Page:Federal Reporter, 1st Series, Volume 7.djvu/821

 WILSON SBWINQ MACHINE CO. V. MOBENO. 809 �cipal and interest is the Bum due upon the note at maturity, and by the payment thereof it will be fully satisfied. And it is only in case of default in such payment and after the note is overdue, and has therefore losfrits charaeterof negotiabil- ity, that the penalty or attorney fee can be claimed or col- lected at all. In fact, the stipulation, although contained in the note, is, strictly and properly speaking, no part of it, but a distinct contract, collateral thereto, as muoh as if it was written on a separate piece of paper. The ruling that such stipulation makes the note usurious is founded upon the unauthorized assumption of fact that the sum agreed to be paid as an attorney fee in case the note is not paid at matu- rity is not what it purports to be, but illegal interest in tiie dis- guise thereof. Of course, where it appears that such is the real nature of the transaction it should be treated accordingly. But the fact cannot be assumed any more than that a like sum of the alleged principal is illegal interest in disguise. �Accordingly, the tendency of the decisions hostile to this stipulation is to leave these untenable grounds, and hold it void upon the ground that it is a convenient device for usury and tends to the oppression of the debtor. And it may be admitted that this suggestion is not without force, particu- larly in cases where the amount provided is largely in excess of what such collection could ordinarily be made for. But a court assumes to make the law rather than declare it, when it pronounces such a contract void ; not because it is prohibited or intrinsically wrong, but because it may be used as a cover for usury, and a means of oppressing the debtor. �An agreement by a debtor to pay a reasonable attorney fee in case his crediter is compelled to incur the expense of an action to collect the debt, is only an agreement to so far re-imburse the crediter the loss which he may sustain by reason of the debtor's failure to perform his contract tO pay his debt. In justice and fairness it stands on as high ground as the right to recover damages for the non-performanco of any contract ; as to deliver grain or goods at a certain time and place. �If A. loans B, $1,000 for the period of one year for the sum ��� �