Page:Federal Reporter, 1st Series, Volume 2.djvu/54

 BANE OF BBITISH H. AMESIOA V. ELLI3. 47 �reference to the infringements of the defendants, to discharge them from ail liability thereon. �As to the attomey fee, the de fendants claim that the prom- ise to pay one was only made by the makers of the notes, and that the subsequent parties thereto are under no such obligation to any one. �In the Wilson Sewing Machine Co. v. Moreno et al. (August 18, 1879,) this court held thàt a stipulation to pay a reason- able attorney fee to the holder of a promissory note, in case suit is brought to enforce the payment of the same, is just and valid, and that the negotiability of such note is not thereby affected or impaired. But the defendants herein claim that such a stipulation or contract is only the promise of the maker, and theref ore not that of the defendants ; and alsd that such stipulation, not being an integral part of the note, but a contract collateral thereto, is not negot iable, and therefore can only be enforeed as between the immediate par- ties to it, the maker and payee. �In Smith v. The Muncie National Bank, 29 Ind. 168, it was held that the accepter of a bill of exchange -which contained a stipulation for the payment of an attomey fee was bpund to pay the same. But this conclusion rests upon the factthat the accepter of a bill of exchange sustains the same relation thereto as does' the maker of a note. In Hubbard v. Harri- ton, 38 Ind., a stipulation in a promissory note to pay an attomey fee was entered in an action by theindorser against the payee, who was in fact an accommodation indorser, It was implied, rather than said, by the court, that the note, being negotiable, notwithstanding the stipulation, the latter passed with the former, and might be enforeed by the holder thereof against any party to the instrument. In 1 B'àri. Neg. Instr. § 62, it is said that the attomey fee need ndl'^be sûed for by the attomey, but may be recovered by the holder; and that the liability theref or, "as for every engagement imported by the bill or note, entered into the acceptor's and indorser's contract. �While there is a conflict in the authorities upon the ques- tion of wheth3r an instrument, otherwise negotiable, that con- ����