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Dismissal-for attempt to suppress testimony.

dismissal in disregard of the merits. A substantial fine for contempt is usually held to be sufficient to compensate an offense against the maxim, "Omnia præsumuntur contra spoliatorem," and the offended dignity of the court. This should be so in every case where it is uncertain whether the attempt, if made at all, took other form than mere persuasion, and the testimony is forthcoming before the court is called upon to pass judgment on the merits.

Much of the briefs and arguments are taken up with a discussion of the doctrine of clean hands, and the fact that appellants joined respondents in a suppression of the truth in their dealings with Galbraith, and that they did not make others who had an interest in the subject-matter parties to the suit. But we are content to follow the conclusion of the trial judge, that is, that appellants may recover if not barred by the Statute of Limitations. However, it is not out of place to say that the doctrine comprehended in the maxims, "Ex turpi causa non oritur actio," and "He who comes into equity must come with clean hands," is not to be applied under the facts of this case. There

Action-arising from bad cause

axim.

was no evil in the subject-matter of the contract which the parties made. If evil followed the execution of the contract, the respondents were the first actors.

Under the doctrine relied on, relief is denied where a right arises in equity, as in the case of the highwayman, illustrated by Lord

Kenyon, and referred to in most of the books and in many cases, that is to say, where the subject-matter of the contract has no legal status. Or where a decree would operate to place the title to property which, in equity, belongs to another, in the hands of a wrongdoer, the most frequent illustration of the latter being where one executes a deed with secret trust in fraud of his creditors.

Equitymaxim-clean hands-fraud on stranger.

We have here a different case. Respondents say, Although we may have acted in fraud of your rights, you cannot recover, because you were a party to a fraud which we practised upon another. If appellants were guilty of a fraud upon a coworker, the fraud was invited by the respondents. The third party is not complaining. On the contrary, he has made common cause with the appellants; and to hold that a court of equity cannot search a contract that is neither proscribed nor contrary to good morals, because of a fraud affecting a third party or a collateral right, would lead to the absurd consequence that a defendant in a suit would take a decree equivalent in its legal force to affirmative relief under the plea of corrupt participation.

Respondents were put in no worse position by the alleged fraudulent acts of the appellants. On the contrary, they profited by them. The maxims, "He who comes into equity must come with clean hands," or, maxim as to after suit brought,

-meaning of

clean hands.

"He who seeks equity must do equity," mean no more than that he who has defrauded his adversary to his injury in the subject-matter of the action will not be heard to assert a right in equity. Respondents have not been misled or overreached. By no act of appellants have they been worsted. In the application of principles it is important that we do not put one principle at war with another. While courts will not, as a rule, measure equities between wrongdoers, they are quite as careful to deny to any man the advan

(95 Wash. 171, 163 Pac. 395.)

tage of his own wrong. In passing upon this phase of the case, the court below resorted to an illustration, unique, but having the merit of clarity and simplicity: "The subject-matter of this litigation is the fund received from Mr. Corbin for the sale of these coal lands. Now, in the first distribution of that fund, plaintiffs have confessedly soiled their hands, and it seemed to me that that ought to be sufficient to invoke the maxim. But further reflection convinces me that the rule does not go that far. I have tried to visualize the soiling of hands, and the homely picture may help to grasp the situation. Let us suppose that the fund, cash and stock, was placed by Mr. Corbin in a vessel and handed to the defendants. The color of the fund, we will say, is black. Before defendants take the vessel to plaintiffs, they put their hands into it and extract the stock. Their hands are stained black. The color of the fund remaining, the cash, has changed from black to red. Defendants now take the vessel to plaintiffs and say: 'Here is the whole fund; let us extract some of it before taking it to Galbraith.' Accordingly, they dip their hands into the vessel and take out cash, leaving but $75,000. Their hands are stained red, and the color of the fund again changes to transparent crystal, and it is distributed. The maxim will prevent any party whose hands are soiled from litigating with respect to the fund bearing the color of his hand stains, and no other. In this case, the fund is the stock and its color is black; plaintiffs had no opportunity to immerse their hands into the vessel when it was black, hence they are not black. The fact

that they are stained red-by another fund, another transactionwill not prevent them from litigating now over this fund."

To apply the maxims relied on to the facts in this case would but pervert them; to say that if any man hath done a wrong to another, he shall not be heard in any case, either at law or in equity.

We shall not follow counsel in their criminations and recriminations. They lead only to collateral questions, and tend to cloud the real issue. Granting equal merit in all the charges made, as, indeed, there has been equal zest in making them, it would seem to follow, if the equities are equal, that the rights of the parties should be -equal equimeasured by the ties-legal rules of law. The parties should not be heard in equity, where the merit of the case is clear, and the charge made against the complaining party is collateral to the main issue.

rights.

In conclusion, and without violating our holdings that the Statute of Limitations is not an unconscionable defense, we hold that it may be, in the light of all attending facts, a technical one, and unless the bar is established by testimony having the earmarks of truth in sufficient degree actions to appeal to a court defense-when of conscience, it should never be resorted to to defeat positive equities.

Limitation of

established.

Reversed, and remanded with instructions to enter a decree in favor of the appellants.

Ellis, Ch. J., Mount, Fullerton, and Morris, JJ., concur.

Petition for rehearing denied.

ANNOTATION.

He who comes into equity must come with clean hands.

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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.

III.--continued.

f. Inducing breach of contract, 78.

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

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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

nents of conscience, and in enforcing them it demands conscientiousness in the parties. He that cometh into equity must have clean hands."

But, as is stated by Pomeroy in his work on Equity Jurisprudence, "It is not, in its ordinary operation and effect, the foundation and source of any equitable estate or interest, nor of any distinctive doctrine of the equity ju risprudence," but "is rather a universal rule, guiding and regulating the action of equity courts in their interposition on behalf of suitors for any and every purpose, and in their administration of any and every species of relief." 1 Pom. Eq. Jur. 3d ed. § 397, p. 656.

The maxim has been held to have no application in actions at law. Thus, in Hoosier Min. Co. v. Union Trust Co. (1917) 173 Ky. 505, 191 S. W. 305, the court said: "The 'clean hands' doctrine is a tool of courts of equity only, and is not an instrument of the law, applicable in courts of law; this being an ordinary action in the nature of ejectment, there is no room for its application."

However, in Slocum v. Slocum (1902) 37 Misc. 143, 74 N. Y. Supp. 448, an action instituted by a mother to procure the annulment of the marriage of her infant son, wherein marital infidelity of the son was charged in a counterclaim for a divorce, the action was said by the court not to be in equity, and it was held that equitable relief could not therein be applied. The court nevertheless based its holding that it could not, "by force of the facts admitted, apply the relief which equity sometimes affords, of leaving the parties in the position in which we find them, when they do not come into court with clean hands," on the fact that the complainant, not being a party to the marriage involved in the litigation, must be presumed to be innocent of any wrongdoing connected therewith, and entitled to maintain the action.

Where, by a statute, a court of equity is empowered to issue a writ of mandamus, it has been held that the plaintiff, suing in a court of equity for such relief, must come into court with "clean hands." Funck v. Farm

ers Elevator Co. (1909) 142 Iowa, 621, 24 L.R.A. (N.S.) 108, 121 N. W. 53.

And an act enlarging the jurisdiction of courts of equity has been held not to deprive those tribunals of the right to require, as theretofore, that parties seeking relief in such courts should come with "clean hands." Lenoir v. Mining Co. (1889) 88 Tenn. 168, 14 S. W. 378.

The maxim, "He who comes into equity must come with clean hands," is based on conscience and good faith. American Asso. v. Innis (1900) 109 Ky. 595, 604, 60 S. W. 388; Vulcan Detinning Co. v. American Can Co. (1906) 72 N. J. Eq. 392, 12 L.R.A. (N.S.) 102, 67 Atl. 339. And it has been held that it is based on the maxim, "He who asks equity must do equity." Ansley v. Wilson (1873) 50 Ga. 422.

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However, it has also been held to be more comprehensive than the latter maxim. Kinner v. Lake Shore & M. S. R. Co. (1904) 69 Ohio St. 344, 69 N. E. 614, wherein the court said: "The maxim ['He who comes into equity must come with clean hands'] is more comprehensive in its results than is the kindred maxim, that ‘He who seeks equity must do equity.' The latter, in the cases to which it applies, defines conditions which should be annexed to a decree granting equitable relief, while that which is here invoked ['clean hands'], in the cases to which it applies, denies to the plaintiff all relief; but so similar are they and the reasons upon which they stand in all the cases to which they apply that, in some of the earlier cases and commentaries on equity jurisprudence, the entire subject is treated as comprehended within the maxim lastly stated."

The difference between the maxims, "He who comes into equity must come with clean hands," and "He who seeks equity must do equity," in their application by the courts, has been held to be that in the case of the latter it is of necessity assumed that equities have arisen out of the subject-matter of the litigation in favor of both parties to the suit, but it is not assumed that the party seeking the aid of the

court is guilty of any inequitable conduct. On the other hand, the assumption in the application of the principle embodied in the maxim, "He who comes into equity must come with clean hands," is that the party asking the aid of the court is guilty of inequitable conduct in connection with the subject-matter of the suit. Harton v. Little (1914) 188 Ala. 640, 65 So. 951; Post v. Campbell (1901) 110 Wis. 386, 85 N. W. 1032.

The maxims, "He who comes into equity must come with clean hands," and "He that hath committed iniquity shall not have equity," have been said to state the same principle.

United States.-Michigan Pipe Co. v. Fremont Ditch, Pipe Line & Reservoir Co. (1901) 49 C. C. A. 324, 111 Fed. 284.

Alabama.-Harton v. Little (Ala.)

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Massachusetts.-Rudnick phy (1913) 213 Mass. 470, 100 N. E. 643, Ann. Cas. 1914A, 538.

Missouri.-Houtz v. Hellman (1910) 228 Mo. 655, 128 S. W. 1006; Little v. Cunningham (1906) 116 Mo. App. 545, 92 S. W. 734.

New Jersey.-Woodward v. Woodward (1886) 41 N. J. Eq. 224, 4 Atl. 424.

New York. Weiss v. Herlihy (1897) 23 App. Div. 608, 49 N. Y. Supp. 86.

Pennsylvania.-Palmer V. Harris (1868) 60 Pa. 159, 100 Am. Dec. 557; Simcox's Estate (1894) 15 Pa. Co. Ct. 386; Englander v. Apfelbaum (1913) 56 Pa. Super. Ct. 152.

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dently, if under this state of facts the petitioners' remedy had been in equity, and if they were now seeking by equitable process to compel their neighbors to leave open the full space which it is claimed should be left open upon their neighbors' land, the petitioners would fail, both for the reason that they who seek equity must do equity, and because it could not be said that they came into court with clean hands, or, as an old maxim puts it, 'He that hath committed iniquity shall not have equity.'"

In Little v. Cunningham (1906) 116 Mo. App. 545, 92 S. W. 734, it was said: "One of the ancient and familiar maxims of equity jurisprudence is that 'He who comes into equity must come with clean hands.' The maxim has been otherwise stated: 'Who does iniquity shall not have equity.''

The maxim, "He who comes into equity must come with clean hands," has been held to include within its operation certain other maxims, to wit: "No right of action can arise out of an immoral cause;" "No right of action can arise out of fraud or deceit;" "A right cannot arise to anyone out of his own wrong;" "Both parties to the litigation being equally at fault, the defendant's position is the stronger." Baird v. Howison (1908) 154 Ala. 366, 45 So. 668; Harton v. Little (1914) 188 Ala. 640, 65 So. 951; Barnes v. Starr (1894) 64 Conn. 154, 28 Atl. 980.

Thus, in Barnes v. Starr (Conn.) supra, the court said: "The rule just quoted, that he who comes into equity must come with clean hands, is a broad one. It includes within its operation several other maxims frequently acted upon in courts of equity; as, 'Ex turpi causa non actio oritur;' 'Ex dolo malo non oritur actio;' 'Jus ex injuria non oritur;' 'In pari delicto potior est conditio defendentis.' The fundamental reason upon which each of these maxims seems to rest is, that a party does not come into court with clean hands to whose cause either of these maxims may be justly applied."

The principle of this maxim applies equally to all of the parties to a suit

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