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ance of contract. It is a familiar doctrine that specific performance will be refused where the complainant has obtained the agreement by sharp practice, over-reaching, unfair concealment of facts, by taking undue advantage of his position or by other unconscientious means, or where the contract is one sided, unconscionable, or even where the specific performance would be harsh and unduly oppressive upon the defendant, or would in any manner work injustice. It refuses specific performance in such cases, because the complainant does not come into court with clean hands. A court of equity will apply the principle of this maxim where the complainant's claim is affected by his own fraud and leave him to his remedy, if any he has, at law.

Where a contract has been entered into to accomplish a fraudulent purpose, a court of equity will neither compel its execution nor decree its cancellation, nor, if executed, will it set aside or restore the property or other interests fraudulently obtained or transferred. In other words, it refuses relief to either of the fraudulent participants. This rule is also applied to contracts which are illegal, prohibited by law, or malum in se as contrary to public policy and good morals. There is some limitation upon the doctrine as applied to such contracts where the parties are not in pari delicto and relief may be given upon the ground of public policy.

The earliest reported case in which the principle of this maxim was applied, appears to be in Mildemay vs. Mildemay, 1 Vernon, 53, decided in 1682. The case is this: The wife being divorced, a mensa et thoro, exhibited a bill in chancery against her husband to reach certain rentals which had become due upon a previous fifty pound per annum settlement by him. The defendant answered that she was a lewd woman, had eloped from her husband, he offering to take her back again. The chancellor refused any relief cept that the defendant should stand in place of the terts, admit the

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rents, "and then she might proceed at law to recover the rents, if she could."

Another interesting case if that of Redmond vs. Redmond, 1 Vernon, where in a treaty of marriage it was agreed that a certain bond owing by the intended bridegroom should be taken up and cancelled. This was done by the substitution of a new bond, which was given by the brother of the intended husband, the proposed bride executing a security to the obligators in the new bond for their satisfaction. The father, who knew nothing about the new bond or the indemnity given by the daughter in regard to the same, was drawn into giving his daughter a greater portion, having refused to consent to the marriage until the husband "should be made a clear man." The marriage took place, the husband died, and the new bond being presented as a claim against the husband's estate, the wife, as administratrix, filed a bill to be relieved. It appears that the husband supposed that the original bond upon which he had been obligated, had been paid, and knew nothing of the new bond, nor of the security indemnity given therefor by the wife to the brother. The Lord Chancellor held that if this bond shall be suffered to lie on Charles's (the husband's) estate. it might swallow up the assets and defraud his creditors, and in concluding his opinion says:

"You admit the husband might have been relieved on a bill brought by him and his wife; that which was once a fraud will be always so, and the accident of a woman surviving the husband will not better the case."

"Decreed that the bond be delivered up and a perpetual injunction granted."

I find it is not uncommon for solicitors who have not become thoroughly imbued with the spirit and meaning of this maxim, to seek to have it applied in matters not growing out of the transaction complained of, or necessarily connected with it. I remember one case before me where there was a bill for specific performance of a contract for the sale of a

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house. The young solicitor for the defendant attempted to set up and prove that after the complainant had taken possession of the house under the contract, she had turned it into an assignation house, and he therefore claimed that the complainant was not entitled to relief, because she did not come into equity with clean hands. It is weil settled that the court will not go out of the case at bar and examine the conduct of the complainant as to other matters, or question his general character, and that the misconduct as to which relief will be denied, must be in regard to the very matter in litigation.

V.

HE WHO SEEKS EQUITY MUST DO EQUITY.

All the authors give it in this form, except Francis, who has it: "He that will have equity done to him, must do it to the same person."

The meaning of this maxim is, that the court will give to the complainant the relief to which he is entitled on the condition only, that he has given, or is ready to give the defendant, such corresponding rights as he may be entitled to in respect to the subject matter of the suit. Whatever may be the nature of the relief sought by the bill, the equitable rights of the defendant, growing out of or intimately connected with the subject matter of the action, will be pro

Nothing will, prevent the application of this rule, except the intervention of the principle of the maxim that he that doeth iniquity shall not have equity, as illustrated in the Illinois case, where the party had improved the land wrongfully and fraudulently withheld by him from the owner.

An illustration of this maxim is found where a borrower of money on usurious interest comes into a court of equity to set aside the transaction; or asking the cancellation of the usurious contract. He can only have relief upon the terms of returning the money borrowed with lawful interest, as the

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equity of the defendant who loaned the money, to have the money with lawful interest, is as great as that of the borrower to be relieved from his unjust obligation to pay the usurious rate.

Another striking illustration of the maxim is where the husband, under the old English law, came into equity for the purpose of getting in his wife's equitable property. The court would not give him its assistance, except upon the terms of his making a reasonable settlement upon his wife. This was commonly called "a wife's equity," and the rule of this maxim was first applied in that class of cases. This equity of the wife, termed "the wife's equity," was the first innovation made upon the law of England which treated the wife as one having no rights of property which her hus band was bound to respect. It was the first innovation upon the English law which vested in the husband the absolute ownership of all the personal property possessed by the wife, or to which she might become entitled during coverture, even her own earnings, and also the absolute right to receive for his own use all the rents and profits of her real estate.

It was the first great step in the emancipation of woman from the pitiable and selfish bondage in which she was held by the laws and customs of England. From the beginning the court of equity has been the consistent friend and advocate of the rights of women, so far as their rights of property were concerned. Its persistent efforts to have her equitable rights in her own property enlarged, protected and conserved, is one of the brightest chapters in the history of equity jurisprudence.

This maxim stands out in full force in all cases of equitable estoppel. At common law a man might stand by and see another person, by mistake, build a house upon his land, and afterwards bring ejectment for, and recover, both house and land, but equity interposed and said, "Such conduct is

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against conscience.

You shall only be allowed to recover possession of land and house by making compensation for the building which you knowingly permitted the party to put thereon under a mistake, thinking he was building upon his own land."

In the specific performance of contracts, the application of this maxim compels the party seeking relief to comply with all the conditions and agreements upon his part. It also comes into play in cases where equity would compel an election between two inconsistent gifts or donations, and in cases where one creditor has a lien or security upon two funds, and another has a subsequent lien on only one of them, the holder of the security on the two funds will be compelled to shape his own remedy so as to preserve, if possible, the equity of the one whose lien extends to but one fund.

The principle of the maxim underlies, to a large extent, the whole theory and jurisdiction of equity in respect to the marshalling of assets. In 1 Chancery Cases, 77, St. John v. Wolford, there was what at this day would be called an extreme application of the rule of this maxim, considering the imperfect report which we have of the case, but I am not prepared to say that the rule was then improperly applied. The complainant had obtained of defendant four thousand pounds, secured by mortgage. After the execution of the mortgage, he obtained two thousand pounds more (but not put into the mortgage). He paid fifteen hundred pounds on the four thousand pounds, and filed his bill to redeem from the balance of the four thousand pound mortgage. Ruled, that if the complainant would redeem, he must reimburse the defendant for all, that is, for the balance of the four thousand and also the two thousand; for, "he that will have equity to help him when the law cannot, shall do equity to the same party against whom he seeks to be released in equity."

The principle of this maxim has also been applied to cases where a party applies for relief against a note or secur