delivered the opinion of the court May 7th 1879.

This case is ruled by the appeal of the Second National Bank of Titusville, 4 Norris 529. It was there held that the mere fact that a debtor has paid or agreed to pay in good faith, and in the usual course of business, more than six per cent, interest, is not enough to establish a fraud upon' creditors, and that the mere refusal of the debtor to contest the claim against him does not of itself amount to such fraud; and that it is only where an usurious contract is entered into collusively as a scheme to hinder and delay creditors that the latter have any standing to contest a judgment entered upon such usurious contract. The case referred to had not been decided when the case in hand was tried in the court below. Had it been the rulings of the learned judge would have been different, as the application of the principles announced in 4 Norris, makes an end of this case. There is nothing in it to show fraud and collusion in fact. No such fraud is even averred in the affidavit upon which the feigned issue was granted. It is not denied that when Cash gave the judgment-note of $3000 to Wheelock in 1870, and agreed to pay thereon interest at the rate of ten per centum, he was perfectly solvent. His insolvency occurred about the time of the revival of the judgment in 1875. *301And even then there is no evidence that Wheelock knew of his insolvency. On the contrary, he swears that he believed he had abundant means to pay his debts at the time. The including of the §700 of extra interest, was in pursuance of the contract of the parties made in good faith years before. It contained no element of a collusive fraud, a fraud in fact to hinder and delay the creditors of Cash. There was error in awarding the feigned issue. The affidavit did not set out such facts as to justify it. There was also error in the portions of the charge contained in the fourth and fifth specifications. The defendant’s second point (seventh specification), should have been affirmed without qualification.

Judgment reversed, and a venire facias de novo awarded.

Wood v. Wheelock.

The following opinion was delivered by

May 7th 1879:

What has been said in Wheelock v. Wood, just decided, is, for the most part, applicable to this case. This writ of error, however, was taken out by the plaintiff's below, who obtained a verdict in their favor to the extent of the usurious interest included in the revival of the judgment in Wheelock v. Cash. The effect of the verdict is to postpone said judgment in favor of the plaintiffs for the excess of interest only. The plaintiff’s contended and asked the court to instruct the jury that if the Wheelock judgment was tainted with fraud at all, it affected the entire judgment, and that the whole of it must be postponed. As the charge of the court was more favorable to the plaintiffs than they were entitled to, the judgment upon this writ of error must bo affirmed.