until it is dissolved. The cestui que trust may pursue the property through every mutation where it comes back to the trustee; or may demand the proceeds when the property is irreclaimable. De Bevoise v. Sandford, 1 Hoff. 192. 2. (Same.) But where trust property was sold under hostile proceedings, by a judicial sentence, upon an incumbrance made prior to the trust, and the trustee subsequently purchases from a bona fide purchaser, the relation does not exist, and the property may not be followed. It must be established, that the trustee unwarrantably promoted or allowed the proceedings, in order to realize an advantage to himself. Ib.

USURY. (Delivery up of note.) The court will decree the delivery up of a note given as a security on a usurious loan, and retained by a broker as security for usurious interest paid by him and for his commissions in effecting the loan, the principal and legal interest having been paid. The general doctrine of the court, that it will not aid either party in executing an illegal contract, or enforce any claim which depends upon or results from it, is applicable as well to a contract in violation of a positive statute, as to one immoral in itself. The court actively interposes where the transaction is as it were in transitu, as where money is deposited with a stakeholder upon gambling transactions. Cowman v. Sedgwick, 1 Hoff. 60.

2. (Effacing of.) Neither the renewal of an old nor substitution of a new security between the same parties can efface usury; nor further security; nor a guaranty given subsequently by a stranger. But if the usurious instrument comes to the hands of an innocent holder, and in consideration of forbearance a new security is given to him, it is valid. And whether the holder took it for an antecedent debt, or paid money for it at the time, is immaterial. Brinckerhoff v. Foote, 1 Hoff. 291. 3. (Evidence of.) No general evidence of a multitude of usurious

transactions between the parties about the time of giving a security is sufficient upon a question of usury; nor the evidence of a witness that he believes he was privy to every transaction, and all to which he was privy were tainted. There must be distinct testimony affecting the specific instrument. Ib.

4. (Commission.) On a loan of credit or name, (not of money,)

on notes running on time, a commission taken for it, not exceeding the legal interest, does not amount to usury, even where the parties lending their name get an old debt guaranteed as a further consideration. Bullock v. Boyd, 1 Hoff. 294. 5. (Assignment of mortgage.) A bond and mortgage were taken, as alleged, upon gross usury, and assigned for a valuable consideration, without notice of the taint. The assignee commenced a suit at law upon the bond in the assignor's name, and obtained judgment by default at the trial. Execution was returned unsatisfied.

He then proceeded to advertise the premises for sale under the mortgage, and pursuant to the statute. The mortgagor filed his bill for relief, and to stay such proceedings against the assignor and assignee. The bill was dismissed. Topping v. Van Pelt, 1 Hoff. 545.

6. Loan of depreciated notes to be repaid in sound funds, made to enable the borrower to pay a debt dollar for dollar, not usurious. Burton v. The School Commissioners, Meigs, 585.

7. (Bill to recover usurious excess.) A bill will lie to recover the usurious excess paid upon a contract, though a judgment at law has been obtained against the borrower upon a contract, including the usurious interest, and such judgment has been paid. The statute gives the remedy for the recovery of such usurious excess; and it is immaterial whether such excess has been paid voluntarily or compulsorily, by process of law. Bartholomew v. Yaw, 1 Clarke, 16.

8. (What.) Usury consists in a corrupt agreement for a loan at seven per cent. interest. Staley v. Kneeland, 1 Clarke, 30. 9. (Same.) Obligations for the payment of money upon bona fide consideration, may be purchased of the obligee by a third person at less than their face, and the purchase will not be usurious.

lb.

10. (Same.) So an obligor may purchase his own obligation from the person to whom he has executed, at less than its face, and such purchase will not be usurious, provided such purchase is

bona fide and not connected with any previous agreement so to purchase. Such purchase would be usurious if coupled with an agreement or understanding so to do, made before the execution of the obligation. Ib.

11. (Intention.) An intention to commit usury will not avoid a contract, unless the loan actually made is accompanied by a corrupt agreement to take more than the legal rate of interest, particularly if the interest actually reserved does not exceed the legal rate of interest. Bank of Monroe v. Strong, 1 Clarke,

76.

12. (Abandonment of usurious contract.) An usurious contract may be abandoned by the mutual consent of both parties, when the security is destroyed or cancelled, so that it can never be made the foundation of an action; and in such case a new promise by the borrower to pay the amount borrowed with lawful interest, will be binding; but to make such new promise valid and binding, the abandonment of the usurious contract must be made with the full knowledge of both parties as to the precise situation of the usurious contract, and of the facts which are alleged to constitute its abandonment. Ib.

13. (Change of security.) A cash note which is usurious, being changed to a chattel note, does not purge the usury. A suit commenced upon such chattel note, and afterwards compromised, by giving farther time on the one hand, and additional security on the other, the same note still remaining, does not purge the usury. Dunning v. Merrill, 1 Clarke, 252.

14. (Same.) An original taint of usury attaches to the whole family of consecutive obligations and securities growing out of the original vicious transaction; and none of the descendant obligations, however remote, can be free of the taint, if the descent can be fairly traced. Ib.

15. (Depends upon intent.) Usury depends upon intent; and the court will look into the whole transaction-subsequent acts as well as cotemporaneous acts—to judge of the intent of the parties at the time of the transaction; and if, upon the whole, an usurious intent is apparent, the contract will be declared void. Bardwell v. Howe, 1 Clarke, 281.

16. (Sale of chose in action.) A chose in action, valid in its inception, may be sold at a discount less than its face and beyond the legal rate of interest, without subjecting the purchaser to the imputation of usury. Western Reserve Bank v. Potter, 1 Clarke, 432.

17. (Assignment.) In an assignment of assignable paper for less than its face, the question of fact to be considered is, whether it is an assignment as a bona fide sale, or a device to cover an usurious loan-in other words, whether it is a sale or a loan. lb. 18. (Guaranty of full payment.) A guaranty of payment of the full amount mentioned in the bond, assigned for less than its face, is not, of itself, conclusive evidence that the assignment was made in pursuance of an usurious agreement; particularly, in a suit by the assignee against the obligor upon the bond. 16. 19. (Mortgage.) An assignment of a mortgage for less than its face, will enable the assignee to recover the whole amount secured by the mortgage of the mortgagor, even though the assignment was accompanied by a guaranty of payment of the full amount due and to grow due upon the mortgage; and in a suit by the assignee against the mortgagor to foreclose the mortgage, the mortgagor cannot set up usury in the transfer from the mortgagee to the assignee. Ib.

20. (Remedy of purchaser.) A purchaser of premises incumbered

by an usurious mortgage, cannot file a bill in this court either for discovery or relief, to set aside the mortgage as usurious, without paying or offering to pay the amount actually loaned and secured by the mortgage, with interest. Cole v. Savage, 1 Clarke, 482.

21. (Same.) A bill filed by a subsequent purchaser of mortgaged premises, to set aside the previous mortgage on account of usury; and in the event the mortgage should not be declared usurious, to obtain a reduction of the amount claimed to be due upon a foreclosure by advertisement, cannot be sustained without the complainant pays or offers to pay the amount actually loaned. Ib.

22. (Sureties.) Sureties on an usurious note, joint and several in

its obligation, may file a bill against the usurious lender, to discharge themselves from their obligation upon the note without making their principal a party to the suit. Beggs v. Butler, 1 Clarke, 517.

23. (Party to do equity.) If a party comes into equity in a usury case, and makes a mistake which makes it necessary for him to apply to the court for a favor, it is competent for the court as a condition of granting the favor, to compel the party to do equity, by payment of the money actually loaned. Post v. Boardman, 1 Clarke, 523.

24. (Transfer of land contract.) An executory contract for the sale and purchase of lands, transfered by the vendee to a third person, may be surrendered by such third person, and a new agreement for the sale of the same lands to the assignee at a larger price and upon a longer credit, is not usurious, per se; and a mortgage given in pursuance of such new agreement will be declared void for usury. F. L. & T. Company v. Smith, 1 Clarke, 540.

VENDOR AND PURCHASER. (Equitable right.) Where a vendee chooses to take, subject to an equitable right created by the vendor, the latter cannot evade performance on that account. Westervelt v. Matheson, 1 Hoff. 37.

2. (Incumbrances.) A purchaser for full value is entitled to have incumbrances removed out of the purchase money. lb.

3. (Same.) Where both parties bargain at a full value, the contract would be violated, if the seller could add a new price in the shape of an incumbrance, even though each knew of it. Ib. 4. (Inadequacy.) A purchase made at $2,900, while the value of the property was estimated by witnesses from $2,800 to $3,500. Taking the largest sum as the value, it would not be a case of gross inadequacy. Ib.

5. (Interest.) The general rule of the court, on a bill for performance of a contract of sale, is to allow interest on the purchase money from the period fixed for completion, and to give the purchaser the rents and profits. Where the vendor has caused delay without cause, and the interest will exceed the