Page:Federal Reporter, 1st Series, Volume 6.djvu/226

 211 FEDERAL REFOBTEIt. �interest were theref ore payments under and in discharge of a contract which was, under the law when entered into, an usuri- ous contract. The law of 1869 did not legalize usurious con- tracts ; it only permitted parties af ter its passage to make contracta which before that time were ustirious ; and it is a well-settled principle of law that whether a contract is usuri- ous must be determined by the law in force at the time of its execution. In both the case of Samyn v. Phillips, 15 Ohio St. 218, and that of Mueller v. McGregor, 28 Ohio St. 265, the original contracts under which the interest was paid were under the 10 per cent, law, and the payment of the interest subsequent to the time limited by the contracts was a pay- ment of that which, if the original contract had continued, would have been the legal rate of interest. I think, there- fore, that the doctrine of these cases cannot apply to the present case, and that the payment of 8 per cent, was in ful- filment of a contract usurious when made, and must be held to continue so even after the passage of the act of 1869. �But, aside from this, the rate of interest which was paid was greater than 8 per cent, upon the amount which was legally due at the time of its payment; and this latter view applies to any interest paid by the executors after the expira- tion of the term of five years extended by the agreement of J. W. Coleman. These views render unnecessary any ex- amination of the question as to the power of the executors under this will. �It follows, from the conclusions arrived at, that ail pay- ments of interest involved usury, and .that the excess above 6 per cent, must be applied as payments upon the principal debt, and a decree entered for the payment of the balance found due. ��� �