Page:Federal Reporter, 1st Series, Volume 7.djvu/819

 WILSON SBWING MACHINE CO. V. MOBBNO. 807 �and merchaii^ise sold and delivered to him by the plaintiff; and it is agreed that the amount due the plaintiff on such aceonnt is on promissory notes $741.74, and upon an open aecount $629.70; in all, the sum of $1,371.44. Each bond contains a stipulation to the effect that in case suit is brought upon the same the obligors therein will pay, in addition to the penalty thereof, the sum of $100 "for attorney's fees." The plaintiff now moves for judgment upon the complaint for the amount admitted to be due, aud for $100 in eaoh action as an attorney's fee therein. �This latter part of the motion the defendant resists upon the ground that the provision in the bond for the payment of such fee, in addition to the penalty thereof, is void. It appears from the books that the question raised upon this motion is comparatively a new and vexed one. It bas mostly arisen in actions upon promissory notes containing a stipu- lation for the payment of a fixed sum or percentage as an attorney fee to the plaintiff, in case an action is brought to collect the same. And the objection to the stipulation usu- ally is that the amount which may be collected upon the note being thereby rendered uncertain, it is unnegotiable, and not valid as against an indorser, or that such stipulation makes it usurious, and therefore void in whole or in part. But in Bome few instances the courts have gone further, and held that such a stipulation is absolutely void as contrary to the policy of the law, and tending to the oppression of the debtor. �In Bullock V. Taylor, 7 Cent. L. J. 217, decided by the supreme court of Michigan in 1878, a stipulation in a note for the payment of a certain sum as an attorney fee over and above all taxable costs, in case the same was sued upon, was held void as opposed to the policy of the law upon the sub- ject of attorney fees, and susceptible of being made the instru- ment of oppression. �In Woods V. North, 84 Pa. St. 409, it was held that a similar stipulation in a note rendered the instrument non- negotiable, and thereby relieved the indorser from iiability thereon. ��� �