ment to prevent the bar of the statute of limitations and revive the debt. The note was made in Louisiana; suit was brought thereon in Mississippi. Upon the question of the application of the illegal interest paid in reduction of the principal, the Circuit Court held that the contract, as to interest, was governed by the

servant of the plaintiff, we are of opinion that the court below was right in holding him to be such fellow-servant and dismissing the action accordingly. The order refusing a new trial is accordingly affirmed.

Gilfillan, C. J., dissents.

UNITED STATES SUPREME COURT ABSTRACT.

MARRIAGE-SETTLEMENT ON WIFE-WHEN VALID AS AGAINST CREDITORS.-It is no longer a disputed question that a husband may settle a portion of his property upon his wife if he does not thereby impair the claims of existing creditors, and the settlement is not intended as a cover to future schemes of fraud. The settlement may be made either by the purchase of property and taking a deed thereof in her name, or by its transfer to trustees for her benefit. And his direct conveyance to her, when the fact that it is intended as such settlement is declared in the instrument or otherwise clearly established, will be sustained in equity against the claims of creditors. The technical reasons of the common law growing out of the unity of husband and wife, which preclude a conveyance between them upon a valuable consideration, will not in such a case prevail in equity and defeat his purpose. Shepard v. Shepard, 7 Johns. Ch. 57; Hunt v. Johnson, 44 N. Y. 27; Story's Eq., § 1380; Pomeroy's Eq., § 1101; Dale v. Lincoln, 62 Ill. 22; Deming v. Williams, 26 Conn. 226; Marrahon v. Marrahon, 4 Met. (Ky.) 85; Sims v. Rickerts, 35 Ind. 181; Story v. Marshall, 24 Tex. 305; Thompson v. Mills, 39 Ind. 532. Such is the purport of our decision in Jones v. Clifton, 101 U. S. 228; 18 Alb. L. J. 276, where it is said: "In all cases where a husband makes a voluntary settlement of any portion of his property for the benefit of others who stand in such a relation to him as to create an obligation, legally or morally, to provide for them, as in the case of a wife or children or parents, the only question that can properly be asked is, does such a disposition of the property deprive others of any existing claims to it. If it does not no one can complain, if the transfer is made matter of public record and not be designed as a scheme to defraud future creditors. And it cannot make any difference through what channel the property passes to the party to be benefited, or to his or her trustee, whether it be by direct conveyance from the husband or through the intervention of others." Whilst property thus conveyed as a settlement upon the wife may be held as her separate estate, beyond the control of her husband, it is of the utmost importance to prevent others from being misled into giving credit to him upon the property, that it should not be mingled up and confounded with that which he retains, or be left under his control and management without evidence or notice by record that it belongs to her. Where it is so mingled, or such notice is not given, his conveyance will be open to suspicion that it was in fact designed as a cover to schemes of fraud. Moore v. Page. Opinion by Field, J.

[Decided March 24, 1884.]

LIMITATIONS-LETTER AS ACKNOWLEDGMENT-ILLEGAL INTEREST-APPLICATION ON PRINCIPAL-LEX FORI. -A letter signed by a firm name acknowledging a debt (note) to be due which was made originally by individual members of the firm, is sufficient acknowledg

Stat. 269) "the amount of conventional interest shall in no case exceed eight per cent, under pain of forfeiture of the entire interest so contracted," and that "if any person hereafter shall pay on any contract a higher rate of interest than the above, as discount or otherwise, the same may be sued for and recovered within twelve months from the time of such payment." By the Mississippi Code, section 2279, the legal rate of interest is fixed, in the absence of contract, at six per cent per annum; "but contracts may be made in writing for the payment of a rate of interest as great as ten per cent per annum. And if a greater rate of interest than ten per cent shall be stipulated for in any case, such excess shall be forfeited on the plea of the party to be charged therewith." It is not claimed that there is any express provision in the Louisiana statute that requires such an application of payments made on account of unlawful interest. It is rested altogether upon the provision that forfeits the whole interest paid, and authorizes the debtor to recover it back within the time limited. But the same provision is contained in section 5198 of the Revised Statutes of the United States, in reference to National banks, under which it has been held that usurious interest actually paid cannot be applied to the discharge of the principal. Driesbach v. National Bank, 104 U. S. 52; Barnet v. National Bank, 98 U. S. 555. In Cook v. Lillo, 103 U. S. 792, the Louisiana statute was considered, and upon the decisions of the Supreme Court of the State, it was decided that the usurious interest cannot be reclaimed nor be imputed to the principal, unless a suit for its recovery is begun or plea of usury set up to the claim within twelve months after the payment is made. Cox v. McIntyre, 6 La. Ann. 470; Weaver v. Maillot, 15 id. 395. It is said however that the law of Louisiana applies and governs, so far as it allows the forfeited interest to be applied in reduction of the principal, in an action on the note, but that the limitation of time within which by that law the right must be exercised, being part of the remedy merely, is governed by the law of Mississippi, being the law of the forum, which contains no such limitation. But the right claimed under the law of Louisiana must be taken as it is given, and is not divisible. The provisions requiring it to be asserted in a particular mode and within a fixed time are conditions and qualifications attached to the right itself, and do not form part of the law of the remedy. If it is not asserted within the permitted period it ceases to exist, and connot be claimed or enforced in any form. It was accordingly held in P. C. & St. L. Ry. Co. v. Hine's Adm'x, 25 Ohio St. 629, under an act which required compensation to be made for causing death by wrongful act, neglect or default, and gave a right of action, provided such action should be commenced within two years after the death of such deceased person, that this proviso was a condition qualifying the right of action, and not a mere limitation on the remedy. Bonte v. Taylor, 24 Ohio St. 628; Pritchard v. Norton, 106 U.S. 124-131. We are therefore of opinion that the Circuit Court erred in not ordering a decree in favor of the complainants below for the amount of the note, with lawful interest from the date up to which interest had been paid. Walsh v. Mayer. Opinion by Matthews, J. [Decided March 17, 1884.]

DAMAGES-INFRINGING PATENT-RULE.-It does not always follow that because a party may have made an

improvement in a machine and obtained a patent for it, another using the improvement and infringing upon the patentee's rights will be mulcted in more than nominal damages for the infringement. If other methods in common use produce the same results, with equal facility and cost, the use of the patented invention cannot add to the gains of the infringer or impair the just rewards of the inventor. The inventor may indeed prohibit the use, or exact a license fee for it, and if such license fee has been generally paid, its amount may be taken as the criterion of damage to him when his rights are infringed. In the absence of such criterion the damages must necessarily be nomiual. Black v. Thorne. Opinion by Field, J. [Decided March 24, 1884.]

MUNICIPAL BONDS-BONA FIDE PURCHASER-ESTOPPEL.—(1) Bonds having been issued by Dixon county, Nebraska, in aid of a railroad company, agreeably to a legislative act which gave the county authority so to do, provided two-thirds of the voters of the county should consent thereto, and provided further that the total amount of said bonds should not exceed ten per cent of the assessed value of the property in the county, an additional issue of bonds by the county for the same purpose, without recourse to fresh legislation therefor, is not authorized by a provision in the State Constitution allowing creditors to issue such bonds to the extent of fifteen per cent of the assessed value of the property in the county. We cannot think it was any part of the purpose of the Constitution of Nebraska to enable a county either to add to its existing or its authorized indebtedness any increase without the express sanction of the Legislature; and are persuaded, on the contrary, that the true object of the proviso is to limit the power of the Legislature itself by definitely fixing the terms and conditions on which alone it was at liberty to permit the increase as well as the creation of municipal indebtedness. The language of the proviso that seems to countenance a contrary construction by words apparently conferring immediate power upon counties to increase their indebtedness, must be taken in connection with the express and positive prohibition of the body of the section. This denies to municipal bodies all power to make any donations to railroads or other works of internal improvement, except by virtue of legislative authority, and an election held to vote on the particular proposition in pursuance thereof. The proviso makes a special rule for a special case, and authorizes an additional amount of indebtedness, but only to be contracted in the contingency mentioned, and subject to the condition already prescribed for all donations-that is, by means of an election to decide the question submitted held in pursuance of statutory authority. (2) All parties are equally bound to know the law; and a certificate reciting the actual facts, and that thereby the bonds were conformable to the law, when judicially speaking, they are not, will not make them so, nor can it work an estoppel upon the county to claim the protection of the law. Otherwise it would always be in the power of a municipal body, to which power was denied, to usurp the forbidden authority by declaring that its assumption was within the law. This would be the clear exercise of legislative power, and would suppose such corporate bodies to be superior to the law itself. And the estoppel does not arise except upon matters of fact which the corporate officers had authority by law to determine and to certify. It is not necessary, it is true, that the recital should enumerate each particular fact essential to the existence of the obligation. A general statement that the bonds have been issued in conformity with the law will suffice, so as to embrace every fact which the officers making the statement are authorized to determine and certify. But it still remains that there must be authority vested

in the officers by law as to each necessary fact, whether enumerated or non-enumerated, to ascertain and determine its existence, and to guarantee to those dealing with them the truth and conclusiveness of their admissions. This principle is the essence of the rule declared upon this point by this court in Town of Coloma v. Eaves, 92 U. S. 484. See Marcy v. Township of Oswego, 92 U. S. 637; Commissioners v. Bolles, 94 id. 104; Commissioners v. Clark, id. 278; County of Warren v. Marcy, 97 id. 96; Pana v. Bowler, 107 id. 529. This case is within the principle of the decision in Buchanan v. Litchfield, 102 U. S. 278, where it was said, p. 289, that "the purchaser of the bonds was certainly bound to take notice, not only of the constitutional limitation upon municipal indebtedness, but of such facts as the authorized official assessments disclosed concerning the valuation of taxable property within the city for the year 1873." And it is directly within the decision in National Bank v. Porter Towushi p, 110 U. S.; Marcy v. Township of Oswego, 92 id. 637, distinguished. County of Dixon v. Field. Opinion by Matthews, J.

SHIPPING-STIPULATIONS IN BILL OF LADING-RIGHT TO INSIST ON.-A charter-party contained the following stipulations: "The captain shall sign bills of lading at any rate of freight as presented, without prejudice to this charter-party; any difference between the amount of freight by the bills of lading and this charter-party to be settled at port of loading, in cash, before sailing. * * * The owners or master of the steamer shall have an absolute charge and lien upon the cargo and goods laden on board for the recovery and pay. ment of all freight, dead freight, demurrage and all other charges whatsoever." The master refused to sign bills of lading unless there was stipulated or expressed therein "other conditions as per charterparty." Held, that the master had the right to insist upon such stipulation. The Ibis, 3 Woods, 28, distinguished. Cir. Ct., E. D. La. The Peer of the Realm. Opinion by Pardee, J.

CONTRACT-RESTRAINT OF TRADE-EXCLUSIVE PRIVILEGE OF ADMISSION TO PRIVATE PARK-INJUNCTION -TAXATION DOES NOT MAKE USE PUBLIC.--The owner of what is known as the Point of Lookout Mountain, a favorite resort on account of the extended view therefrom, who was also the owner of a chartered turnpike, which was a regular toll road leading up the mountain nearly to the Point, inclosed her, ground as a park and charged an entrance fee from visitors. Subsequently she entered into a contract with a certain party by the terms of which he was to carry all passengers over her turnpike instead of over another route leading to the Point, and was to have the exclusive privilege of bringing or conveying persons into the park. Complainant, who was engaged principally in the business of carrying visitors to aud from the park, sought to enjoin the owner from refusing admission thereto to such parties carried there by him as might tender the usual admission fee. Held, that the fact that the park had long been a popular resort for sight-seers, that an admission fee was charged, and that a tax was imposed by the State on the owner for the privilege of keeping a park, did not render the use to which the property was devoted a public use, or change the character of the property, and that the court could not invade the rights of the owner and enjoin her from carrying out the terms of her contract. Held, further, that if she *Appearing in 19 Federal Reporter.

had attempted to interfere with any of the rights of complainant in the use of the chartered turupike such interference would not have been tolerated. (2) That the State imposes a tax on the privilege of deriving profit from the use of property in a certain manner does not render such use public, but rather recognizes the fact that the property is private, and subject to the control of its owner. Cir. Ct., E. D. Tenn. Sharp v. Whiteside. Opinion by Key, J.

INSOLVENCY--STATE LAW--RIGHTS OF CREDITOR RESIDENT OF SISTER STATE--FEDERAL JURISDICTION.-The insolvent laws of Louisiana do not, by their declaratory force solely, without any other investiture of title, the possession remaining in the debtor, remove the property of the debtor beyond the reach of a creditor who is a resident of another State, and who proceeds in the Circuit Court. In the case presented here the plaintiff is in possession, and both as respects title and possession his right is absolute but for a right, which if it exists at all, comes from the inherent force of a State insolvent law, which, unaccompanied by possession, is, as to this plaintiff, like an extra-territorial bankrupt or insolvent law, and according to the summary of authorities in Booth v. Clark, 17 How. 322 (decided at the same term with the case of Horn v. Bank, 17 How. 159), gives to the foreign assignee no title as against local creditors who attach. The Constitution of the United States operates within as well as without the State which enacts insolvent laws. No State laws in conflict with it can be rules of property. The doctrine of comity between the Federal and State courts has been constantly extending in recognition and clear and rigid enforcement; but the rules of law, as expounded in Ogden v. Saunders, 12 Wheat. 213, are, as it seems to me, unchanged. In accordance with that case, in this forum at least, the possession of a foreign citizen under an attachment must prevail against the syndic who claims merely by the declaratory force of a State insolvent law. A mere declaration in a statute, which is by the settled adjudications inoperative against a party domiciled as is the plaintiff, cannot oust this court of administration of the property, which is, consistently with all the rules of judicial comity, in its possession. Cir. Ct., E. D. La. Mississippi Mills Co. v. Ranlett. Opinion by Billings, J.

MICHIGAN SUPREME COURT ABSTRACT.

CONVERSION-VENDEE OF LAND HARVESTING WHEAT WITH KNOWLEDGE OF TITLE IN THIRD PERSON.—(1) The plaintiff herein sowed wheat in certain lands under an agreement with the guardian of the estate of which the lands were a part. This agreement the guardian had a legal right to make. Campan v. Shaw, 15 Mich. 226; Kinney v. Harrett, 46 id. 89; 8 N. W. Rep. 708. (2) A party who purchased the land after the wheat was planted, and with knowledge of the agreement, carried the wheat off as soon as it was harvested and locked it up in his barn. Held, that the agreement was a valid one, and that the taking of the wheat amounted to a conversion thereof. Wheldon v. Lytle. Opinion by Champlin, J. [Decided March 6, 1884.]

MANDAMUS-ACT PROCEEDINGS.-Mandamus will lie to compel the recorder of a village to sell property for delinquent taxes where the order of the common council is regular upon its face. The duty is ministerial, and his business is to proceed as ordered, and to let the individual taxpayers raise their own objections and question the legality of the assessments. There may be none to object however irregular the proceedings, and this mandamus does not affect the right of the taxpayers to object on

MINISTERIAL-CERTIORARI-TAX

any ground they see fit. We have decided heretofore that certiorari is not a proper remedy in this class of cases; and all the objections to allowing tax proceedings to be reviewed on certiorari are applicable here. and we therefore decline to consider the regularity of the tax proceedings on their motion. See Whitbeck v. Hudson, 50 Mich. 86; 14 N. W. Rep. 708; Tucker v. Parker, 50 Mich. 5; 14 N. W. Rep. 676. Hudson, etc., v. Whitney. Opinion by Sherwood, J. [Decided March 6, 1884.]

INFANCY

MINOR CONVEYS-ATTAINING FULL AGE GIVES DEED TO ANOTHER SECOND GRANTEE MAY MAINTAIN EJECTMENT-RE-ENTRY UNNECESSARY.-Defendant claimed title under deed given by an infant who, arriving at majority, conveyed to plaintiff. Held, that the deed of an infant is voidable, and must be avoided before the action will lie; but when properly avoided no other thing is necessary to be done before bringing suit. The necessity for the infant to make entry before giving the deed of avoidance, or before bringing suit, does not exist in this State. Title by descent, and our mode of transferring title by deed, are regulated by statute. The old common-law doctrine of feoffment with livery of seisin does not constitute any part of our law of conveyancing. Our registry laws supply their place, and furnish the notoriety of transfer intended to be given by that ancient mode of passing title; and the making and recording of the second deed in this case was entirely sufficient. 2 How. Stat., ch. 216, §§ 5652, 5657; 1 Pars. Cont. (3d ed.), pp. 373, 374; Eagle Fire Co. v. Lent, 6 Paige, 635; Cressenger v. Welch, 15 Ohio, 192; Jackson v. Carpenter, 11 Johns. 539; Jackson v. Burchin, 14 id. 124; Hoyle v. Stowe, 2 Dev. & B. Law, 320; Lessee of Tucker v. Moreland, 10 Pet. 58; Bing. Inf. 60; Dixon v. Merritt, 21 Minn. 196; McGan v. Marshall, 7 Humph, 121; Peterson v. Laik, 24 Mo. 541; Lessee of Drake v. Ramsay, 5 Ohio, 252; Hastings v. Dollarhide, 24 Cal. 195; Pitcher v. Laycock, 7 Ind. 398; Laws of 1881, p. 385; Crane v. Rieder, 21 Mich. 82; Prout v. Wiley, 28 id. 164. This record fails to show any equities existing which required action on the part of the minor after she arrived at age, or her grantee, to make notice necessary before bringing suit. We find nothing in the case showing the plaintiff in any way estopped from bringing his suit. Haynes v. Bennett. Opinion by Sherwood, J. (See 30 Eng. R. 618.-ED.) [Decided March 6, 1884.]

WISCONSIN SUPREME COURT ABSTRACT.

EQUITY-ADEQUATE REMEDY AT LAW-IRREGULAR JUDGMENT.-This is a complaint to enjoin the sale of the lands of the plaintiff by the defendant, as sheriff, upon two executions, issued upon two pretended judgments against her, which she alleges are no judgments, on the grounds, as to one, that it had not been properly docketed, and as to the other, that there were no parties to it. This appeal is taken from an order dissolving a preliminary injunction which had been issued upon the complaint. All possible and adequate remedies which may be obtained in one suit must be sought in that suit rather than by another suit, either at law or in equity. This is an elementary principle. Where there is an adequate remedy at law courts of equity will not take jurisdiction is another elementary principle. Both of these principles are violated in this action. In Thomas v. West, 17 N. W. Rep. 684, Mr. Justice Taylor said: "Where a court of equity proceeds to set aside a judgment at law it proceeds upon equitable considerations only. If the judgment rendered is not inequitable as between the parties, no matter how irregular or void the same may be, a court of equity will

not interfere, but will leave the defendant to such remedies as a court of law can give him to avoid the effect thereof," citing Stokes v. Knorr, 11 Wis. 389; Ableman v. Roth, 12 id. 81-90; Merritt v. Baldwin, 6 id. 439; Wright v. Eaton, 7 id. 595; McIndoe v. Hazelton, 19 id. 396; Barber v. Rukeyser, 39 id. 590; Jilsen v. Stebbins, 41 id. 235; Hiles v. Mosher, 44 id. 601, and other cases. Wilkinson v. Rewey. Opinion by Orton, J. (See 4 U. S. Sup. Ct. 232.-ED.)

[Decided Feb. 19, 1884.]

INSANITY-RETURN TO, AFTER LUCID INTERVALBURDEN OF PROOF.-Lunacy being once established, the burden is on the party claiming through some act of the lunatic to show that it was done in a lucid interval. A return to sanity being proved, the burden is on the party who shows that he has again become insaue. Wright v. Jackson. Opinion by Lyon, J. [Decided Feb. 19, 1884.]

SURETY BOND FOR FAITHFUL PERFORMANCE DAMAGES - INTEREST ON PENALTY.-(1) Where an additional bond is given as further security for a guardian's performance of his trust, the surety thereon is liable for the failure of such guardian to account for money received by him both before and after the execution of the bond, unless it affirmatively appear that a conversion of it took place before the surety became bound; for such conversion he would not be liable. United States v. Giles, 9 Cranch, 215-237; United States v. Linn, 1 How. 104-113; Farrar v. United States, 5 Pet. 373-389; United States v. Boyd, 15 id. 187; Vivian v.Otis, 24 Wis. 250; State v. Hood, 7 Blatchf. 127; Rochester v. Randall,105 Mass. 295; distinguished by Myers v. United States, 1 McL. 493. (2) The evidence clearly established the fact that the amount due from the principal in the bond to the respondents at the time of filing their claims in the county court exceeded the penalty of the bond. The only question is, can the obligee in a penal bond recover in an action against the surety any amount beyond the penalty? We think the authorities in this country establish the doctrine that when the damages resulting from the breach or breaches of the bond exceed the penalty, interest on the amount of the penalty may be recovered from the time of the breach in excess of the penalty. This rule must be limited to cases where interest is recoverable against the principal upon the damages resulting from the breach of the condition of the bond. United States v. Arnold, 1 Gall. (U. S. C. C.) 348-360; Warner v. Thurlo, 15 Mass. 154; Harris v. Clapp, 1 id. 308; Carter v. Thorn, 18 B. Mon. 613; Brainard v. Jones, 18 N. Y. 35; Long's Adm'r v. Long, 16 N. J. Eq. 59; 2 Suth. Dam. 15, note 1, cases cited; 2 Sedg. Dam. (7th ed.) 262, note a, and cases cited; State v. Hoarey, 44 Wis. 615-621. The cases are not entirely harmonious as to the date from which interest should be computed upon the penalty. The case cited from New York holds that interest may be recovered from the date of the breach of the bond, if the damages then equal or exceed the penalty; and in Massachusetts it is held that interest is recoverable from the date of the commencement of the action. We need not determine which of these rules should be followed, or whether the rule in equity should be followed which gives damages by way of interest on the penalty when the plaintiff is unjustly delayed in his recovery by vexatious proceedings as was held in Grant v. Grant, 3 Sim. 340; see cases cited on page 355, as the allowance of interest in these cases comes within all the rules above stated. Clark v. Wilkinson. Opinion by Taylor, J.

[Decided Jan. 19, 1884.]

CONTRACT, VOID BY STATUTE-MONEY PAID UNDER, CANNOT BE RECOVERED-PARTIES IN PARI DELICTODISTINCTION IN THE CASES.-In an action to recover

money paid for stock of a corporation at half its value, being in violation of section 1753 of the Revised Statutes, held, that plaintiff was not entitled to recover. Being void by statute, neither party could maintain an action founded upon such contract to enforce the same, nor could one party recover damages for the other for a refusal to perform it on his part. This has been so often determined in this and in other courts that it needs no further discussion. Smith v. Finch, 8 Wis. 245; Blanchard v. McDougal, 6 id. 167; Swartzer v. Gillett, 2 Pin. 238, 239; Moore v. Kendall, id. 99; Brandeis v. Neustadtl, 13 Wis. 153; Knoll v. Harvey, 19 id. 99; Tiernan v.Gibney,24 id.190; Plank R. Co. v. Plank R. Co., 7 id. 59; Melchoir v. McCarty, 31 id. 252; Troewert v. Decker, 51 id. 46; S. C., 8 N. W. Rep. 26; Ins. Co. v. Harvey, 11 Wis. 394; De Forbes v. Railroad Co., 52 id. 320; S. C., 9 N. W. Rep. 17; In re Comstock, 3 Sawy. 218; Bank v. Merrick, 14 Mass. 324; Russell v. De Grand, 15 id. 37; Wheeler v. Russell, 17 id. 280; White v. Bank, 22 Pick. 181; Belding v. Pitkin, 2 Caines, 149; Shiffner v. Gordon, 12 East, 304; Noel v. Drake, 28 Kans. 265; Bank of U. S. v. Owens, 2 Pet. 538; Harris v. Runnells, 12 How. 83; William v. Cheney, 3 Gray, 222; Roche v. Ladd, 1 Allen, 441; Insurance Co. v. Pursel, 10 id 232; Insurance Co. v. Slaughter, 20 Ind. 520; Insurance Co. v. Rosenthal, 55 Ill. 90. Admitting this to be the law, the learned counsel for the respondent contends that it does not bar his right to recover in this action. He claims he is not seeking to enforce the illegal and void contract, but repudiates it, and claims the right to recover what he has paid to the corporation upon such void contract. This presents the real question in the case. The respondent and the company are in pari delicto, both violators of the law, and no action in favor of either which grows directly out of the illegal contract can be maintained. It does not follow that because a contract is void money paid under it can be recovered back by the payor in all cases. The cases cited by the learned counsel for the respondent, in which the court has held that money paid upon a void contract may be recovered back by the payor, are cases either where the contract itself is not prohibited by law, but is declared to be void because not made or evidenced in the manner prescribed by law, or where the contract is declared void by law as to one party in order to protect the other against injustice and oppression. Brandeis v. Neustadtl, 13 Wis. 158; Follenson v. Gunderson, 1 id. 113; and Thomas v. Sowards, 25 id. 631, are cases of the first class; Wood v. Lake, 13 id. 84; Gill v. Rice, id. 549; Dole v. Northrop, 19 id. 249; Lee v. Peckham, 17 id. 394; Bank v. Plankington, 27 id. 177, and many others that might be cited are cases of the second class arising under the usury laws of this State. In the last case cited ths late Chief Justice Dixon says: "It is a familiar doctrine or rule of construction with respect to these laws, supposed to be enacted to protect the weak and necessitous from being overreached and oppressed by the powerful and rich, that both parties are not particeps criminis, but only the lender can be regarded as the oppressor, and he alone is within the pale of the law. All the penalties of the law are enacted against him, and he alone can be guilty of a violation of it. * * * Hence the borrower, whatever his knowledge or intention may be, is always regarded as innocent." The following cases in this court would seem to be conclusive against the plaintiff's right to recover: Moore v. Kendall, 2 Pin. 99. In this early case it was held that a sale of property on Sunday was a violation of law, and yet, when the sale and delivery were made on that day neither party could rescind the contract and recover back the property or purchase money. Swartzer v. Gillett, 2 Pin. 238. In this case the court refused to interfere to set aside a conveyance of real estate, which was made by the