Cited and followed in Saltmarsh v. Tuthill, 13 Ala. 410, holding bona fide holder, without notice, may recover on bill, though person from whom he received it, acquired it by fraud; Lilienthal v. Champion, 58 Ga. 162, holding purchaser of mortgaged property, paying full price with no deduction for mortgage, may set up usury in the mortgage; Trumbo v. Blizzard, 6 Gill & J. 23, and Doub v. Barnes, 1 Md. Ch. 142, holding usury may be set up by alienee of mortgagor; Rouskulp v. Kershner, 49 Md. 523, 524, holding plea denying usury must be accompanied by an answer supporting the denial; American Rubber Co. v. Wilson, 55 Mo. App. 659, holding debtor or his privy may take advantage of statute against usury; Cummins v. Wire, 6 N. J. Eq. 88, and Brolasky v. Miller, 8 N. J. Eq. 790, holding purchaser at sheriff's sale can take advantage of usury in mortgage of prior date; Brolasky v. Miller, 9 N. J. Eq. 810, is to same effect; Dix v. Van Wyck, 2 Hill, 525, holding usury cannot be set up by a stranger, but may be by a privy; Post v. Dart, 8 Paige, 641, holding that one claiming under mortgagor may set up the defense of usury; Cole v. Savage, 10 Paige, 592, holding heir of mortgagor, or a devisee or grantee of mortgaged premises, may set up defense of usury; Pearsall v. Kingsland, 3 Edw. Ch. 197, holding direct assignee in trust of mortgagor may impeach the mortgage for usury; Sands v. Church, 6 N. Y. 352, holding purchaser of an equity of redemption, at a foreclosure sale under a junior mortgage, cannot set up the defense of usury against prior mortgage; Maloney v. Eaheart, 81 Tex. 284, 16 S. W. 1031, holding junior mortgagee can set up usury against prior'mortgage. Cited without special application in Hope v. Smith, 10 Gratt. 224.

Miscellaneous.-Cited in 12 Pet. 146, 9 L. 1034, another hearing in same cause; see reference 4 Cr. C. C. 206, F. C. 8,434. Miscited in Ewell v. Daggs, 108 U. S. 153, 27 L. 685, 2 S. Ct. 415.

4 Pet. 232-286, 7 L. 842, VAN NESS v. CITY OF WASHINGTON and THE UNITED STATES.

United States.-Act of Congress authorizes a bill in equity in the nature of a petition of right to be brought against the United States, in case of land taken for improvements in the city of Washington, pp. 276, 277.

Cited and applied in United States v. Lee, 106 U. S. 239, 27 L. 188, 1 S. Ct. 276, holding, except where Congress has provided, the United States cannot be sued; Briggs v. Light-Boats, 11 Allen, 177, holding lien cannot be enforced against vessel built for the United States.

Merger.- Preliminary agreement as to transfer of land to United States held merged in an indenture to certain trustees, p. 284.

Cited and applied in Hazleton, etc., Co., v. Railway Co., 72 Fed. 323, where agreement was afterwards reduced to writing, very

strong evidence of fraud in changing it would be required to avoid the written contract.

Title.-A conveyance "for the use of the United States forever carries the fee, p. 285.

99

Cited and applied in Potomac S. Co. v. Upper P. S. Co., 109 U. 8. 680, 691, 694, 27 L. 1073, 1076, 1077, 3 S. Ct. 449, 457, 459, under facts similar to those in main case; Parish v. Gaddis, 34 La. Ann. 933, holding property donated to a parish for its use does not lose its character of public property by the fact of non-usage. Cited without special application in Bauman v. Ross, 167 U. S. 565, 42 L. 280, 17 S. Ct. 973.

Deeds. A solemn instrument should be construed according to the legal import of its terms, p. 285.

Cited in Waite v. O'Neil, 72 Fed. 357, construing a covenant in light of the uses contemplated.

Miscellaneous.-Miscited in Reed v. Beall, 42 Miss. 484; Nisewanger v. Wallace, 16 Ohio, 560. Cited in dissenting opinion, New Orleans, etc., R. R. Co. v. New Orleans, 26 La. Ann. 491, to point that sovereign can alone control public things. Cited to no particular point decided, in Markham v. Atlanta, 23 Ga. 406.

4 Pet. 287-290, 7 L. 861, LAGRANGE v. CHOUTEAU.

Appeal and error.-Petition for rehearing forms no part of the record, on appeal, p. 288.

Jurisdiction.-Supreme Court has no jurisdiction to re-examine a State court decision involving a right to freedom not claimed under Federal law, p. 290.

No citations.

4 Pet. 291-310, 7 L. 862, CONARD v. NICOLL.

Fraud.-Burden of proof is on one alleging it, and the particular act must be shown to be tainted, pp. 296, 297, per Washington, J. Cited and principle followed in Clarke v. White, 12 Pet. 193, 196, 9 L. 1053, 1054, holding the particular act must be shown to be tainted with fraud, notwithstanding party's guilt in any other number of instances; United States v. Wiggins, 14 Pet. 348, 10 L. 488, holding copy of decree of foreign State certified by secretary of government is evidence in our courts; Magniac v. Thompson, 1 Bald. 357, F. C. 8,956, to make contract void for fraud against creditors, both parties must concur in it; United States v. McLellan, 3 Sumn. 352, 356, F. C. 15,698, holding conveyance by debtor, known to be insolvent, to one or more creditors discharging his debts is not a "voluntary assignment," in absence of proof of fraudulent intent; as also in Horsey v. Stockley, 4 Del. Ch. 550, to same effect; see S. C. 4 Houst. 614; in dissenting opinion, Robson v. Harwell, 6 Ga. 614, declaring fraud or circumstances amounting to a charge of

fraud must be alleged; Moore v. Thomas, 1 Or. 204, declaring that before prior unrecorded conveyance can take precedence over a recorded one, the fraud in the second must be proved; Smith v. Montoya, 3 N. Mex. 45 (11), 1 Pac. 181, holding that chattel mortgage given to secure future advances is valid if made in good faith; Irons v. Reyburn, 11 Ark. 389, refusing to consider a plea of fraud not sufficiently proven.

Cited without special application in United States v. Arredondo, 6 Pet. 716, 717, 8 L. 556, 557.

Bankruptcy.—In all cases of bankruptcy debts of the United States should be first satisfied, per Washington J., p. 308.

Cited and applied in Brent v. Bank, 10 Pet. 612, 9 L. 553, holding priority of the United States is in the appropriation of the debtor's estate, and does not overreach transfers, or existing llens; Beaston v. Farmers' Bank, 12 Pet. 134, 9. L. 1029, giving rules affecting this priority; Pacific Ins. Co. v. Conard, Bald. 139, F. C. 10,647, holding that person holding goods in virtue of a respondentia bond, with an assignment of the bill of lading, may recover damages against one who takes them unlawfully; Ex parte Waddell, 28 Fed. Cas. 1314, distinguishing between priority of payment out of a particular fund and a specific lien thereon. Cited, arguendo, in Cahn v. Person, 56 Miss. 363.

Damages. Jury should give such reasonable damages as the plaintiff has actually sustained; per Washington, J., p. 309.

Cited and applied in State v. Smith, 31 Mo. 572, allowing value of goods at time of caption with interest; Cole v. Tucker, 6 Tex. 268, holding that compensatory damages are given where the injury is not tainted with fraud, malice or willful wrong; Curry v. Catlin, 12 Wash. 325, 41 Pac. 56, holding in action for wrongful attachment, which had prevented sale of goods, the sale price is the measure of damages.

Miscellaneous.-Referred to in Conard v. Insurance Co., 6 Pet. 280, 282, 8 L. 398, 399, another decision respecting the same matters. Cited in Keene v. Wheatley, 14 Fed. Cas. 197, to no point decided.

4 Pet. 311-330, 7 L. 869, KING v. HAMILTON

Specific performance lies in the discretion of the court, and whether it will be decreed depends upon the circumstances of the case and substantial justice, p. 328.

The following citing cases affirm and apply this principle: Nickerson v. Nickerson, 127 U. S. 675, 32 L. 318, 8 S. Ct. 1358, dismissing bill; Tufts v. Tufts, 3 Wood. & M. 503, 510, 514, F. C. 14,233, refusing to enforce contract with an illegal consideration; Gould v. Womack, 2 Ala. 92, holding equity will not specifically enforce an unreasonable contract; Morrison v. Peay, 21 Ark. 116, allowing specific performance; Godwin v. Collins, 3 Del. Ch. 207,

dismissing bill; Fitzpatrick v. Beatty, 1 Gilm. 468, ruling similarly; Lee v. Kirby, 104 Mass. 428, holding inadequate consideration, or improvident formation of a contract, is not reason for refusing specific performance; Chute v. Quincy, 156 Mass. 192, 30 N. E. 551, refusing to enforce specifically contract entered into through mistake, of which plaintiff had knowledge; Shuman v. Willets, 17 Neb. 483, 23 N. W. 360, specifically enforcing the contract; Eastman v. Plumer, 46 N. H. 479, holding one, having attempted to repudiate a contract, will not afterwards be allowed specific performance; Stoutenburgh v. Tompkins, 9 N. J. Eq. 335, holding where interest of party passed into the hands of his assignee in bankruptcy there was no mutuality, and specific performance was refused; Blake v. Flatley, 44 N. J. Eq. 231, 6 Am. St. Rep. 888, 14 Atl. 129, dismissing bill, where there was an adequate remedy at law; Peters v. Delaplaine, 49 N. Y. 367, refusing specific performance where vendor had delayed a long time; Cannaday v. Shepard, 2 Jones Eq. 229, and Lloyd v. Wheatley, 2 Jones Eq. 270, refusing to specifically enforce a hard contract; State v. Baum, 6 Ohio, 386, refusing specific performance where contract was uncertain; likewise in City of Tiffin v. Shawhan, 43 Ohio St. 183, 1 N. E. 585, where title deed was doubtful, Holley v. Anness, 41 S. C. 354, 19 S. E. 649, dismissing bill, where non-payment was the only ground for relief; Hemming v. Zimmerschitte, 4 Tex. 166, holding specific performance should have been granted, where the only laches was in not promptly demanding a conveyance; De Cordova v. Smith, 9 Tex. 149, 58 Am. Dec. 143, holding specific performance will not be decreed, when there is strong unrebutted prima ficie evidence of a mutual abandonment; W. Va. O. & O. L. Co. v. Vinal, 14 W. Va. 686, equity may refuse its decree, unless the party will take a decree upon condition of doing certain things. Cited in notes, 54 Am. Dec. 133, and 50 Am. Dec. 676, as to when lapse of time bars relief by specific perform. ance, collecting authorities; Blair v. Snodgrass, 1 Sneed, 25, without specific application.

Equity. He who seeks equity must do equity, p. 328.

Cited and followed in Veazie v. Williams, 8 How. 161, 12 L. 1029, holding that whole of a contract may be annulled, and terms imposed on the plaintiff to let part of the transaction remain undisturbed; Green v. Jones, 76 Me. 569, allowing specific performance where party had so far performed as to take case out of the statute of frauds.

Specific performance.-Under a contract to convey land where there was so great a surplus of land in the patent beyond what it called for, that it could hardly be presumed to have been within the view of either of the parties, the court decreed a conveyance of the surplus, upon condition that vendee pay for same at the average rate per acre, p. 330.

Cited in Perkins v. Winter, 7 Ala. 867, and Terrell v. Kirksey, 14 Ala. 215, holding vendor is not responsible for a deficiency of quantity upon land not sold by the acre, unless guilty of fraud.

Miscellaneous. Cited to no particular point decided by main case in Finucane v. Kearney, 1 Freem. Ch. 68.

4 Pet. 331-348, 7 L. 876, GALT v. GALLOWAY.

Equity. Chancery is not the proper tribunal for relief against mere intruders, but the remedy is ejectment to recover possession, p. 339.

Cited and followed in Fussell v. Gregg, 113 U. S. 554, 28 L. 995, 5. S. Ct. 633, and Fussell v. Hughes, 8 Fed. 395, holding equity has no jurisdiction over a suit based upon an equity title to real estate, unless the nature of the relief asked is equitable.

Land patents.-In Virginia when an entry is surveyed its boundaries are designated, and these limit the claim of the locator, p. 340.

Cited and applied in Mitchell v. Thompson, 1 McLean, 100, F. C. 9,669, holding, in North Carolina, errors in the survey should be corrected in a reasonable time.

Evidence.- Entries made by register of land office, or by person authorized to act for him, are received in courts as evidence of the facts stated, pp. 342, 343.

Cited and applied in Evanston v. Gunn, 99 U. S. 667, 25 L. 307, admitting record kept by employee of Signal Service of the United States; Bly v. United States, 4 Dill. 466, F. C. 1,581, holding official plats in United States Land Office are admissible to show that land on which timber was cut had not been sold by the United States. Land patents.--Surveys in Virginia may be withdrawn after they have been recorded and the warrant may be relocated, p. 342. Cited without special application in Porter v. Robb, 7 Ohio, 209. Agency.-Death of principal revokes powers of an agent, p. 344. Cited and rule applied in Long v. Thayer, 150 U. S. 522, 37 L. 1169, 14 S. Ct. 190, holding payments to agent after principal's death did not discharge the obligation to the estate; Vance v. Anderson, 39 Iowa, 430, holding death of principal revokes power of attorney not coupled with an interest; Clayton v. Merrett, 52 Miss. 359, holding naked power of agency ceases with death of principal; as also in Ish v. Crane, 13 Ohio St. 587, to same effect; Michigan Bank v. Leavenworth, 28 Vt. 217, death revokes all authority to draw on one, though party had no notice of it, as also in Michigan Ins. Co. v. Leavenworth, 30 Vt. 23, 25, ruling similarly. Cited in note, 39 Am. Dec. 88, as to validity of act of agent where parties are ignorant of principal's death, collecting authorities. Cited without special application in Clark v. Sigourney, 17 Conn. 523, and Territory v. Perea, 6 N. Mex. 546, 30 Pac. 931.