I am unable to agree with a conclusion which results in the total of two wrongs producing one right. I am unable to agree that by a joint and willful violation of law a preference can be created in favor of one of the wrongdoers *Page 537 and against innocent persons who are interested in the subject matter. In my opinion equity should not aid one or two parties who are in pari delicto at the expense of innocent persons. Neither do I think it safe to adopt a rule which constitutes an open invitation to bankers and municipal treasurers to violate a law intentionally and deliberately in order to create a greater security through the fiction of a trust ex maleficio. The innocent depositors who place their faith in a bank without violating any law should certainly receive as much consideration in court as another depositor who has violated a law in making the deposit.
The entire theory of a trust ex maleficio is a fiction of law devised for the purpose of doing justice and for the protection of an innocent party as against a guilty one. In this case we can exclude all questions of sovereignty, which do not apply to a village, and, doing so, we have here a trust ex maleficio raised as a fiction for the protection of one of the guilty parties as against numerous innocent ones — i. e., the bonafide depositors of the bank. A fiction is also utilized in all of those cases which hold that under circumstances such as these the title to the money does not pass to the bank. It is perfectly clear that if the village treasurer had deposited ten one-hundred-dollar bills and an hour later the cashier had paid one of those bills out to a customer of the bank, it would be impossible for the village to take that particular one-hundred-dollar bill away from that particular customer by an action of replevin even if it could be specifically identified. The money once deposited and mingled with the funds of the bank most clearly gives the bank a title to it, and nothing short of a fiction can sustain any other view. It is necessary for us to indulge in fictions for the protection of the innocent against the guilty, but it is my opinion that they should not be indulged in for the protection of the guilty against the innocent. *Page 538
This is a proceeding in equity. It has long been the law that he who asks for equitable relief must come into court with clean hands. In the case at bar the claimant founds its case upon a violation of law actively participated in by its own officer. Without this violation of law in this case there could be no trust ex maleficio. The complainant does not come into court with clean hands and is not entitled to a preferred claim to the financial detriment of the ordinary depositors of the bank.
Mr. JUSTICE HERRICK and Mr. JUSTICE FARTHING concur in this dissenting opinion.