to be done by the party against whom the right exists will, if those acts are done, afford a defence to a suit in equity. (3) The person against whom it is sought to enforce an equitable right may have altered his position on the faith of conduct by the plaintiff from which the defendant is entitled to infer either that the plaintiff has abandoned his claim or that he will not enforce it. In the former case the plaintiff is estopped from denying that his conduct amounts to a release in the latter case, the plaintiff may be bound on the ground of contract. The word acquiescence is used in two senses. Sometimes it is used to denote conduct which is evidence of an intention by the party conducting himself to abandon an equitable right, sometimes to denote conduct from which another party would be justified in inferring such an intention; that is to say, it is sometimes employed as equivalent to conduct which amounts to a release and sometimes as equivalent to conduct which creates an estoppel or constitutes a promise, for which the acts of the defendant supply a consideration (d). (4) An equitable right may be barred by lapse of time. Lapse of time may determine a claim in four ways: (a) A Statute of Limitation may impose a bar, and, even where no Statute of Limitation directly applies, but there is a right at law corresponding to the equitable right which is being enforced, courts of equity, acting by analogy to the statute, treat the equitable right as barred at the time at which the corresponding legal right would have been barred. (b) Lapse of time may raise a presumption that the claim has been satisfied. (c) Where the event of a suit depends upon perishable testimony, lapse of time may raise a presumption that the testimony has perished. (d) Lapse of time may be evidence of conduct amounting either to waiver or acquiescence.

(d) Acquiescence in a breach of trust is treated as equivalent to ratification of the breach of trust by Lord ELDON in Walker v. Symonds (1818), 3 Sw. 1, p. 64; Lord CRANWORTH in Burrows v. Walls (1855), 5 De G. M. & G. 233, p. 251; and Lord WESTBURY in Farrant v. Blanchford (1863), 1 De G. J. S. 107, p. 120. On the other hand, it is treated as equivalent to conduct from which the other side is justified in inferring a release in Duke of Leeds v. Earl of Amherst (1864), 2 Ph. 117, p. 123, and De Bussche v. Alt (1878), 8 Ch. D. 286, p. 314.

CHAPTER XXVII.

THE NECESSITY OF CLEAN HANDS.

Illegal acts

THE illegality of the act on which the plaintiff founds his cause of action, or of some act which forms part of his cause classified. of action, may form a defence to his claim. And even where the defendant does not set up illegality as a defence, the court, if satisfied that the claim is based on an illegal act or contract, is bound to take notice of the illegality and to refuse relief to the plaintiff (a). An illegal act in the sense in which it is used above is not necessarily an act which is criminally punishable; and an illegal contract is not necessarily one which it constitutes an indictable offence to enter into. For instance, contracts in restraint of trade are illegal in the sense that the law declines to enforce them; but no action lies against any individual or individuals for entering into a contract merely because it is in restraint of trade (b). An act is illegal, first, if it is prohibited by common law or by statute; secondly, if it is contrary to public policy; and thirdly, if it is contrary to morality. In Egerton v. Earl Brownlow (c) two views were expressed of the meaning of public policy. One view was that public policy meant the policy of the law, and that an act or contract was contrary to public policy if it was against the principle of the established law. In order to avoid an act or contract as contrary to public policy, it must be shown, said PARKE, B. (d), that it is contrary to decided cases or the principle of decided cases and void by analogy to them. The other view was that the question what cases came within the rule

(a) Walcot v. Walker (1802), 7 Ves. 1; Whitmore v. Farley (1881), 29 W. R. 825; Gedge v. Royal Exchange Assurance Corporation, [1900] 2 Q. B. 214, p. 220.

(b) Mogul Steamship Co. v. Mc Gregor, Gow & Co., [1892] A. C. 25. (c) (1853), 4 H. L. Cas. 1.

(d) Ibid., p. 124. So Baron ALDERSON, p. 106.

Knowledge

how far material.

against public policy must be decided as they successively occur. Each case must be determined according to its own circumstances. The inquiry must, in each instance, where no former precedent has occurred, be whether the tendency of the act is to interfere with the public interest. No subject can lawfully do that which has a tendency to injure the public. It is this view which found favour with their lordships (e). Under this head come agreements in restraint of trade-marriage-brokage contracts-agreements to give a preference to one creditor under a composition-agreements to stifle a prosecution.

In the cases mentioned above it is immaterial whether

of illegality, the plaintiff knows that the act or contract is illegal on which his cause of action is based. If an act is prohibited by statute a plaintiff can acquire no rights by doing the act although he did not know that it was prohibited. If a covenant is in restraint of trade, a plaintiff cannot sue on that covenant, although when he entered into it he did not know that it was contrary to public policy. There are, however, cases where the knowledge of the plaintiff is material; and these are cases where the contract is one which can be performed in a perfectly legal manner, and where the illegality consists not in the actual performance of the contract but in an illegal destination of the subject-matter of the contract. If A. lends money to B., A. can primá facie recover his loan. But money lent for the purpose of enabling the borrower to do an illegal act, and this with the knowledge of the lender, cannot be made the foundation of an action. Thus, if A. lends money to B. to enable B. to pay or compound the differences upon illegal stock-jobbing transactions (f), or to enable B. to play at an illegal game (g), and A. is aware when the loan is made of the object to which the money is to be applied, and lends it for the purpose of accomplishing that object, he cannot recover it. Again, where A. sells land to B. the contract is

(e) P. 160 (Lyndhurst), 196 (Truro), 239 (St. Leonards). Lord HALSBURY apparently adheres to the view taken by PARKE, B. (Janson v. Driefontein Consolidated Mines, Times, August 6th, 1902).

(f) Cannan v. Bryce (1819), 3 B. & Ald. 179.

(g) Quarrier v. Colston (1842), 1 Ph. 147.

prima facie legal, and A. prima facie is entitled to recover the price; but where A. agreed to sell land to B., in order that, to A.'s knowledge, it might be sold by lottery, and A. conveyed the land to B., it was held that he could not bring an action to recover the purchase-money of the land, nor sue on a covenant given to secure the purchasemoney (h). . To render the contract illegal it need not be part of the bargain that the subject of the contract should be used unlawfully; it is enough if it is handed over for the purpose of being so used (i).

The rules which determine the rights of the plaintiff and defendant respectively, where the plaintiff's cause of action is illegal, may be stated as follows:

where cause

1. A plaintiff cannot acquire a cause of action either at Injunction law or in equity by an illegal act. This rule has been not granted applied in a number of cases in which a court of equity has de- of action illegal. clined to restrain an invasion of copyright in works which, in the opinion of the court, were libellous or immoral, or to restrain the infringement of a fraudulent trade-mark. Courts of equity, in so refusing, have always professed to follow the law. In Dr. Priestley's case at law (k), Dr. Priestley claimed compensation from the hundred for the loss of certain unpublished manuscripts destroyed in a riot; and EYRE, C.J., held that evidence was admissible in mitigation of damages, to show that Dr. Priestley was in the habit of publishing works injurious to the government of the State. On this astonishing authority Lord ELDON laid down that no action would lie at law for the invasion of property in a work which was in its nature calculated to do injury to the public, e.g., a libellous or irreligious or immoral publication. Accordingly he refused either an injunction or an account of profits where there had been a piracy of one of Peter Pindar's works (1), of a work which

(h) Fisher v. Bridges (1854), 3 E. & B. 642.

(i) Pearce v. Brooks (1866), L. R. 1 Ex. 213; Smith v. White (1866), L. R. 1 Eq. 626; In re South Wales Atlantic Steamship Co. (1876) 2 Ch. D. 763; Shaw v. Benson (1883), 11 Q. B. D. 563.

(k) 2 Meri. 437.

(1) Wolcot v. Walker (1802), 7 Ves. 1.

Fraudulent trade-marks.

impugned the doctrine of the immortality of the soul (m), and of Lord Byron's "Cain" (n). He also refused to restrain the unauthorised publication of Southey's "Wat Tyler" (0).

The cases on trade-marks begin at a later date, although they take their origin in an expression which fell from Lord ELDON (p). In Pidding v. How (q), the plaintiff represented in his labels and advertisements that tea which he sold as Howqua's mixture was made by Howqua in Canton, and was purchased from him and imported into England by the plaintiff in the original packages. In reality the teas from which the mixture was made were bought and the packages were made in England. SHADWELL, V.-C., declined to protect the plaintiff until he had established his title at law. In Perry v. Truefitt (r), the plaintiff sold a hair grease as Perry's Medicated Mexican Balm. The plaintiff represented on a printed show card that the composition was made from an original recipe of the learned Von Blumenbach, and that it was formed of vegetable balsamic productions of Mexico. Both these statements were false. LANGDALE, M.R., refused an injunction, but gave liberty to the plaintiff to bring an action, which was however never brought. In Flavel v. Harrison (s), the plaintiff described a stove which his predecessor in the business had invented as Flavel's Patent Kitchener, although no patent had ever been obtained. PAGE-WOOD, V.-C., refused an injunction but retained the bill, with liberty to bring an action, as he thought that a court of law might consider the plaintiff entitled to a remedy. These cases were confirmed by Lord WESTBURY, and subsequently by the House of Lords in Leather Cloth Co. v. American Leather Cloth Co. (t), although the decision of the House went upon another ground. In Ford v. Foster (u), the following distinction was taken : (m) Lawrence v. Smith (1822), Jac. 471. (n) Murray v. Benbow (1822), Jac. 474 n. (0) Southey v. Sherwood (1817), 2 Meri. 435. (p) Hogg v. Kirby (1803), 8 Ves. 215, p. 226. (q) (1837), 8 Sim. 477.

(r) (1842), 6 B. 66.

(*) (1853), 10 Ha. 467. Followed in Chearin v. Walker (1877),

5 Ch. D. 850. See Edelsten v. Vick (1853), 11 Ha. 78, which was, however, doubted by Lord KINGSDOWN, 11 H. L. Cas., p. 543.

(t) (1865), 11 H. L. Cas. 523.

(u) (1872), L. R. 7 Ch. 611.