The representative. [volume] (St. Paul, Minn.) 1893-1901, 1893-07-05

IrduuulouU contract UQ0y mace WIFI
him. AS they do not divide the
spoils, the suit is brought to compel
them and the railroad defendant
by specific performance to issue to
him his prOportionate share of it's
capital stock and also grant him pro-
portiOnate parts of profits and gains
and also interests in undivided prop
erty yet remaining.
This is sad picture and a strange
demand to present to court of eqi-
ty. To what extent the alleged con-
federateS are blamewOrthy or culpa-
BILE, if at all, could be made to appear
only after answer and full proofs.
The court must. however, dispose of
the case as now presented.
A few days ago demurrer inter
posed was Overruled substantially ON
the ground that the theory of the bill
was to require of the court enforce
ment against the railroad defendant
not only of division of the alleged
corrupt spoils, part of which had
passed to the co-defendants, but of
the remaining aSSettS undivided; al
so partition of the property, ETC.,
as just stated. Thus the powers of
a court of equity were invoked to en-
force the execution of fraud on
itself as court and on others. Surely
no principle of equity, morals, or law
can cOuntenance such demand, and
no court worthy Of it's trust would
lend it's aid to further a scheme so
abhOrrent to all recognized rules of
right and justice.
1t is charged however, and for the
purposes of this case may be admit
ted, that Mr.. Kennedy, agent of the
Amsterdam committee, was advised
by plaintiff during the PROGRESS of
the scheme that plaintiff was secret
ly betraying his trust. If so the
gravity of plaintiffs Offense was not
lessened by thus adding a new con-
federate to his fraudulent plans. eS-
pecially one whose relations were en-
inently fiduciary toward his principal
the Amsterdam committee. the court
and others interested.
Plaintiffs canSe of action is based
on inherent IT, bitude, and hence the
fundamental maxim applies: er turpe
cdesd, etc. Therefore another maxim
has potential force, viz: Poteor est
cOnditiO detendentis. In plain English,
the courts of equity will not recog-
niZe as valid or enforce any agree
ment grounded in turpitude, nor will
they undertake to unravel tangled
web of fraud for the purpose of ena-
bling one of the fraudulent parties
after such judicial acknowledgements
to consummate his fraudulent de-
signs. The party complaining must
come into court with clean hands.
In this case he has not by the aver
mentS OF his bill nor by his sworn tes-
timony either clean hands within the
rules of equity, nor any cause
of action which can be up
held without a fragrant violation of
the most positive and clearly defined
rules governing such cases.
The plea is sustained and the bill
dismissed with costs.
NOTE A.-Counsel on either side
have given the largest aid to the
court by oral arguments, elaborate
briefs, and full citations of authori-
ties. However interesting and ex-
haustive review might be if time
permitted, the task is unnecessary.
1t must suffice to state that the sup
posed conflict of authority when the
cases are analysed disappears so far
at least as the rules of equity decisive
of the questions now to be deter
mined are involved.
NOTE Bit may be conceded that
in private trusts where constructive
frauds have been cOnSummated and
the wrOnged parties do not com plain,
courts have refused to listen to the
volunteers or as between parties liti-
CANT examine into the means where
by the one or the other has become
charged with a new trust toward his
associates. This rule rests largely
on the reason that the court is called
upon not to ascertain the sources
wherein the fraud was derived in the
absence of the benefciaries COM
planning but merely to decide wheth-
er a new trust was created which has
been or is about to be violated. =
It may be that there is discernible
in adjudged cases a distinction be-
cause by law prohibited) and Malo IN
which funds or property have come
into the hands of one confederate for
the benefit of all, acts which have in
trinsic turpitude further than is inn
piled in the violation of a mere
statutory prohibition.
The strongest case cited for plain
tiff, Brooks v. Martin 2 Wall, con-
tains that element and seems to be
shaded with the thought that the
parties ought to be protected by the
statute, not only failed to complain
but most of them ratified expressly
all that had been done.
That case was peculiar in many of
it's features, and like the English
cases cited in the opinion is clearly
distinguished from the transaction
now under review.
In these cases there was no act of
moral turpitude like the betrayal of
trust for selfish greed which called
for Investigation, but merely the re-
latiOnship of the litigant parties in
dependent of prior dealings between
them and others.
In Brooks v. Martin the court ex-
aminedintO the assignment obtained
by Brooks from his partner Martin
through actual fraud and ruled that
he could not shield himself from the
consequences of that fraud by show
ing a prior violation of a prohibited
act in which they were participants,
even if such a violation consum-
mated, furnished the trust fund as
signed.
To hold otherwise would have per-
mitted person to escape the con-
q l.