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in a court of equity. Com. v. Filiatreau (1914) 161 Ky. 434, 170 S. W. 1182, wherein the court said: "The maxim-'He who comes into equity must come with clean hands'-imposes itself alike upon him who defends and upon him who prosecutes a suit in equity. . . . The maxim is broad enough to demand that he who prays from the chancellor protection as well as he who seeks affirmative aid must openly and frankly, without reservation or evasion, yield to the chancellor that full measure of confidence and truth which is prerequisite to the assertion and exercise of chancery powers, and the lack of which must necessarily repel him from a forum whose very foundation is mutual confidence and good faith."

The maxim need not be pleaded, for when the evidence discloses the unconscionable character of a transaction, the court, whether the maxim is pleaded or not, will of its own motion apply the principle involved therein. Memphis Keeley Institute v. Leslie E. Keeley Co. (1907) 16 L.R.A. (N.S.) 921, 88 C. C. A. 112, 155 Fed. 964; Primeau v. Granfield (1912) 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; Bentley v. Tibbals (1915) 138 C. C. A. 489, 223 Fed. 252; Harton v. Little (1914) 188 Ala. 640, 65 So. 954; Creamer v. Bivert (1908) 214 Mo. 485, 113 S. W. 1118; Houtz v. Hellman (1910) 228 Mo. 655, 128 S. W. 1001; Gilmore v. Thomas (1913) 252 Mo. 156, 158 S. W. 577; Wertheimer-Swartz Shoe Co. v. Wyble (1914) 261 Mo. 687, 170 S. W. 1128.

Thus, in Memphis Keeley Institute v. Leslie E. Keeley Co. (Fed.) supra, after stating that the case was a clear one within the rule that a court of equity will not aid one who comes before it with unclean hands, the court said: "It should be noted, however, though it is not relied on either by the lower court or by appellee's counsel here, that the fact in regard to appellee's fraudulent misrepresentations, as we have adjudged it, was not set up by appellants in their answer as a defense to the suit. This pre

sents the question whether, in the absence of its having been so presented, any effect can be given to it. It seems to be well settled that such a matter need not be pleaded as a defense to a suit. If it appears from the record, it will be given effect notwithstanding it has not been pleaded. The theory upon which this is done is that in reality it is not a matter of defense. It is given effect to, not on defendant's account, but because of the public."

In Gilmore v. Thomas (1913) 252 Mo. 147, 158 S. W. 577, it was said: "The doctrine that he who comes into a court of equity must come with clean hands may be invoked by this court on its own motion."

The object to be attained in the application of the principle of this maxim has been said to be the punishment of the person guilty of the inequitable conduct, rather than the exercise of any concern for his opponent in the litigation. Harton v. Little (1914) 188 Ala. 640, 65 So. 951, wherein the court, in referring to this maxim, said: "It is also made clear by the authorities that the principle is not invoked out of any regard or concern for the adverse party, but more in reproof to the plaintiff, and by way of punishment for the wrong and condemnation thereof by the court."

The requirements of the principle involved in this maxim are not satisfied by a fulfilment of the literal language of its demand. Com. v. Filiatreau (Ky.) supra.

The meaning of the maxim is that a party to a suit in equity, in order to obtain the relief sought, must not have been guilty of reprehensible conduct directly connected with the matter in controversy, and that any litigant who is at fault in this respect will not receive the aid of a court of equity in the protection of any rights which he may claim relating to the matter of the suit.

United States.-Michigan Pipe Co. v. Fremont Ditch, Pipe Line & Reservoir Co. (1901) 49 C. C. A. 324, 111 Fed. 284; Danciger v. Stone (1909) 187 Fed. 853; Union Cent. L. Ins. Co. v. Drake (1914) 131 C. C. A. 82, 214

Fed. 542; Weegham v. Killefer (1914) 215 Fed. 171, affirmed in (1914) L.R.A. 1915A, 820, 131 C. C. A. 558, 215 Fed. 289; Bentley v. Tibbals (1915) 138 C. C. A. 489, 223 Fed. 247; Kenyon v. Weissberg (1917) 240 Fed. 536.

Georgia.-Employing Printers Club v. Dr. Blosser Co. (1905) 122 Ga. 515, 69 L.R.A. 90, 106 Am. St. Rep. 137, 50 S. E. 353, 2 Ann. Cas. 694.

Kentucky. Semonin V. Duerson (1891) 13 Ky. L. Rep. 171; Pineville Land & Lumber Co. v. Hollingsworth (1899) 21 Ky. L. Rep. 902, 53 S. W. 279; Bennett v. Stuart (1914) 161 Ky. 279, 170 S. W. 642.

Maine.-Conners v. Conners Bros. Co. (1913) 110 Me. 434, 86 Atl. 843. Pennsylvania.-Scranton Electric Light & H. Co. v. Scranton Illuminating Heat & Power Co. (1886) 3 Pa. Co. Ct. 635; Englander v. Apfelbaum (1913) 56 Pa. Super. Ct. 152.

Washington.-LANGLEY V. DEVLIN (reported herewith) ante, 32.

Thus, in Bentley v. Tibbals (1915) 138 C. C. A. 489, 223 Fed. 247, the court said: "It is a venerable maxim of equity that one who comes into equity must come with clean hands. A court which seeks to enforce on the part of the defendant uprightness, fairness, and conscientiousness also insists that, if relief is to be granted, it must be to a plaintiff whose conduct is not inconsistent with the standards he asks to have applied to his adversary. In other words, the plaintiff's own conduct must not have been characterized by a want of good faith or a violation of the principles of equity and righteous dealing."

In Kenyon v. Weissberg (1917) 240 Fed. 536, it was said: “A court of equity acts only when and as conscience commands, and if the conduct of the plaintiff be offensive to the dictates of natural justice, then whatever may be the rights he possessed, and whatever use he may make of them in a court of law, he will be held remediless in a court of equity. Weegham v. Killefer (1914; D. C.) 215 Fed. 168. The often-heard maxims, 'He who goes into a court of equity must go with clean hands,' and 'He who has not done equity cannot have equity,' have

given rise to the rule of law that a court of equity will leave to remedy at law, and will refuse to interpose to grant relief to one who, in the matter or transaction concerning which he seeks aid, has been wanting in good faith, honesty, or righteous dealing."

In Semonin v. Duerson (1891) 13 Ky. L. Rep. 169, it was said: "He who comes into equity must come with clean hands;' or, as it is sometimes expressed, 'He that hath committed iniquity shall not have equity.' The maxim assumes that the suitor asking the aid of a court of equity has himself been guilty of conduct in violation of the fundamental conceptions of equity jurisprudence, and therefore refuses him all recognition and relief with reference to the subject-matter or transaction in question. It says that whenever a party who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of the court will be shut against him; the court will refuse to interfere on his behalf, to acknowledge his right, or to award him any remedy. Pom. Eq. Jur. § 397."

In Conners v. Conners Bros. Co. (1913) 110 Me. 428, 86 Atl. 843, the court, in quoting from 1 Pomeroy's Equity Jurisprudence, § 397, said: "It is an elementary principle of equity jurisprudence that 'whenever a party who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience or good faith, or other equitable principle in his prior conduct, then the doors of the court will be shut against him in limine; the court will refuse to interfere on his behalf, to acknowledge his right or to award him any remedy.' 1 Pom. Eq. Jur. § 397. This fundamental conception of equity has been crystallized in the familiar maxim, 'He who comes into a court of equity must come with clean hands.'"

II. Misconduct justifying application of maxim generally.

a. General rule.

A court of equity, in applying the

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New Jersey. Pendleton v. Gondolf (1915) 85 N. J. Eq. 308, 96 Atl. 50; Thomson Mach. Co. v. Brown (1918) 104 Atl. 129.

New York.-Public Service Commission v. Brooklyn Heights R. Co. (1918) 105 Misc. 254, P.U.R.1919B, 258, 172 N. Y. Supp. 790.

Oklahoma.-International Land Co. v. Marshall (1908) 22 Okla. 693, 19 L.R.A. (N.S.) 1056, 98 Pac. 957.

Pennsylvania. Reynolds v. Boland (1902) 202 Pa. 648, 52 Atl. 19; Dempster v. Baxmyer (1911) 231 Pa. 37, 79 Atl. 805.

Tennessee.-C. F. Simmons Medicine Co. v. Mansfield Drug Co. (1893) 93 Tenn. 94, 23 S. W. 165; Caldwell v. Virginia F. & M. Ins. Co. (1911) 124 Tenn. 593, 139 S. W. 703.

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

West Virginia. Hale v. Hale (1907) 62 W. Va. 609, 14 L.R.A. (N.S.) 221, 59 S. E. 1056.

Thus, in Weegham v. Killefer (1914) 215 Fed. 171, affirmed in (1914) L.R.A. 1915A, 820, 131 C. C. A. 558, 215 Fed. 289, the court, referring to the maxim, said: "Under this maxim, any wilful act in regard to the matter in litiga4 A.L.R.-4.

tion which would be condemned and pronounced wrongful by honest and fair-minded men will be sufficient to make the hands of the applicant unclean. Both courts and text-writers have repeatedly spoken upon this subject in no uncertain language. He who has acted in bad faith, resorted to trickery and deception, or been guilty of fraud, injustice, or unfairness, will appeal in vain to a court of conscience, even though in his wrongdoing he may have kept himself strictly 'within the law.''

In Brown v. Brown (1895) 66 Conn. 493, 34 Atl. 490, after a reference to the maxim, it was said: "Whenever a party who, as actor, seeks to set the judicial machinery in motion to obtain some relief, has himself violated conscience or good faith in his prior conduct with the matter of the controversy, then the door of the court will be shut against him; the court will refuse to interfere in his behalf, to acknowledge his right, or award him any remedy."

In C. F. Simmons Medicine Co. v. Mansfield Drug Co. (1893) 93 Tenn. 94, 23 S. W. 165, the court said: "The principle is general, and is one of the maxims of the court, that he whe comes into a court of equity, asking its interposition in his behalf, must come with clean hands; and if it appear from the case made by him, or by his adversary, that he has himself been guilty of unconscientious, inequitable, or immoral conduct, in and about the same matters whereof he complains of his adversary, or if his claim to relief grows out of, or depends upon, or is inseparably connected with, his own prior fraud, he will be repelled at the threshold of the court."

To deprive a suitor in a court of equity of its aid under the principle of the "clean hands" maxim, the wrong complained of must be a wrong in at legal as well as in a moral sense. 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.

It must be inequitable in a substantial part thereof, and not merely in

some

particular

items or facts. BARNES V. BARNES (reported herewith) ante, 4.

It has been held that the conduct complained of must be "morally reprehensible as to known facts" to justify the application of the principle of this maxim. Vulcan Detinning Co. v. American Can Co. (1906) 72 N. J. Eq. 387, 12 L.R.A. (N.S.) 102, 67 Atl. 339, wherein the court said: "Unclean hands,' within the meaning of the maxim of equity, is a figurative description of a class of suitors to whom a court of equity as a court of conscience will not even listen, because the conduct of such suitors is itself unconscionable; i. e., morally reprehensible as to known facts."

The fact that a litigant has no remedy at law will not deter a court of equity from the application of the maxim in refusing to him its aid, if, in connection with the subject-matter of the litigation, he has been guilty of any unconscionable conduct. Miller v. Kraus (1915) Cal. App. —, 155 Pac. 834, rehearing denied in (1916) Cal. 155 Pac. 838.

b. Illustrations.

In Jahn v. Champagne Lumber Co. (1907) 152 Fed. 669, a creditors' suit was brought against a corporation and certain of its stockholders by the assignee of a judgment. It was charged that the defendants had, during the pendency of the suit in which the aforesaid judgment against the corporation was entered, fraudulently caused the company to be disorganized for the purpose of defeating a recovery on any judgment that should be rendered in such suit adverse to them, and that, to accomplish the said purpose, the assets of the concern were fraudulently distributed among the stockholders. The bill prayed for a discovery as to the names, etc., of the remaining stockholders. The defendants demurred to the complaint and refused the discovery. The court held that, by demurring, the defendants had admitted the charge in the complaint, and by doing so and refusing the discovery they were in court with "unclean hands."

In Galliland v. Williams (1913) 181 Ala. 173, 61 So. 291, one who purchased a chattel which was subject to a recorded mortgage, but to whom the existence of the mortgage was unknown, was held, in the application of the principle of this maxim, not to be entitled to be subrogated to the rights of the mortgagee against the seller where he (the purchaser) had not satisfied the mortgage, but had been sued by the mortgagee for the conversion of the property, and had been found guilty thereof, and the sum recovered in the action represented the damages sustained because of the conversion, and not a satisfaction of the mortgage debt.

In HILL V. KAVANAUGH (reported herewith), ante, 1, it was held that a county treasurer who placed public money in his personal account to obtain for himself the interest was not in court with clean hands in seeking subrogation after the failure of the bank and an accounting by him.

In Pon v. Wittman (1905) 147 Cal. 291, 2 L.R.A. (N.S.) 683, 81 Pac. 894, the proprietor of a cigar stand and restaurant located in the passageway and only entrance to certain houses of prostitution, who claimed to have no interest in the business of such houses, was held not to be in court with "clean hands" in seeking to enjoin the police department from injuring his business by picketing police. officers in the said passageway, it having been found by the court that the success of his business was mainly dependent on the continued maintenance of the premises as houses of prostitution, and that the injunction was sought in reality for the protection of the business of the latter.

In Pittsburgh, C. C. & St. L. R. Co. v. Crothersville (1902) 159 Ind. 330, 64 N. E. 914, the suit was to enjoin the abatement of an alleged public nuisance. The court held that the plaintiff, in order to meet the requirements of the principle of this maxim, should have averred facts in its pleading showing that what was claimed by the defendants to be a public nuisance

was not so in fact. In not having done so, the plaintiff apparently was considered as seeking the aid of a court of equity to enjoin the abatement of an admitted public nuisance, and for that reason as being in court with "unclean hands;" for the court said: "It is a well-settled maxim that he who comes into equity must come with clean hands. Here appellant, under the facts found, seeks the aid of equity to enjoin the appellees from abating a public nuisance maintained by it, on the ground that they have no right to abate it. To grant such relief to appellant, who is maintaining the public nuisance, would be contrary to the well-settled principles of equity."

In Ilo Oil Co. v. Indiana Natural Gas & Oil Co. (1910) 174 Ind. 635, 30 L.R.A. (N.S.) 1057, 92 N. E. 1, the complainants sought to enjoin the defendant "from using devices for pumping and from employing any other artificial power or appliance for the purpose of having the effect of increasing the natural flow of natural gas and oil from wells" of the defendant. The court found that the complainants themselves had been guilty of similar practices though in a lesser degree. In that case it was said: "As appellant (complainant) was guilty, although in a lesser degree, of the same acts charged against appellee, the court will leave the parties where it finds them, for the reason that he who seeks equity must do equity, and must come into court with clean hands."

In Schilling v. Quinn (1912) 178 Ind. 443, 99 N. E. 740, the suit was to enjoin a levy and sale under an execution issued on a personal judgment rendered in an action to foreclose a lien. The defendants objected to the form of the judgment. The court, in denying the relief prayed, held that the defendants had an adequate remedy at law by appeal, and for not having paid the debt represented by the judgment, were not in court with "clean hands," having "failed to discharge their just obligation in the matter in controversy."

In Roberts v. Vonnegut (1914) 58 Ind. App. 142, 104 N. E. 321, the receiver of a corporation applied to a

court of equity to determine the priority of the claims of the company's creditors. Because of the pendency of a suit which had been instituted against the corporation for the appointment of a receiver, which the stockholders desired to avoid, certain of the latter had agreed among themselves to advance and pay into the treasury of the company a certain sum of money, to be used in the payment of the debts of the concern, on condition "that certain of the creditors of said company would extend the time of payment of their respective applications." These stockholders appeared on the receiver's petition as a class of creditors of the company. The court said: "This case presents some equitable features on both sides, and in a measure involves the balancing of equities;" and evidently considered the principle of this maxim applicable to the claim of the stockholders making the advances for priority over other creditors of the company, since, after holding that they were not entitled to such priority, it further said: "He who comes into equity must do equity, and come into the court with clean hands to demand equitable relief." In Gates v. Fauvre (1918) App. —, 119 N. E. 155, a suit to enforce contribution among joint debtors, it was held that the defendant, having interposed techincal objections to the complaint, was not in court with "clean hands" in so doing, and the relief desired by the complainant was granted.

Ind.

In Gulf Ref. Co. v. Hart (1912) 130 La. 51, 57 So. 581, it was held that the purchaser of real estate of married woman, the latter having sold the property to such purchaser without the concurrence of her husband, was, under the principle of "unclean hands," not entitled to the relief prayed for by him against other claimants of the property.

In Dilly v. Barnard (1836) 8 Gill & J. (Md.) 170, a party to the suit alleged that he had been prevented from properly preparing his case by the failure of an opponent to live up to an agreement entered into between them, whereby such opponent was to with

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