an accurate knowledge of what the human form is and what it could possibly be.

It is perhaps the weakest part of our politics that it is material and not moral equality which is so generally sought. Intellectual equality, it is true, is never in the demagogue's mind. In his heart he knows that he is, mentally, immeasurably inferior to many of those he criticizes and condemns. Indeed, his whole following and popularity are built upon the sound assumption that this inferiority complex which he finds in himself will be present in those he assumes to lead and teach. Conceding that he does, in a sense, demand equality under the law, he proposes to make that law—a task for which he is, of all others, least fitted.

Here is the explanation of taxes imposed for punishment rather than for revenue. Here, indeed, is the reason for the devastating failure in Russia. By no possibility could a government make everybody rich. But almost by a turn of the hand it could make everybody poor. It is at least theoretically possible to make everybody contented, because that is a philosophical quality of every human mind not distorted by disease. But what demagogue wants to make anybody contented? What demagogue will speak to his following of inalienable responsibilities when he can fuddle their heads with talk about "rights" which he himself is prepared to alienate any day of the week?

If the communists in Russia have done nothing else they have succeeded in uniting every force of religion against their doctrine. Strategically they are right because equality under the Divine law is an essential part of the Christian religion.

CLEAN HANDS IN EQUITY

A very interesting question was recently quite fully discussed in the Harvard Law Review on the meaning of clean hands in equity. In other words, when may a defendant in equity, without any defense upon merits, appeal to the doctrine of clean hands1 to put his opponent out of court? The subject is one of considerable interest and the decisions are by no means all on one side. The courts of the land have long held and seem to be quite thoroughly agreed that the alleged misconduct of a plaintiff must have reference to the subject matter in controversy.2 The demand for predicability in judicial decisions requires that the Chancellor's discretion be controlled by some more clear and definite principle. Situations may be classified as: (1) cases where the plaintiff is engaged in a continuing course of fraudulent or illegal conduct, more or less closely connected with the subject-matter of the suit, and (2) cases where the plaintiff's misconduct is at an end and he seeks restoration of the status quo or other affirmative relief.

In the first type, if the desired relief would further the wrongdoing, no matter against whom the latter is directed, it obviously ought to be denied. One need not here be concerned over the defendant's unearned victory. Justice is not served by substituting an injury to a third party for an injury to the plaintiff. Whether the judicial aid invoked will assist in effectuating a wrong may often be a question of degree, analogous to the difficult problem at law of when a contract becomes unenforceable by reason of its relation to a crime.3 The decisions on this point seem very satisfactory. Thus protection is refused for a trade-name which is in itself misleading. The court will not lend its aid to a continuing fraud on the public. On the other hand, protection will not be denied to an honest label because others used by the complainant are objectionable.5 Nor will participation in a restraint of trade

1 "He who comes into equity must come with clean hands," see 1 Pomeroy, Equity Jurisprudence, 3 ed., § 399. Sometimes phrased, “He that hath committed iniquity shall not have equity." see Francis, Maxims of Equity, 5. For the sources cf maxims in our law, see "The Maxims of Equity," 34 Harv. L. Rev. 800, 827836. 2 Lewis' Appeal, 67 Pa. St. 153 (1870); Kinner v. Lake Shore Ry. Co., 69 Ohio St. 339, 69 N. E. 614 (1903). See. 1 Pomeroy, op. cit., § 399; Bispham, Principles of Equity, 9 ed., § 42.

3 "It may be that as in the case of attempts, the line of proximity will vary somewhat according to the gravity of the evil apprehended, and in different courts with regard to the same or similar matters." Per Holmes, C. J., in Graves v. Johnson, 179 Mass. 53, 58, 60 N. E., 383, 383, (1901).

4 Worden v. California Fig Syrup Co., 187 U. S. 516 (1903).

5 Shaver v. Heller & Merz Co., 108 Fed. 821 (8th Circ., 1901).

debar a plaintiff from preventing infringement of his trade-mark rights, or from enjoining trespass by strikers.7

In the second type of case, where the plaintiff seeks property wrongfully withheld by the defendant, or such other relief as would prima facie be proper as between the parties, equity cannot in justice say, "the right on which your claim for relief is based involves past injustice to a third party, therefore we refuse to protect you." A sweeping rule to this effect would indeed be to some extent a deterrent to illegal projects. But only when such a deterrent is most clearly demanded by public welfare-as perhaps in the classic case of grave and heinous crime, where one conspirator demands from another his share of the bootys-can equity justifiably leave parties exposed to indiscriminate plunder. Any general rule debarring a plaintiff because of past illegal transactions with reference to the subject-matter of the suit encourages the unscrupulous to take advantage of persons whose rights, they believe, will not bear rigid scrutiny. It also means that in any equitable proceeding endless collateral and irrelevant issues must be tried out at the instance of a defendant without merits of his own.10 It leads, in short, to the conclusion that the Chancellor, since he cannot, ex hypothesi, do full justice, not having the injured outsider before the court, must therefore refuse to do justice as between the parties. That this is actually the result of many cases seems due chiefly to the use of the maxim as if it were a selfexplanatory rule of decision. From other cases,12 however, it is clear that the maxim, despite its misleading wording,13 is not aimed at any such personal disqualification of the plaintiff. If the maxim were phrased "he who comes into equity must come with clean demands," it would more plainly disclose its rationale.

Courts have generally agreed that a party to an illegal executory contract may rescind and recover for benefits conferred.14 To this rule the law of quasi-contracts makes an exception in the case of mala in se, thus in effect recognizing the paramont policy General Electric Co. v. Re-New Lamp Co., 128 Fed. 154 (D. Mass., 1904). Coeur D'Alene, etc. Co. v. Miners' Union, 51 Fed. 260 (D. Idaho, 1892). Everet v. Williams, See 9 Law Quart. Rev. 197.

6

7

8

9

See John H. Wigmore, "A Summary of Quasi-Contracts," 25 Am. L. Rev.

695, 712 (k).

10 See Langley v. Devlin, 95 Wash. 171, 188, 163 Pac. 395, 401 (1917). 11 Herman v. Jeuchner, 5 Q. B. D. 561 (1885); Dent v. Ferguson, 132 U. S. 50 (1889).

12 See infra, notes 18, 22, 24, 26, 28.

13 That the literal import of the maxim is no safe guide is apparent from the fact that immorality and degraded character have long been held to make a plaintiff's hands unclean. Dering v. Earl of Winchelsea, 1 Cox Eq. 318 (1787); Wright v. Wright, 51 N. J. Eq., 475, 26 Atl. 166 (1893).

14 McCall v. Whaley, 52 Tex. Civ. App. 646, 115 S. W. 658 (1909); Deaton v. Lawton, 40 Wash. 486, 82 Pac. 879 (1905).

19

in favor of every possible deterrent to very serious crime.15 It has been assumed that the law as to fraudulent conveyances which in some jurisdictions permits a repentent grantor to recover back the property is only for the benefit of creditors.16 Yet courts of high authority have held that when the grantor shows any independent ground for equitable relief, as for instance that a deed absolute was in fact a mortgage, he does not lose his rights as against the grantee because the transaction also was a fraud on creditors.17-18. Where an express trust for an illegal purpose has iailed, a resulting trust arises for the benefit of the settler's heirs or next of kin.1 But as to whether, after the accomplishment or failure of the illegal purpose, the Settlor himself may insist upon a reconveyance from the trustee, there is disagreement.20 In a case involving an advance of money to create a fictitious appearance of financial trustworthiness, it has been held in England that he cannot.21 This decision is not easily reconcilable with certain prior English cases which had refused to find in past misconduct a bar to equitable relief.22 The same considerations must govern the exercise of jurisdiction in the frequent case where a partner in a firm which was organized for, or engaged in, illegal business asks an accounting. Although the prevailing rule would deny relief as to all property wrongfully acquired,23 yet courts, including the United States Supreme Court, have seized upon slight—and it is believed inconsequential-distinctions by which to escape the supposed necessity of applying the maxim. Thus where the property has been converted into a new form,24 or where after its acquisition there has been an account stated,25 or where it has

15 See Keener, Quasi-Contracts, 259.

16

Carll v. Emery, 148 Mass. 32, 18 N. E. 574 (1888); Symes v. Hughes, L. R. 9 Eq. 475 (1870).

17 Livingston v. Ives, 35 Minn. 55, 27 N. W. 74 (1885); Halloran v. Halloran, 137 Ill. 100, 27 N. E. 82 (1890); Harvey v. Varney, 98 Mass. 118 (1867).

18 Nichols v. Patten, 18 Me. 231 (1841); Clemens v. Clemens, 28 Wis. 637 (871).

19 See 3 Pomeroy, Equity Jurisprudence, 3 ed., § 1032. See Scott, Cases on Trusts, 366, n. 1.

20

Cf. Pawson v. Brown, L. R. 13 Ch. Div. 202 (1878); Stevens v. Ely, 1 Dev. Eq. (N. C.) 493 (1830); Lemmond v. Peoples, 6 Ired. Eq. (N. C.) 137 (1849). See 1 Perry, Trusts, 5 ed. § 21.

21 In re Great Berlin Steamboat Co., 26 Ch. D. 616 (1884).

22 Cf. Faikney v. Reynous, 4 Burr. 2069 (1767). See English cases cited in note 26 infra.

23 See Lindley, Partnership, 7 ed., 118-125. For a review of authorities contra, see McDonald v. Lund, 13 Wash. 412, 43 Pac. 348 (1896).

24 Brooks v. Martin, 2 Wall. (U. S.) 70 (1863). But see McMullen v. Hoffman, 174 U. S. 639, 666 (1899).

25 McDonald v. Lund, supra, note 23. See Leonard v. Poole, 114 N. Y. 371, 379, 21 N. E. 707, 709 (1889).

been transferred to a third party in trust for the plaintiff,26 the latter's hands are considered sufficiently "cleansed."

The majority of recent cases show a wholesome tendency to grant equitable relief, where proper as between the parties, very much as a matter of course,27 and without inquisition into the merits and demerits of the transactions through which the plaintiff derives his rights.28 Thus, where title to public land had been granted to the defendant under misinterpretation of a statute, a state court imposed upon him a constructive trust in favor of the plaintiff whose claim, though superior to that of the defendant, was secured from their common grantor by fraud.29 At about the same time, however, a federal court denied protection to an infant who had repudiated her professional contract as against the co-contractor who was using the defunct contract to hinder the infant plaintiff from securing employment elsewhere.30 It will scarcely be urged that the policy against infants repudiating their agreements is stronger than against grantees securing property rights by fraud. One is forced to the conclusion that in the case. of the infant, the judge laid hold of the maxim as a means to punish the plaintiff a function which equity did not assume even in the days when the Chancellor, as an ecclesiastic, might have been pardoned for more strenuous insistence upon his tribunal as a "court of conscience."31

26 A line of English cases establish the general principle that where a contract as between the parties A and B is illegal and unenforceable, yet if A in pursuance of it transfers property to a third person in trust for B, B may recover the property. Tenant v. Elliott, 1 Bos. & P. 3 (1797); Famer v. Russell, 1 Bos. & P. 296 (1798); Worthington v. Curtis, L. R. 1 Ch. Div. 419 (1875). See also Sharp v. Taylor, 2 Phill. Ch. 801 (1848), criticized, however, in Sykes v. Beadon, L. R. 11 Ch. Div. 170, (1879). It is generally held that as agent must account for money received in his principal's illegal business. Baldwin v. Potter, 46 Vt. 402 (1874); Planters' Bank v. Union Bank, 16 Wall. (U. S.) 483 (1872.) Murray v. Vanderbilt, 39 Barb. (N. Y.) 140 (1863); Wilson v. Owen, 30 Mich. 474 (1874). For a discussion and criticism of these cases, see 3 Williston, Contracts, 88 1785-1786.

27 See F. Pollock, "The Expansion of The Common Law," 4 Col. L. Rev. 12, 27.

28 American Ass'n, Ltd. v. Innis, 109 Ky. 595, 60 S. W. 388 (1901); Cochran Timber Co. v. Fisher, 190 Mich. 478, 157 N. W. 282 (1916); Warfield v. Adams, 215 Mass. 506, 102 N. E. 706 (1913); Ely v. King-Richardson Co., 265 Ill. 148, 106 N. E. 619 (1914); Langley v. Devlin, supra, n. 11; Mo. Fidelity & Casualty Co. v. Art Metal Const. Co., 242 Fed. 630 (8th Circ. 1917).

29 Everett v. Wallin, 184 N. W. 958 (Minn. 1921). For the facts of this case see Recent Cases, infra, p. 774.

30 Carmen v. Fox Film Corp., 269 Fed. 928 (2nd Circ., 1920). See 30 Yale L. J. 522.

31 In Ward v. Lant, Prec. Ch. 182, 183 (1701) there is a dictum that where a person has executed a voluntary deed "to screen himself from taxes" he may nevertheless have relief concerning it in equity.

"This court is not a Court of Conscience," per Buckley, J., in re Telescriptor Syndicate, (1903) 2 Ch. 174, 195.