Statement of the Case. as the amount due him under what is known as the longevity acts of Congress. Prior to November 28, 1861, he served in the navy as an enlisted man for six years and forty days; and he served as gunner in the regular navy from November 28, 1861, until April 14, 1868, a period of six years and 145 days, when he resigned. He was reappointed gunner December 27, 1869, since which date he served continuously in that capacity. Under the longevity acts of 1882 and 1883, 22 Stat. 284, 287, c. 391; 473, c. 97, he has been allowed credit, for prior services only upon his second warrant as gunner, and he has been credited upon that warrant with twelve years and 185 days, the entire period of his service, as enlisted man and gunner prior to his re-entering the service on the 27th day of December, 1869. If he had been allowed on his first warrant as gunner, for his previous service of six years and forty days as an enlisted man, he would have received, as the result of such credit, the sum of $1393.40, the amount of the judgment below, exclusive of the thirty-three and one-third per centum increase under General Order, No. 75, of May 26, 1866. Between the date of his resignation on April 14, 1868, and his reappointment as gunner, December 27, 1869, the plaintiff held no position in the navy. The longevity act of 1883, (the addition to the act of 1882 being shown by italics,) under which the present claim is made, provides that "all officers of the navy shall be credited with the actual time they may have served as officers or enlisted men in the regular or volunteer army or navy, or both, and shall receive all the benefits of such actual service in all respects in the same manner as if all said service had been continuous and in the regular navy in the lowest grade having graduated pay held by such officer since last entering the service: Provided, That nothing in this clause shall be so construed as to authorize any change in the dates of commission or in the relative rank of such officers: Provided, further, That nothing herein contained shall be so construed as to give any additional pay to any such officer during the time of his Opinion of the Court. service in the volunteer army or navy." 22 Stat. 284, 287, c. 391; 473, c. 97. Mr. Assistant Attorney General Howard and Mr. F. P. Dewees for appellants. Mr. Robert B. Lines and Mr. John Paul Jones for appellee. MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court. There is no claim that the plaintiff did not receive, on his first warrant as gunner, that is, for the whole period of his first continuous service in that position, all the compensation to which he was entitled as gunner, under the law as it was during that period. And it is found, in effect, that he has received credit, on his second warrant as gunner, for the actual time of his entire service prior to December 27, 1869, both as enlisted man and gunner, counting such service as if it had been continuous and in the regular navy in the lowest grade, having graduated pay held by him after he re-entered the service, that is, in the grade of gunner. In our judgment, he is not entitled to more under existing legislation. The acts of 1882 and 1883 do not require or authorize a restatement of the pay accounts of an officer of the navy who served in the regular or volunteer army or navy, so as to give him credit in the grade held by him, prior to their passage, for the time he served in the army or navy before reaching that grade. Congress only intended to give him credit in the grade held by him, after those acts took effect, for all prior services, whether as an enlisted man or officer, counting such services, however separated by distinct periods of time, as if they had been continuous and in the regular navy in the lowest grade having graduated pay held by him since last entering the service; and that credit has been given to the plaintiff. In this view, the conclusion reached by the Court of Claims was erroneous. The judgment is reversed with directions to dismiss the petition. Statement of the Case. HENNESSY v. WOOLWORTH. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA. No. 74. Argued November 13, 14, 1888. - Decided November 26, 1888. Specific performance is not of absolute right, but rests entirely in judicial discretion, to be exercised according to settled principles of equity, but always with reference to the facts of the particular case. A decree for specific performance should never be granted unless the terms of the agreement sought to be enforced are clearly proved, nor when it is left in doubt whether the party against whom relief is asked in fact made such an agreement as is alleged. The assent of the husband of a married woman to the terms of an agreement made by an agent for the sale and conveyance of lands of the wife situated in Minnesota is not sufficient to bind the wife. In this case, it not being clearly established that the wife assented to the agreement for the sale of her real estate of which a specific performance is sought to be enforced, though the assent of the husband is shown, the decree is refused. THE Court stated the case as follows: The appellees, S. B. Woolworth, and Clara Woolworth, his wife, the plaintiffs below, claiming to have been for more than ten years prior to the 13th of June, 1883, in the constant, actual and lawful possession of lots 4 and 9, block 20, Rober: and Randall's addition to St. Paul, Minnesota, and averring that the appellant, the defendant below, wrongfully asserted an interest therein adverse to them, brought this suit in one of the courts of the State, for the purpose of obtaining a decree adjudging that the defendant has no right, title, estate, lien, or interest in those lots, and for such other relief as was proper. The suit was based upon a statute of Minnesota providing that "an action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an estate or interest therein, or lien upon the same, adverse to him, for the purpose of determining such adverse claim, estate, lien, or interest; and any person having or claiming title to vacant or unoccupied real estate may bring Statement of the Case. an action against any person claiming an estate or interest therein adverse to him, for the purpose of determining such adverse claim, and the rights of the parties respectively." General Statutes of Minnesota 1878, c. 75, § 2, p. 814. The suit was subsequently removed into the Circuit Court of the United States. The original complaint having been ordered to stand as a complaint in equity in the Circuit Court, the defendant filed an answer controverting all of its material allegations, and, also, by leave filed a cross-bill, seeking a decree for the specific execution of a written agreement, which was put upon record, and is alleged to have been made between him and the plaintiffs on the 23d of December, 1881, for the sale and conveyance by them to him of the lots in question. That agreement is as follows: "Received at St. Paul, Minn., this 23d day of December, 1881, of David J. Hennessey, of Dubuque, Iowa, the sum of fifty dollars as earnest and in part payment of the price of lots four (4) and nine (9), in block twenty (20), of Robert and Randall's addition to St. Paul, Minn., which, as the authorized agent of Clara Woolworth and S. B. Woolworth, her husband, of the last-named city and State, I have bargained and sold to the said Hennessey for ten thousand dollars to be paid, and which the said Hennessey stipulates to pay, as follows, to wit; twenty-five hundred dollars, less aforesaid earnest money, on delivery to the said Hennessey of good warranty deed with full covenants, which shall convey to the said Hennessey from the said Woolworths good, clear, and perfect title, except as to the notes and mortgages hereinafter mentioned, to said property and to all improvements and appurtenances thereunto belonging, and after the said Hennessey shall have been furnished by the said Woolworths with a complete, official, and certified abstract of title to the said property, which shall show title in them thereto as aforesaid, and nineteen hundred dollars on or before one year, and nineteen hundred dollars on or before two years, and nineteen hundred dollars on or before three years from the delivery as aforesaid and the giving to Statement of the Case. said Hennessey of possession of said premises and the emoluments, with interest at the rate of seven per centum per annum, payable annually, except in case of a note taken up before due, and the three last-mentioned sums are to be secured by mortgage back on the said premises, and the said Hennessey is to assume, from and after the last-mentioned date and from and after that date only, a certain note and mortgage for eighteen hundred dollars, which plaintiffs made August 10th, 1880, and running from Seth B. Woolworth and Clara Woolworth to Edwin W. Rice, which said mortgage is recorded in the office of the register of deeds of said Ramsay County, in Book 59 of Mortgages, on page 218, and which the said Hennessey agrees, under and in accordance with the said stipulations herein contained, and each of them, to pay when due. "It is, moreover, agreed that if there are any clouds or defects in the title to the said property they and each of them shall be removed and cured with becoming diligence by the said Woolworths, and if not removable or curable the aforesaid fifty dollars is to be refunded and this contract to be null and void, at the option of the said Hennessey, and to be void, also, at the option of the said Hennessey, in the event of the neglect or failure on the part of the said Woolworths to remove or cure the clouds or defects which may be on said title. "P. T. KAVANAUGH, "Agent of Clara Woolworth and S. B. Woolworth. "DAVID J. HENNESSEY. "Witnesses: Replications to the answer and cross-bill were filed by the plaintiffs, and a decree rendered dismissing the cross-bill and giving them the relief asked by the original bill or complaint. By that decree it was, among other things, adjudged that the instrument of Dec. 23, 1881, was not authorized by the plaintiffs, or either of them, and was void; that the defendant has no right or interest in said lots in virtue of that writing. The |