
    James Graham and another vs. Thomas Cooper.
    Where interest greater than at the rate of six per cent, has been voluntarily paid, the same cannot be recovered back, or set off against the principal debt.
    This is a Writ op Error to the Court of Common Pleas of Butler County.
    
      The original action was Assumpsit, instituted by the Defen^ant ’n ®rror against the Plaintiffs in Error upon a promissory for $1176 22.
    The bill of exceptions shows that sundry payments of interest at a greater ‘rate than six per cent, had been made and indorsed upon the note. The indorsements were all similar in form, though differing in amount, and in the rate of interest, and alike to these :
    ■ “ Paid on the within, sixty dollars in full for six months interest. August 8, 1840.”
    
      “ Paid two hundred and forty dollars for two years interest on the within, úp to 26th May, 1843.”
    The defendants below insisted that the surplus of the several credits or indorsements on the note, over and above the legal interest, should be applied towards the payment of the principal of said note. But the Court ruled otherwise, and held that the sums thus paid and applied by the parties as usurious interest, could not be applied towards the discharge of the principal.
    
      John Woods, for Plaintiffs in Error.
    
      Lewis JD. Campbell, for Defendant.
   Birchard, C. J.

This case presents the single question whether interest greater than at the rate of six per cent, when voluntarily paid and applied by the agreement of parties as extra interest, can be recovered back, or set off against the principal debt. This question has often been made in this Court and has been decided in the negative as often as made; Shelton v. Gill, 11 Ohio Rep. 417, Ib. 498, 12 Ohio Rep. 544, 13 Ohio Rep. 115.

These repeated decisions have settled the law, and we consider the question at rest. There is no reason why the statutory penalty of five per cent, should not be allowed, and we therefore refuse to certify that there was probable cause for prosecuting this writ of error. Judgment affirmed, with statutory damages and costs.  