Page:Federal Reporter, 1st Series, Volume 7.djvu/820

 808 ,^ ,, FEDERAL REPORTER, �In Witherspoon v. Musselman, 8 Cent. L. J. 24, decided by the Kentucky court of appeals in 1878, according to the brief abstract in the Cent. L. J. supra, it was held that such a stipulation in a note was void beeause it tended to the op- pression of the debtor and the encouragement of litigation. �On the contrary, in Smith v. Silvers, 32 Ind. 321, it was held that a stipulation "whereby the debtor agrees to be lia- ble for reasonable attorneys' fees, in the event that his failure tp pay the debt shall compel the creditor to resort to legal proceedings to oollect his demand, is not only not usurious, but is so eminently just that there should be no hesitation in enforcing it." �., In Wyant v. Pottorf, 37 ind. 512, a stipulation in a note for a reasonable attomey fee was impliedly sustained, though it was held that there must be proof of what is a reasonable fee. �In Nickerson v. Shelden, 33 111. 372, it was held that a stipulation for an attomey fee did not affect the negotiability of the note, but the fee was not claimed in the action. �In Clawson v. Munson, 55 111. 394, a stipulation in a mort- gage to secure a note for an attorney fee to be paid as part of the costs of collection was held valid — the court citing Bunn V. Rogera, 43 111. 260, in which a similar stipulation in a mortgage was enforced, — and upon the question of hard- ship said that the defendants had expressly provided in the mortgage for the consequences in default of payment, which they might have avoided "by paying the notes at maturity." �In Gar v. Louisville Banking Co. 11 Bush, 189, it was held that a stipulation in a note for an attorney fee was not usu- rious, but an agreement to pay a penalty in default of prompt payment of the notes, and valid. �In Howenstein v. Barnes, 9 Cent. L. J. 48, decided by the United States circuit court for the district of Kansas, in 1879, it was held that a stipulation for an attorney fee is valid ; that it did not affect the negotiability of the paper. �The ruling that such a stipulation makea the amount pay- able upon the note uncertain, and it ia therefore non-negotia- able, is extremely technical and I think unsound. The prin- ��� �