Assigned Estate of Selser

Pee Cueiam :

The appellant assigns error to the allowance of the claims of Isaac Jeanes & Co. and Coon Brothers & Co. Neither requires an extended discussion. That of Isaac Jeanes & Co. is objected to principally upon the ground that it is usurious. The alleged usury consists mainly in adding interest to principal in the accounts as furnished from time to time, the effect of ■which, the appellant contended, was to allow interest upon interest ; and it was alleged that some of the loans were at a higher rate of interest than six per cent. On the other hand, it was conceded that some were at a less rate than six per cent. It does not appear very clearly what the average rate would be; nor is it material, as yearly settlements were made between Isaac Jeanes & Co. and Selser & Brother, and no objection made by the latter. The appellant is an unsecured creditor of Selser & Brother, and has no standing to object to these settlements. It is not now unlawful for a debtor to pay more than six per cent; and a creditor has no right to attack such a transaction, unless the agreement to pay a higher rate was part of a scheme to cheat and defraud creditors. There was nothing in the case from which such an inference could be fairly drawn.

Nor do we see any reason why Coon Brothers & Co. should not have been awarded a dividend out of the assigned estate. It is true, the auditor found that the agreement of May 1,1886, by wbicb Selser & Brother authorized Coon Brothers & Co. to retain all dividends to be paid by tlie assignees of J. H. Larzallere & Co., was in full satisfaction of the claim of the former for tbe loss on the tomatoes bought on the joint account. The learned judge below, however, reversed this finding of tbe auditor, and, for reasons which we think sufficient, beld that the assignment of tbe Larzellere dividend was made by Selser & Brother to Coon Brothers & Co. merely on account of any such loss, not in satisfaction thereof. The evidence fully justified this finding.

The decree is affirmed, and the appeal dismissed at the costs of the appellant.