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from expending public money in prosecuting a criminal action was to hamper the prosecution of such action, and not in reality to protect the public fund, were held to be in court with "unclean hands," and the relief prayed was denied.

Likewise in Cook v. Chapman (1878) 30 N. J. Eq. 118, relief was denied in a suit brought by a member of a firm to restrain the further prosecution by his firm of certain attachment suits against a corporation, instituted for the collection of claims of the firm, and to secure the appointment of a receiver to "manage, control, collect, and compromise" the claims. The suit was brought at the instigation of the corporation, and in accordance with an understanding between the plaintiff and the corporation, and the object of the suit was in reality to defeat utterly the just claims of the firm.

However, the improper motive must be established (Curtin v. Benson (1911) 222 U. S. 78, 56 L. ed. 102, 32 Sup. Ct. Rep. 31), and where it does not appear that a suit was prosecuted in furtherance of the improper motive charged, the relief prayed by the party charged with the inequitable conduct should not be denied on the ground that because thereof he is in court with "unclean hands." Upchurch v. Anderson (1898) Tenn., 52 S. W. 917.

Furthermore, if the improper motive pleaded by a party to a suit has no immediate connection with the subject-matter of the litigation, it should not bar a recovery by his opponent. Thus, a charge that the purpose of the complainant was the creation of an unlawful monopoly has been held not to be a bar to the relief prayed, because having no immediate relation to the subject-matter of the litigation. Bonsack Mach. Co. v. Smith (1895) 70 Fed. 386, wherein the defendant contended that one of the plaintiffs, in purchasing a number of patents for machinery for the manufacture of cigarettes, licensing another concern, its coplaintiff, exclusively to use the machinery, and instituting what it alleged was frivolous and vexatious litigation against its competitors, was

seeking to create in itself and coplaintiff an illegal monopoly of the business of manufacturing cigarettes. The court held that this alleged motive of the plaintiffs had no connection with the matter involved in the suit, which was to restrain the infringement of the patents, and that the case, therefore, was not one for the application of the principle of the maxim, in the absence of any fraudulent or improper conduct by the plaintiff toward the defendant.

In Camors-McConnell Co. v. McConnell (1904) 140 Fed. 412, affirmed in (1906) 72 C. C. A. 681, 140 Fed. 987, wherein one selling his business to another agreed that he would not engage in business in competition with the purchaser so as to affect injuriously the value of the property and business sold, it was held that the alleged purpose of the purchaser in acquiring the said business, to create an illegal monopoly, could not be pleaded as a defense to a suit to enjoin the seller from entering into competition with the purchaser in his business, to show that the latter was not in court with "clean hands," for the reason that the illegal conduct of the purchaser was not connected with the contract which was the subject-matter of the suit.

h. Illegal conduct.

Misconduct, in order to justify a court of equity in refusing its aid to a litigant in the application of the principle of this maxim, need not be criminal in its nature, or such as would be sufficient to sustain a legal action. Weegham v. Killefer (1914) 215 Fed. 171, affirmed in (1914) L.R.A. 1915A, 820, 131 C. C. A. 558, 215 Fed. 289; Harton v. Little (1914) 188 Ala. 640, 65 So. 951; Anders v. Sandlin (1914) 191 Ala. 158, 67 So. 684.

Thus, in Harton v. Little (1914) 188 Ala. 640, 65 So. 951, supra, the court said: "For a court of equity to deny relief for misconduct on the part of complainant, it is not essential that the fraud or deceit be such as would be a defense to an action at law, or even that it should be such as would require a court of equity to cancel the contract, as appears from quotation

herein quoted from § 400, 1 Pom. Eq. Jur. If he has nevertheless been guilty of unscrupulous practices, or overreaching, or has concealed important facts, even though not actually fraudulent, or been guilty of trickery, or taking undue advantage of his position, or other unconscientious conduct, then a court of equity may deny relief, although such may not constitute a defense at law."

In Anders v. Sandlin (1914) 191 Ala. 158, 67 So. 684, it was held that "the maxim, 'He who comes into equity must come with clean hands,' is not confined alone to those cases where fraud or illegality prevents a suitor from obtaining relief in equity, but, as said by Mr. Pomeroy: 'Any really unconscientious conduct connected with the controversy, to which he is a party, will repel him from the forum whose very foundation is good conscience.' 1 Pom. Eq. Jur. § 404."

But where conduct, in addition to being unconscionable, is also illegal, a court of equity will, of course, refuse its aid to any person or persons guilty thereof. Primeau v. Granfield (1911) 114 C. C. A. 549, 193 Fed. 911, writ of certiorari denied (1912) 225 U. S. 708, 56 L. ed. 1267, 32 Sup. Ct. Rep. 839; Chicago v. Union StockYards & Transit Co. (1896) 164 III. 236, 35 L.R.A. 281, 45 N. E. 430; Avery v. Central Bank (1909) 221 Mo. 71, 119 S. W. 1106; Weiss v. Herlihy (1897) 23 App. Div. 608, 49 N. Y. Supp. 86; Kahn v. Walton (1888) 46 Ohio St. 207, 20 N. E. 203; International Land Co. v. Marshall (1908) 22 Okla. 693, 19 L.R.A. (N.S.) 1056, 98 Pac. 957.

Thus, in Primeau V. Granfield (1911) 114 C. C. A. 549, 193 Fed. 911, writ of certiorari denied (1912) 225 U. S. 708, 56 L. ed. 1267, 32 Sup. Ct. Rep. 839, after stating the maxim, the court said: "Interwoven with these elementary equitable principles are those considerations of public policy which require the fostering of common honesty. A court of justice does not sit for the promotion of fraud or illegality. It is no part of its function to aid any party to a fraudulent or illegal scheme in carrying it out, in

adjusting its accounts, or in dividing its spoils. It will take the parties to such a scheme as it finds them, and as it finds them will leave them without assistance in their fraudulent enterprise. These principles are not new. Indeed, they were old in 1725, when John Everet filed a bill against his partner for an accounting of dealings with good success at Hounslow Heath, but when it appeared that the trade was taking the purses of those who traveled over the heath, the court would not endure the bill.' 9 Law Quarterly Rev. 105, 197."

In Avery v. Central Bank (1909) 221 Mo. 71, 119 S. W. 1106, it was said: "It is a cardinal maxim of equity that he who seeks equity must come into court with clean hands. It is against public policy to adjust equities between wrongdoers, or to permit courts, maintained by the common purse, to fritter away time (mortgaged to justice) indemnifying those suffering loss by reason of violation of law."

In Kahn v. Walton (1888) 46 Ohio St. 195, 20 N. E. 203, it was said: "It is a fundamental rule of equity that parties wanting its aid must come with clean hands. Courts of equity require honesty, good faith, and legality in transactions between men; and if a party would pursue his remedy therein, his demand must not rest on a violation of law for its foundation, or arise from his own illegal acts, or conduct contra bonos mores."

However, illegality which has no connection with or is only indirectly connected with the subject-matter of the litigation will not bar one seeking the aid of a court of equity from the relief prayed. Yale Gas Stove Co. v. Wilcox (1894) 64 Conn. 101, 25 L.R.A. 90, 42 Am. St. Rep. 159, 29 Atl. 303; Mason v. Carrothers (1909) 105 Me. 409, 74 Atl. 1030; Weiss v. Herlihy (1897) 23 App. Div. 608, 49 N. Y. Supp. 86.

Thus, in the case first cited the court said: "The maxim that 'he who comes into equity must come with clean hands' has no such application as the defendant seeks to give it. It refers solely to wilful misconduct in regard to the matter in litigation. Snell's Eq.

35. Though an obligation be indirectly connected with an illegal transaction, it will not thereby be barred from enforcement, if the plaintiff does not require the aid of the illegal transaction to make out his case."

In Mason v. Carrothers (1909) 105 Me. 409, 74 Atl. 1030, it was held that "the maxim of clean hands applies solely to some wilful misconduct with reference to the matter in litigation, and not to some other illegal transaction, although it may be indirectly connected with the subject-matter of the suit."

The principle of this maxim applies as well to illegal conduct which is malum prohibitum as it does to such as is malum in se. Carey v. Smith (1852) 11 Ga. 547, wherein the court said: "It is undoubtedly a principle of equity jurisprudence that he who seeks equity must come into court with clean hands. The general rule is, that where parties are concerned in illegal agreements or other illegal transactions, whether they are mala prohibita or mala in se, courts of equity, following the rule of law, as to participators in a common crime, will not interpose to grant any relief; acting upon the well-known maxim, 'In pari delicto potior est conditio defendentis et possidentis.' In all such cases the rule is to leave the parties where it finds them, giving no relief and no countenance to claims of that character."

It has been held that the principle of "unclean hands" can apply to the case of a complainant in a court of equity, alleged to be tainted with illegality, only when, in order for him to recover in the suit, it is necessary for him to disclose the preceding illegal transaction. Cohn v. Pitzele (1904) 117 Ill. App. 342, affirmed in (1905) 217 Ill. 30, 75 N. E. 392. See also infra, III. h, and VIII.

i. Parties in delicto.

The rule that a court of equity will not lend its aid to a party to a suit who is guilty of inequitable conduct directly connected with the matter in controversy applies notwithstanding the opposite party to the suit also is in delicto, and his wrong is connected with the matter of the suit. Semonin

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v. Duerson (1897) 13 Ky. L. Rep. 169; Wertheimer-Swartz Shoe Co. v. Wyble (1914) 261 Mo. 675, 170 S. W. 1128; Re First Trust & Sav. Bank (1912) 45 Mont. 89, 122 Pac. 561, Ann. Cas. 1913C, 1327; Helsley v. Fultz (1882) 76 Va. 671; Medford v. Levy (1888) 31 W. Va. 649, 2 L.R.A. 368, 13 Am. St. Rep. 887, 8 S. E. 302.

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Thus, in Wertheimer-Swartz Shoe Co. v. Wyble (1914) 261 Mo. 675, 170 S. W. 1128, the court said: "In fact, were they [the defendants] in the penitentiary for crimes growing out of the same fraud, the circumstances would not justify this court in abating its watchfulness to make sure that any litigant seeking the aid of its equity powers to extinguish their interests came with clean hands and a worthy cause."

In Helsey v. Fultz (1882) 76 Va. 671, it was said: "It is a well-established rule of courts of equity not to assist one wrongdoer against another, a doctrine expressed in the maxim that he who comes into equity must come with clean hands."

And the principle applies notwithstanding the parties to the suit are in pari delicto. Peacock v. Terry (1850) 9 Ga. 147; Cornellier v. Haverhill Shoe Mfrs. Asso. (1915) 221 Mass. 554, L.R.A.1916C, 218, 109 N. E. 643; Kahn v. Walton (1889) 46 Ohio St. 207, 20 N. E. 203.

Thus, in Kahn v. Walton (Ohio) supra, after referring to this maxim, the court, in quoting from the opinion of Lord Mansfield in Holman v. Johnson (1775) Cowp. pt. 1, p. 341, 98 Eng. Reprint, 1120, in part said: "If the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for when both are equally in fault, potior est conditio defendentis."

Where the parties to a suit tainted with illegality are equally in the wrong, a court of equity, under the principle of this maxim, will refuse its aid to any of them, but will leave them in the position which their inequitable conduct has created for them. Sinsheimer v. United Garment Workers (1894) 77 Hun, 215, 28 N. Y. Supp.

321, wherein the court said: "It is a familiar principle in equity that the plaintiff must come into court with clean hands. Under the circumstances disclosed by the papers in this case, if the defendants were guilty of any violation of law, the plaintiffs were certainly equally implicated, and under this condition of affairs it is difficult to see how they would have a right to the intervention of a court of equity. In dealing with questions of this nature the court should be studious to see that the rights of all parties are protected; and that the forms of law should not be permitted to be used on behalf of one party against another, when the party seeking the intervention of the court has been endeavoring to secure his ends by means similar to those which he seeks to enjoin on the part of his antagonist." In that case the appeal was from a decree granting an injunction. The parties to the suit were an association of manufacturers and an organization of workmen, each of which was created for its own protection against the other. The act complained of was the issuance of circulars by the workmen's association to tradesmen in other cities, complaining of alleged unjust treatment by the manufacturers' association, and requesting such tradesmen to discontinue their dealings with the members of that organization. This act was but one of the instruments used by the workmen in their contest with the manufacturers. The court found that there were no acts of violence or threats or intimidation committed by the workmen's association, and that its conduct in issuing the circular was lawful. It was also held that the manufacturers' organization was not in court with "clean hands," inasmuch as the course pursued by it against the workmen's association was precisely the same as that of which it complained.

But it has been held that, in the application of the principle of this maxim, if the parties to a suit in equity are not in pari delicto, though they are both in delicto with reference to the subject-matter of the suit, the court will not refuse its aid to the 4 A.L.R.-5.

less guilty thereof on the ground that he is in court with "unclean hands." Conlon v. Hosier (1917) 165 N. Y. Supp. 774; Pinckston v. Brown (1857) 56 N. C. (3 Jones, Eq.) 494. Compare Ilo Oil Co. v. Indiana Natural Gas & Oil Co. (1910) 174 Ind. 635, 30 L.R.A. (N.S.) 1057, 92 N. E. 1. See also the folowing main subdivisions of this note for the application of the rule in reference to parties in pari delicto.

J. Conduct not directly connected with matter in litigation.

1. Generally.

The fact that a party to a suit comes into a court of equity with "unclean hands," it has been held, should not necessarily deprive him of his right to the relief prayed if he is otherwise entitled thereto. Dallavo v. Dallavo (1915) 189 Mich. 350, 155 N. W. 538.

Therefore the decisions are in accord in holding that it is not every wilful and reprehensible act that will preclude a litigant in a court of equity from obtaining the relief prayed, but such conduct, under the principle involved in this maxim, must bear an immediate relation to the subject-matter of the suit, and in some measure affect the equitable relations subsisting between the parties to the litigation and arising out of the transaction.

United States.-Bateman v. Fargason (1880) 2 Flipp. 660, 4 Fed. 32; Bonsack Mach. Co. v. Smith (1895) 70 Fed. 386; Shaver v. Heller & M. Co. (1901) 65 L.R.A. 878, 48 C. C. A. 48, 108 Fed. 834, affirming (1900) 102 Fed. 882; Trice v. Comstock (1903) 61 L.R.A. 176, 57 C. C. A. 646, 121 Fed. 620; Knapp v. S. Jarvis Adams Co. (1905) 70 C. C. A. 536, 135 Fed. 1010; Bossert v. S. Jarvis Adams Co. (1905) 70 C. C. A. 23, 135 Fed. 1015; CamorsMcConnell Co. v. McConnell (1905) 140 Fed. 412, affirmed in (1905) 72 C. C. A. 681, 140 Fed. 987; Cunningham v. Pettigrew (1909) 94 C. C. A. 457, 169 Fed. 344; 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; Talbot v. Independent Order of Owls (1915) 136 C. C. A. 268, 220

Fed. 660; Bentley v. Tibbals (1915) 138 C. C. A. 489, 223 Fed. 252; American Sugar Ref. Co. v. McFarland (1916) 229 Fed. 284 (judgment affirmed in 241 U. S. 79, 60 L. ed. 899) ; Kenyon v. Weissberg (1917) 240 Fed. 536; Niles-Bement-Pond Co. v. Iron Molders' Union (1917) 246 Fed. 863. Alabama. - Foster V. Winchester (1890) 92 Ala. 497, 9 So. 83; Waller v. Jones (1894) 107 Ala. 331, 18 So. 277. California.-Bradley Co. v. Bradley (1913) 165 Cal. 237, 131 Pac. 750; Western U. Teleg. Co. v. Commercial Pacific Cable Co. (1918) — Cal. —, 171 Pac. 317; Miller v. Enterprise Canal & Land Co. (1904) 142 Cal. 208, 100 Am. St. Rep. 115, 75 Pac. 770.

Colorado.-Kirby v. Union P. R. Co. (1911) 51 Colo. 509, 119 Pac. 1042, Ann. Cas. 1913B, 461.

Connecticut.-Yale Gas Stove Co. v. Wilcox (1894) 64 Conn. 101, 25 L.R.A. 90, 42 Am. St. Rep. 159, 29 Atl. 303; Lyman v. Lyman (1916) 90 Conn. 406, L.R.A.1916E, 643, 97 Atl. 312.

Illinois.-John Anisfield Co. v. Edward B. Grossman & Co. (1901) 98 Ill. App. 180; Pitzele v. Cohn (1905) 217 Ill. 30, 75 N. E. 392, affirming (1904) 117 Ill. App. 342; BARNES v. BARNES (reported herewith) ante, 4.

Iowa.-Carr v. Craig (1908) 138 Iowa, 526, 116 N. W. 720.

Maine.-Mason v. Carrothers (1909) 105 Me. 409, 74 Atl. 1030.

Maryland.-Equitable Gaslight Co. v. Baltimore Coal Tar & Mfg. Co. (1886) 65 Md. 84, 3 Atl. 108.

Beatty

Missouri. Williams V. (1909) 139 Mo. App. 175, 122 S. W. 323.

New Jersey.-Shotwell v. Stickle (1914) 83 N. J. Eq. 193, 90 Atl. 246.

Chio.-Kinner v. Lake Shore & M. S. R. Co. (1902) 23 Ohio C. C. 300; Kinner v. Lake Shore & M. S. R. Co. (1904) 69 Ohio St. 344, 69 N. E. 614. Electric Pennsylvania. - Scranton

Light & Heat Co. v. Scranton Illuminating Heat & P. Co. (1886) 3 Pa. Co. Ct. 635; Englander v. Apfelbaum (1914) 56 Pa. Super. Ct. 152; Lewis's Appeal (1870) 67 Pa. 166; Hays's Estate (1893) 159 Pa. 381, 28 Atl. 158; Patterson v. Building Trades Council (1902) 11 Pa. Dist. R. 508.

Texas.-Lone Star Salt Co. v. Blount

(1908) 49 Tex. Civ. App. 138, 107 S. W. 1163; Sanders v. Cauley (1908) 52 Tex. Civ. App. 261, 113 S. W. 560.

Vermont.-Langdon v. Templeton (1894) 66 Vt. 173, 28 Atl. 866.

Ihrig

West Virginia.-Ihrig V. (1916) 78 W. Va. 360, 88 S. E. 1010. Wisconsin.-Huntzicker v. Crocker (1908) 135 Wis. 38, 115 N. W. 340, 15 Ann. Cas. 444.

England. Dering V. Winchelsea (1787) 1 Cox, Ch. Cas. 318, 29 Eng. Reprint, 1184, 2 Bos. & P. 270, 126 Eng. Reprint, 1276, 21 Eng. Rul. Cas. 617.

Thus, in Bateman V. Fargason (1880) 2 Flipp, 660, 4 Fed. 32, it was said: "The maxim is invoked that ‘he who comes into equity must do so with clean hands.' The principle indicated by the maxim only applies to the conduct of the party in respect to the particular transaction under consideration, for the court will not go outside of the case for the purpose of examining the conduct of the plaintiff in other matters, or questioning his general character for fair dealing. Bisph. Eq. 61. It does not mean a general depravity; it must have an immediate and necessary relation to the equity sued for; it must be depravity in a legal as well as moral sense."

In Kinner v. Lake Shore & M. S. R. Co. (1902) 23 Ohio C. C. 300, it was said: "The maxim of coming into court with clean hands is confined by courts of equity to misconduct in regard to or connected with the matter in litigation, so that it affects the equitable relations subsisting between the two parties and arising out of the transaction. It does not extend to any misconduct, however gross it is, unconnected with the matter in litigation, and with which the opposite party has no concern."

In Hays's Estate (1893) 159 Pa. 381, 28 Atl. 158, it was said: "The maxim ['He who comes into a court of equity must come with clean hands'], considered as a general rule controlling the administration of equitable relief in particular controversies, is confined to misconduct in regard to, or, at all events, connected with, the matter in litigation, so that it has in some measure affected the equitable relations

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