 102, 67 Atl. 339. And it has The maxim has been held to have

been held that it is based on the no application in actions at law. Thus,

maxim, "He who asks equity must do in Hoosier Min. Co. v. Union Trust Co. (1917) 173 Ky. 505, 191 S. W. 305,

equity." Ansley v. Wilson (1873) 50

Ga. 422. the court said: "The 'clean hands' doctrine is a tool of courts of equity

However, it has also been held to be only, and is not an instrument of the

more comprehensive than the latter

maxim. Kinner v. Lake Shore & M. S. law, applicable in courts of law; this

R. Co. (1904) 69 Ohio St. 344, 69 N. E. being an ordinary action in the nature

614, wherein the court said: “The of ejectment, there is no room for its

maxim ['He who comes into equity application." However, in Slocum Slocum


must come with clean hands'] is more (1902) 37 Misc. 143, 74 N. Y. Supp.

comprehensive in its results than is

the kindred maxim, that 'He who seeks 448, an action instituted by a mother

equity must do equity. The latter, in to procure the annulment of the marriage of her infant son, wherein mar

the cases to which it applies, defines ital infidelity of the son was charged

conditions which should be annexed to in a counterclaim for a divorce, the

a decree granting equitable relief,

while that which is here invoked action was said by the court not to be

['clean hands'], in the cases to which in equity, and it was held that equitable relief could not therein be ap

it applies, denies to the plaintiff all plied. The court nevertheless based

relief; but so similar are they and the its holding that it could not, "by force

reasons upon which they stand in all of the facts admitted, apply the relief

the cases to which they apply that, in

some of the earlier cases and comwhich equity sometimes affords, of leaving the parties in the position in

mentaries on equity jurisprudence, the which we find them, when they do not

entire subject is treated as compre

hended within the maxim lastly come into court with clean hands," on the fact that the complainant, not be


The difference between the maxims, ing a party to the marriage involved in the litigation, must be presumed to

"He who comes into equity must come be innocent of any wrongdoing con

with clean hands," and "He who seeks nected therewith, and entitled to main

equity must do equity," in their aptain the action.

plication by the courts, has been held Where, by a statute, a court of

to be that in the case of the latter it equity is empowered to issue a writ is of necessity assumed that equities of mandamus, it has been held that have arisen out of the subject-matter the plaintiff, suing in a court of equity of the litigation in favor of both parfor such relief, must come into court ties to the suit, but it is not assumed rith "clean hands." Funck v. Farm- that the party seeking the aid of the

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court is guilty of any inequitable con- dently, if under this state of facts the duct. On the other hand, the assump- petitioners' remedy had been in equity, tion in the application of the principle and if they were now seeking by equiembodied in the maxim, "He who table process to compel their neighcomes into equity must come with bors to leave open the full space which clean hands," is that the party asking it is claimed should be left open upon the aid of the court is guilty of in- their neighbors' land, the petitioners equitable conduct in connection with would fail, both for the reason that the subject-matter of the suit. Harton they who seek equity must do equity, v. Little (1914) 188 Ala. 640, 65 So. and because it could not be said that 951; Post v. Campbell (1901) 110 Wis. they came into court with clean hands, 386, 85 N. W. 1032.

or, as an old maxim puts it, 'He that The maxims, "He who comes into hath committed iniquity shall not have equity must come with clean hands," equity.'and “He that hath committed iniquity In Little v. Cunningham (1906) shall not have equity," have been said 116 Mo. App. 545, 92 S. W. 734, it was to state the same principle.

said: “One of the ancient and familiar United States.—Michigan Pipe Co. maxims of equity jurisprudence is v. Fremont Ditch, Pipe Line & Reser- that 'He who comes into equity must voir Co. (1901) 49 C. C. A. 324, 111 come with clean hands. The maxim Fed. 284,

has been otherwise stated: “Who does Alabama.-Harton v. Little (Ala.) iniquity shall not have equity.'” supra.

The maxim, “He who comes into Arkansas. — Shattuck V. Watson equity must come with clean hands," (1890) 53 Ark. 150, 7 L.R.A. 551, 13 S. has been held to include within its W. 516.

operation certain other maxims, to . Illinois.—BARNES V. BARNES (report- wit: "No right of action can arise ed herewith) ante, 4.

out of an immoral cause;" “No right of Indiana.—Pittsburgh, C. C. & St. L. action can arise out of fraud or deR. Co. v. Crothersville (1902) 159 Ind. ceit;" "A right cannot arise to any330, 64 N. E. 914.

one out of his own wrong;” “Both parKentucky. -Semonin V. Duerson ties to the litigation being equally at (1891) 13 Ky. L. Rep. 171.

fault, the defendant's position is the Maryland.-Lord v. Smith (1908)

stronger." Baird v. Howison (1908) 109 Md. 51, 71 Atl. 430.

154 Ala. 366, 45 So. 668; Harton v. LitMassachusetts.-Rudnick v. Mur

tle (1914) 188 Ala. 640, 65 So. 951; phy (1913) 213 Mass. 470, 100 N. E.

Barnes v. Starr (1894) 64 Conn. 154, 643, Ann. Cas. 1914A, 538.

28 Atl. 980. Missouri.—Houtz v. Hellman (1910)

Thus, in Barnes v. Starr (Conn.) 228 Mo. 655, 128 S. W. 1006; Little v.

supra, the court said: “The rule just Cunningham (1906) 116 Mo. App. 545,

quoted, that he who comes into equity 92 S. W. 734.

must come with clean hands, is a New Jersey.-Woodward v. Wood- broad one. It includes within its ward (1886) 41 N. J. Eq. 224, 4 Atl. operation several other maxims fre424.

quently acted upon in courts of New York.–Weiss v. Herlihy (1897) equity; as, 'Ex turpi causa non actio 23 App. Div. 608, 49 N. Y. Supp. 86. oritur;' 'Ex dolo malo non oritur ac

Pennsylvania.—Palmer Harris tio;' 'Jus ex injuria non oritur;' 'In (1868) 60 Pa. 159, 100 Am. Dec. 557; pari delicto potior est conditio defenSimcox's Estate (1894) 15 Pa. Co. Ct. dentis.' The fundamental reason upon 386; Englander v. Apfelbaum (1913) which each of these maxims seems to 56 Pa. Super. Ct. 152.

rest is, that a party does not come into Wisconsin. — Post V. Campbell court with clean hands to whose (1901) 110 Wis. 386, 85 N. W. 1032. cause ei er these maxims may be

Thus, in Rudnick v. Murphy (1913) justly applied." 213 Mass. 470, 100 N. E. 643, Ann. The principle of this maxim applies Cas. 1914A, 538, the court said: "Evi- equally to all of the parties to a suit

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