Page:Federal Reporter, 1st Series, Volume 3.djvu/507

 600 FEDERAL REPORTER. �assignee urged the settlement upon Larned on the ground that he could, if he pleased, defend against Larned's claim on the ground of usury, to which Larned replied that he thought he could. beat him. Finally, it was agreed to between them, and then application was made to the court to authorize it, as above stated. �Upon these facts, and upon the respective claims of the parties, I am clearly of opinion thr.t the order should be vaeated. �It is unnecessary to determine whether an assignee in bank- ruptcy is bound to set up usury as a defenee to a claim made against the estate for the purpose of avoiding what is in other respects a valid and meritorious claim. That he may do so has frequently been decided. The only authority oited by the learned counsel for the respondent, for the proposition that an assignee for the beneflt of creditors is not bound to do so, seems to be rather the suggestion of a doubt than, a ruling to that effect of the learned court. Beach':^, Fplton Bank, 3 Wend. 573. It would seem that the rights Of credit- ors are fixed and determined by the law, and that the assignee appointed by the law to enforce them can.hardly be vested with a discretion which, if it exists, is essentialiy arbitrary, to enforce them or not as he sees fit. But, be this as it may, this question is not involved in the present case. There is a clear distinction between availing one's self of a defenee pf usury to avoid a loan, and availing one's self of those equita- ble rules which are applied by the courts in the adj^ustment of a usurious loan which has not been paid, but still remains executory. The former has been sometimes denounced as harsh and inequitable ; the latter can never be so considered. For an assignee to give up the benefit of those rules would be, in effect, applying the estate in payment of usury. �Whenever the parties to a usurious loan are obliged to re- sort to a court of equity for relief for the foreclosure of securi- ties, or for their redemption, they are forced to submit to an equitable adjustment of the debt, which is held to be the pay- ment of the loan with lawful interest. AU payments of inter- est lu excesB of this are held to be nnder duress, and not ����