The usurious contract having been made before the insolvency of the plaintiff, all his right of action to recover the statute penalty passed by the assignment and became a part of his estate in insolvency. Gray v. Bennett, 3 Met. 522. Cutler v. Bubier, 4 Gray, 588. Whether this was a present right of action which could be immediately enforced, or a locus peni* tentice still remained until the usurious lender had received more than the sum lent with lawful interest, can in the opinion of the court make no difference. In either case, the right to the penalty, whether absolute or contingent, was a right of property which vested in the assignee, and could be enforced or released by him alone. The plaintiff, therefore, cannot maintain this action, and his

Exceptions are overruled.