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from expending public money in pros- seeking to create in itself and coplainecuting a criminal action was to ham- tiff an illegal monopoly of the busiper the prosecution of such action, ness of manufacturing cigarettes. The and not in reality to protect the public court held that this alleged motive of fund, were held to be in court with the plaintiffs had no connection with "unclean hands," and the relief the matter involved in the suit, which prayed was denied.

was to restrain the infringement of Likewise in Cook v. Chapman (1878) the patents, and that the case, there30 N. J. Eq. 118, relief was denied in fore, was not one for the application a suit brought by a member of a firm of the principle of the maxim, in the to restrain the further prosecution by absence of any fraudulent or improper his firm of certain attachment suits conduct by the plaintiff toward the against a corporation, instituted for defendant. the collection of claims of the firm, In Camors-McConnell Co. v. McConand to secure the appointment of a re- nell (1904) 140 Fed. 412, affirmed in ceiver to "manage, control, collect, (1906) 72 C. C. A. 681, 140 Fed. 987, and compromise" the claims. The

wherein one selling his business to suit was brought at the instigation of

another agreed that he would not enthe corporation, and in accordance

gage in business in competition with with an understanding between the

the purchaser so as to affect injuriousplaintiff and the corporation, and the

ly the value of the property and busiobject of the suit was in reality to de

ness sold, it was held that the alleged feat utterly the just claims of the firm.

purpose of the purchaser in acquiring However, the improper motive must

the said business, to create an illegal be established (Curtin Benson

monopoly, could not be pleaded as a (1911) 222 U. S. 78, 56 L. ed. 102, 32

defense to a suit to enjoin the seller Sup. Ct. Rep.-31), and where it does

from entering into competition with not appear that a suit was prosecuted

the purchaser in his business, to show in furtherance of the improper motive that the latter was not in court with charged, the relief prayed by the party “clean hands," for the reason that the charged with the inequitable conduct illegal conduct of the purchaser was should not be denied on the ground not connected with the contract which that because thereof he is in court was the subject-matter of the suit. with “unclean hands." Upchurch v. Anderson (1898) Tenn. 52 S. W.

h. Illegal conduct. 917.

Misconduct, in order to justify a Furthermore, if the improper mo- court of equity in refusing its aid to tive pleaded by a party to a suit has no a litigant in the application of the immediate connection with the sub- principle of this maxim, need not be ject-matter of the litigation, it should criminal in its nature, or such as not bar a recovery by his opponent. would be sufficient to sustain a legal Thus,'a charge that the purpose of the action. Weegham v. Killefer (1914) complainant was the creation of an 215 Fed. 171, affirmed in (1914) L.R.A. unlawful monopoly has been held not 1915A, 820, 131 C. C. A. 558, 215 Fed. to be a bar to the relief prayed, be- 289; Harton v. Little (1914) 188 Ala. cause having no immediate relation to 640, 65 So. 951; Anders v. Sandlin the subject-matter of the litigation. (1914) 191 Ala. 158, 67 So. 684. Bonsack Mach. Co. v. Smith (1895) 70 Thus, in Harton v. Little (1914) 188 Fed. 386, wherein the defendant con- Ala. 640, 65 So. 951, supra, the court tended that one of the plaintiffs, in said: “For a court of equity to deny purchasing a number of patents for relief for misconduct on the part of machinery for the manufacture of complainant, it is not essential that cigarettes, licensing another concern, the fraud or deceit be such as would its coplaintiff, exclusively to use the be a defense to an action at law, or machinery, and instituting what it al- even that it should be such as would leged was frivolous and vexatious require a court of equity to cancel the litigation against its competitors, was contract, as appears from quotation


herein quoted from $ 400, 1 Pom. Eq. adjusting its accounts, or in dividing Jur. If he has nevertheless been guil- its spoils. It will take the parties to ty of unscrupulous practices, or over- such a scheme as it finds them, and reaching, or has concealed important as it finds them will leave them withfacts, even though not actually fraud- out assistance in their fraudulent enulent, or been guilty of trickery, or terprise. These principles are not taking undue advantage of his posi- new. Indeed, they were old in 1725, tion, or other unconscientious conduct, when John Everet filed a bill against then a court of equity may deny relief, his partner for an accounting of dealalthough such may not constitute a ings with good success at Hounslow defense at law."

Heath, but when it appeared that In Anders V. Sandlin (1914) 191 the trade was taking the purses of Ala. 158, 67 So. 684, it was held that those who traveled over the heath, "the maxim, 'He who comes into equity the court would not endure the bill.' must come with clean hands,' is not 9 Law Quarterly Rev. 105, 197." confined alone to those cases where In Avery v. Central Bank (1909) fraud or illegality prevents a suitor 221 Mo. 71, 119 S. W. 1106, it was said: from obtaining relief in equity, but, "It is a cardinal maxim of equity that as said by Mr. Pomeroy: 'Any really he who seeks equity must come into unconscientious conduct connected court with clean hands. It is against with the controversy, to which he is public policy to adjust equities bea party, will repel him from the forum tween wrongdoers, or to permit courts, whose very foundation is good con- maintained by the common purse, to science.' 1 Pom. Eq. Jur. $ 404."

fritter away time (mortgaged to jusBut where conduct, in addition to tice) indemnifying those suffering loss being unconscionable, is also illegal, by reason of violation of law." a court of equity will, of course, re- In Kahn v. Walton (1888) 46 Ohio fuse its aid to any person or persons St. 195, 20 N. E. 203, it was said: “It guilty thereof. Primeau v. Granfield is a fundamental rule of equity that (1911) 114 C. C. A. 549, 193 Fed. 911, parties wanting its aid must come writ of certiorari denied (1912) 225 with clean hands. Courts of equity U. S. 708, 56 L. ed. 1267, 32 Sup. Ct. require honesty, good faith, and legalRep. 839; Chicago v. Union Stock- ity in transactions between men; and Yards & Transit Co. (1896) 164 Ill. if a party would pursue his remedy 236, 35 L.R.A. 281, 45 N. E. 430; Avery therein, his demand must not rest on v. Central Bank (1909) 221 Mo. 71, a violation of law for its foundation, 119 S. W. 1106; Weiss v. Herlihy or arise from his own illegal acts, or (1897) 23 App. Div. 608, 49 N. Y. conduct contra bonos mores." Supp. 86; Kahn v. Walton (1888) 46 However, illegality which has no Ohio St. 207, 20 N. E. 203; Interna- connection with or is only indirectly tional Land Co. v. Marshall (1908) 22 connected with the subject-matter of Okla. 693, 19 L.R.A.(N.S.) 1056, 98 the litigation will not bar one seeking Pac. 957.

the aid of a court of equity from the Thus, in Primeau Granfield relief prayed. Yale Gas Stove Co. v. (1911) 114 C. C. A. 549, 193 Fed. 911, Wilcox (1894) 64 Conn. 101, 25 L.R.A. writ of certiorari denied (1912) 225 90, 42 Am. St. Rep. 159, 29 Atl. 303; U. S. 708, 56 L. ed. 1267, 32 Sup. Ct. Mason v. Carrothers (1909) 105 Me. Rep. 839, after stating the maxim, the 409, 74 Atl. 1030; Weiss v. Herlihy court said: "Interwoven with these (1897) 23 App. Div. 608, 49 N. Y. Supp. elementary equitable principles are 86. those considerations of public policy Thus, in the case first cited the court which require the fostering of com- said: “The maxim that he who comes mon honesty. A court of justice does into equity must come with clean not sit for the promotion of fraud or hands' has no such application as the illegality. It is no part of its function defendant seeks to give it. It refers to aid any party to a fraudulent or solely to wilful misconduct in regard illegal scheme in carrying it out, in to the matter in litigation. Snell's Eq.



35. Though an obligation be indirect- v. Duerson (1897) 13 Ky. L. Rep. 169; ly connected with an illegal transac- Wertheimer-Swartz Shoe Co. v. Wyble tion, it will not thereby be barred from (1914) 261 Mo. 675, 170 S. W. 1128; enforcement, if the plaintiff does not Re First Trust & Sav. Bank (1912) 45 require the aid of the illegal trans- Mont. 89, 122 Pac. 561, Ann. Cas. action to make out his case.

1913C, 1327; Helsley v. Fultz (1882) In Mason v. Carrothers (1909) 105 76 Va. 671; Medford v. Levy (1888) Me. 409, 74 Atl. 1030, it was held that 31 W. Va. 649, 2 L.R.A. 368, 13 Am. St. “the maxim of clean hands applies Rep. 887, 8 S. E. 302. solely to some wilful misconduct with Thus, in Wertheimer-Swartz Shoe reference to the matter in litigation, Co. v. Wyble (1914) 261 Mo. 675, 170 and not to some other illegal trans- S. W. 1128, the court said: · "In fact, action, although it may be indirectly were they (the defendants) in the connected with the subject-matter of penitentiary for crimes growing out of the suit."

the same fraud, the circumstances The principle of this maxim applies would not justify this court in abating as well to illegal conduct which is its watchfulness to make sure that any malum prohibitum as it does to such litigant seeking the aid of its equity as is malum in se. Carey v. Smith powers to extinguish their interests (1852) 11 Ga. 547, wherein the court came with clean hands and a worthy said: "It is undoubtedly a principle cause." of equity jurisprudence that he who In Helsey v. Fultz (1882) 76 Va. 671, seeks equity must come into court with it was said: “It is a well-established clean hands. The general rule is, that rule of courts of equity not to assist where parties are concerned in illegal one wrongdoer against another,-a agreements or other illegal transac- doctrine expressed in the maxim that tions, whether they are mala prohibita he who comes into equity must come or mala in se, courts of equity, follow- with clean hands." ing the rule of law, as to participators And the principle applies notwithin a common crime, will not interpose standing the parties to the suit are in to grant any relief; acting upon the pari delicto. Peacock v. Terry (1850) well-known maxim, 'In pari delicto 9 Ga. 147; Cornellier v. Haverhill Shoe potior est conditio defendentis et pos- Mfrs. Asso. (1915) 221 Mass. 554, sidentis.' In all such cases the rule L.R.A.1916C, 218, 109 N. E. 643; Kahn is to leave the parties where it finds v. Walton (1889) 46 Ohio St. 207, 20 them, giving no relief and no counte- N. E. 203. nance to claims of that character."

Thus, in Kahn v. Walton (Ohio) suIt has been held that the principle of pra, after referring to this maxim, the "unclean hands” can apply to the case court, in quoting from the opinion of of a complainant in a court of equity, Lord Mansfield in Holman v. Johnson alleged to be tainted with illegality, (1775) Cowp. pt. 1, p. 341, 98 Eng. Reonly when, in order for him to recover print, 1120, in part said: "If the in the suit, it is necessary for him to

plaintiff and defendant were to change disclose the preceding illegal trans

sides, and the defendant was to bring action. Cohn v. Pitzele (1904) 117 Ill.

his action against the plaintiff, the App. 342, affirmed in (1905) 217 Ill.

latter would then have the advantage 30, 75 N. E. 392. See also infra, III. h,

of it; for when both are equally in and VIII.

fault, potior est conditio defendentis." 1. Parties in delicto.

Where the parties to a suit tainted The rule that a court of equity will with illegality are equally in the not lend its aid to a party to a suit wrong, a court of equity, under the who is guilty of inequitable conduct principle of this maxim, will refuse its directly connected with the matter in aid to any of them, but will leave them controversy applies notwithstanding in the position which their inequitable the opposite party to the suit also is conduct has created for them. Sinsin delicto, and his wrong is connected heimer v. United Garment Workers with the matter of the suit. Semonin (1894) 77 Hun, 215, 28 N. Y. Supp.


321, wherein the court said: “It is a less guilty thereof on the ground familiar principle in equity that the that he is in court with "unclean plaintiff must come into court with hands.” Conlon v. Hosier (1917) 165 clean hands. Under the circumstances N. Y. Supp. 774; Pinckston v. Brown disclosed by the papers in this case, if (1857) 56 N. C. (3 Jones, Eq.) 494. the defendants were guilty of any vio- Compare Ilo Oil Co. v. Indiana Natural lation of law, the plaintiffs were cer- Gas & Oil Co. (1910) 174 Ind. 635, 30 tainly equally implicated, and under L.R.A.(N.S.) 1057, 92 N. E. 1. See this condition of affairs it is difficult also the folowing main subdivisions to see how they would have a right to of this note for the application of the the intervention of a court of equity. rule in reference to parties in pari In dealing with questions of this na- delicto. ture the court should be studious to see that the rights of all parties are

3. Conduct not directly connected with

matter in litigation. protected; and that the forms of law should not be permitted to be used on

1. Generally. behalf of one party against another,

The fact that a party to a suit comes when the party seeking the interven

into a court of equity with “unclean tion of the court has been endeavoring hands,” it has been held, should not to secure his ends by means similar

necessarily deprive him of his right to those which he seeks to enjoin on

to the relief prayed if he is otherwise the part of his antagonist.” In that

entitled thereto. Dallavo v. Dallavo case the appeal was from a decree

(1915) 189 Mich. 350, 155 N. W. 538. granting an injunction. The parties

Therefore the decisions are in acto the suit were an association of man

cord in holding that it is not every wilufacturers and an organization of

ful and reprehensible act that will preworkmen, each of which was created

clude a litigant in a court of equity for its own protection against the oth

from obtaining the relief prayed, but er. The act complained of was the is

such conduct, under the principle insuance of circulars by the workmen's volved in this maxim, must bear an association to tradesmen in other

immediate relation to the subject-matcities, complaining of alleged unjust

ter of the suit, and in some measure treatment by the manufacturers' asso

affect the equitable relations subsistciation, and requesting such tradesmen

ing between the parties to the litigato discontinue their dealings with the

tion and arising out of the transaction. members of that organization. This

United States.--Bateman v. Fargaact was but one of the instruments

son (1880) 2 Flipp. 660, 4 Fed. 32; used by the workmen in their contest

Bonsack Mach. Co. v. Smith (1895) 70 with the manufacturers. The court

Fed. 386; Shaver v. Heller & M, Co, found that there were no acts of vio

(1901) 65 L.R.A. 878, 48 C. C. A. 48, lence or threats or intimidation com

108 Fed. 834, affirming (1900) 102 Fed. mitted by the workmen's association,

882; Trice v. Comstock (1903) 61 and that its conduct in issuing the cir

L.R.A. 176, 57 C. C. A. 646, 121 Fed. cular was lawful. It was also held

620; Knapp v. S. Jarvis Adams Co. that the manufacturers' organization

(1905) 70 C. C. A. 536, 135 Fed. 1010; was not in court with “clean hands,"

Bossert v. S. Jarvis Adams Co. (1905) inasmuch as the course pursued by it

70 C. C. A. 23, 135 Fed. 1015; Camorgagainst the workmen's association was

McConnell Co. v. McConnell (1905) precisely the same as that of which it

140 Fed. 412, affirmed in (1905) 72 complained.

C. C. A. 681, 140 Fed. 987; CunningBut it has been held that, in the ap

ham v. Pettigrew (1909) 94 C. C. A. plication of the principle of this max- 457, 169 Fed. 344; Primeau v. Granim, if the parties to a suit in equity field (1911) 114 C. CA, 549, 193 Fed. are not in pari delicto, though they 911, writ of certiorari denied in (1912) are both in delicto with reference to 225 U. S. 708, 56 L. ed. 1267, 32 Sup. Ct. the subject-matter of the suit, the Rep. 839; Talbot v. Independent Order court will not refuse its aid to the of Owls (1915) 136 C. C. A. 268, 220

4 A.L.R.-5.



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-, 171

Fed. 660; Bentley v. Tibbals (1915), (1908) 49 Tex. Civ. App. 138, 107 S. 138 C. C. A. 489, 223 Fed. 252; Ameri- W. 1163; Sanders v. Cauley (1908) 52 can Sugar Ref. Co. v. McFarland Tex. Civ. App. 261, 113 S. W. 560. (1916) 229 Fed. 284 (judgment af- Vermont.--Langdon Templeton firmed in 241 U. S. 79, 60 L. ed. 899); (1894) 66 Vt. 173, 28 Atl. 866. Kenyon v. Weissberg (1917) 240 Fed. West Virginia.-Ihrig v. Ihrig 536; Niles-Bement-Pond Co. v. Iron (1916) 78 W. Va. 360, 88 S. E. 1010. Molders' Union (1917) 246 Fed. 863. Wisconsin.-Huntzicker v. Crocker

Alabama. Foster v. Winchester (1908) 135 Wis. 38, 115 N. W. 340, 15 (1890) 92 Ala. 497, 9 So. 83; Waller v. Ann. Cas. 444. Jones (1894) 107 Ala. 331, 18 So. 277. England.--Dering v. Winchelsea

California.-Bradley Co. v. Bradley (1787) 1 Cox, Ch. Cas. 318, 29 Eng. (1913) 165 Cal. 237, 131 Pac. 750; Reprint, 1184, 2 Bos. & P. 270, 126 Eng. Western U. Teleg. Co. v. Commercial

Reprint, 1276, 21 Eng. Rul. Cas. 617. Pacific Cable Co. (1918)

Thus, in Bateman v. Fargason Pac. 317; Miller v. Enterprise Canal & (1880) 2 Flipp, 660, 4 Fed. 32, it was Land Co. (1904) 142 Cal. 208, 100 Am.

said: “The maxim is invoked that 'he St. Rep. 115, 75 Pac. 770.

who comes into equity must do so with Colorado.-Kirby v. Union P. R. Co.

clean hands.' The principle indicated (1911) 51 Colo. 509, 119 Pac. 1042,

by the maxim only applies to the conAnn. Cas. 1913B, 461.

duct of the party in respect to the Connecticut.-Yale Gas Stove Co. v.

particular transaction under considWilcox (1894) 64 Conn. 101, 25 L.R.A.

eration, for the court will not go out90, 42 Am. St. Rep. 159, 29 Atl. 303;

side of the case for the purpose of Lyman v. Lyman (1916) 90 Conn. 406,

examining the conduct of the plaintiff L.R.A.1916E, 643, 97 Atl. 312.

in other matters, or questioning his Illinois.-John Anisfield Co. v. Ed

general character for fair dealing. ward B. Grossman & Co. (1901) 98 Ill.

Bisph. Eq. 61. It does not mean a genApp. 180; Pitzele v. Cohn (1905) 217

eral depravity; it must have an imIll. 30, 75 N. E. 392, affirming (1904)

mediate and necessary relation to the 117 Ill. App. 342; BARNES V. BARNES (reported herewith) ante, 4.

equity sued for; it must be depravity Iowa.-Carr v. Craig (1908) 138

in a legal as well as moral sense.”

In Kinner v. Lake Shore & M. S. R. Iowa, 526, 116 N. W. 720. Maine.--Mason v. Carrothers (1909)

Co. (1902) 23 Ohio C. C. 300, it was

aid: 105 Me. 409, 74 Atl. 1030.

"The maxim of coming into Maryland.-Equitable Gaslight Co.

court with clean hands is confined by V. Baltimore Coal Tar & Mfg. Co.

courts of equity to misconduct in re

gard to or connected with the matter (1886) 65 Md. 84, 3 Atl. 108. Missouri. Williams


in litigation, so that it affects the equi(1909) 139 Mo. App. 175, 122 S. W.

table relations subsisting between the 323.

two parties and arising out of the New Jersey.-Shotwell v. Stickle

transaction. It does not extend to any (1914) 83 N. J. Eq. 193, 90 Atl. 246.

misconduct, however gross it is, unOhio.-Kinner v. Lake Shore & M.

connected with the matter in litigaS. R. Co. (1902) 23 Ohio C. C. 300;

tion, and with which the opposite parKinner v. Lake Shore & M. S. R. Co.

ty has no concern." (1904) 69 Ohio St. 344, 69 N. E. 614.

In Hays's Estate (1893) 159 Pa. 381, Pennsylvania. — Scranton Electric

28 Atl. 158, it was said: “The maxim Light & Heat Co. v. Scranton Illumi

['He who comes into a court of equity nating Heat & P. Co. (1886) 3 Pa. Co.

must come with clean hands'], conCt. 635; Englander v. Apfelbaum

sidered as a general rule controlling (1914) 56 Pa. Super. Ct. 152; Lewis's the administration of equitable relief Appeal (1870) 67 Pa. 166; Hays's Es- in particular controversies, is confined tate (1893) 159 Pa. 381, 28 Atl. 158; to misconduct in regard to, or, at all Patterson v. Building Trades Council events, connected with, the matter in (1902) 11 Pa. Dist. R. 508.

litigation, so that it has in some measTexas.—Lone Star Salt Co. v. Blount ure affected the equitable relations

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