Page:Federal Reporter, 1st Series, Volume 5.djvu/505

 'iiaRiE V. stKûdse. 49? �• Payments inay be a^plied T)y a creditor to demands, not' reboTerable at law, when ko stal;ute prohibits the côntract, but siûiply denies a remedy to enforce them. In such cases the côntract is not illegal, and the money, if voluntarily paid, cannot be recovered back. But the right does not extend to contracta which are "prohibited by law unàer heavy penal forfeitures and payments, which may at once be recovered back because illegal." 80 held where a payment had been applied to a grossly usurious côntract which could not have been enforeed, and the law gave the debtor a right to recover back three times the amount paid for usurious interest. Ro- han V. Hanson, supra, �That under the statute of Nevada an agreement to pay 2 per cent, per month interest is' laTvful, althoti^H not in writ- ing, and that such interest is a proper item tO; enter-into^an aceount stated, has juôt been decided» Itisequally clear that under the same statute it is perfectly legal'to pay that late without any written agreement tô do so.' ' ■ ~ �• Moiiey eô paid "cannot be :|:ecDvered back if the payaient vras voluntary. In the recent case of Marvin y. Mandel, 125, Mass. i562,i the^ decisipn waa upçn, a statute of, that' state ■which allows. parties to icoatract in writing for anyirate of interest, but, unless the côntract is in writing, no inoiref' than Q per cent, can be recovered by action; and upon this it xmr held that, without a writlen côntract, it was lawful'tô pay and receive a greater rate than 6 per cent., and ^theit, Jwl^û' -yoluntarily pai4, it could not be recovered back.,. . �In this case the last payment was made some months be- fore any controversy arose about the charge for interest, mA ■there is but one conclusion possible ûpon ail the authorities, and it is that the creditors had a lawful right to apply the unappropriated payments ût Strouse to extinguish the oldest items of the aceount, including those for interest at the rate of 2 per cent, per month. Had the creditors done nothing more than to set the items of credit opposite the debits, this of itself would have amounted to an application of them to the payment of those debits. Claytori's Case, 1 Meriv. 608 ; "Willard's Equity, 102. And, in the absence of any specifie ����