going on. We think this excuse, even if true, is insufficient in law, as a marriage cannot be taken to have been duly celebrated if any of the essential ceremonies were not duly observed, even though such omission was unavoidable." It was contended by Dr. Phillimore that the presumption of marriage arising from cohabitation with habit and repute did not apply to the case of the Tamils and to Ceylon; but it appears from the authorities, that according to the Roman-Dutch law, there was a presumption in favor of marriage rather than of concubinage. It does not therefore appear to their lordships that the law of Ceylon is different from that which prevails in this country, namely, that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage. Dr. Phillimore did contend that in a district where concubinage was not considered as immoral the same presumption would not arise; but their lordships cannot agree with him in that aespect. It is evident that in the district in which Pattenier lived wives are treated differently from concubines, and it is not because a number of persons live in a state of concubinage to be presumed that a man and woman who are living together as reputed husband and wife are not lawfully married. It is evident from the parties going through the form of marriage that they intended to be married, and if they were not married according to the strict custom, it was not in consequence of their wish that it should be so. It appears clearly that they did consider that a valid marriage had taken place. In the case of Piers v. Piers, 2 H. L. C. 331, it was laid down by the House of Lords that the presumption of marriage arising from cohabitation with habit and repute can only be rebutted by the clearest and most satisfactory evidence. Lord Cottenham, L. C., said: "I have not found that the rule of law is any where laid down more to my satisfaction than it is by Lord Lyndhurst in the case of Morris v. Davies, 5 Cl. & F. 163, as determined in this House. It is not precisely the same presumption as exists in the present case; but the principle is strictly applicable to the presumption which we are considering. He says: "The presumption of law is not lightly to be repelled. It is not to be broken in upon or shaken by a mere balance of probability. The evidence for the purpose of repelling it must be strong, distinct, satisfactory and conclusive.' No doubt every case must vary as to how far the evidence may be considered as satisfactory and conclusive; but he lays down this rule, that the presumption must prevail unless it is most satisfactorily repelled by the evidence in the cause appearing conclusive to those who have to decide upon that question." In De Thoren v. Attorney-General, 1 App. Cas. 686, Lord Cairns, L. C., stated that the presumption of marriage is much stronger than the presumption raised with regard to other facts; and he referred to the Breadalbane case, L. R., 2 H. L. Sc. 269, in which it was held that the presumption was one which not only might, but ought to be drawn from cohabitation with habit and repute, although the cohabitation commenced with a ceremony which was not only invalid by reason of the real husband of the woman being alive at the time, but was known by both parties to be invalid. Their lordships having come to the conclusion that Pattenier and the second plaintiff lived together as man and wife, and that Pattenier held her out as his wife, the presumption of the marriage is not lightly to be rebutted. The chief justice did not find that the presumption was rebutted, but he threw the onus of proving a legal marriage according to the custom of the Tamils upon the other side. Their lordships think that the learned chief justice was in error in overruling the decision of the judge in the First Court, who had come to the conclusion upon the evidence that there

EQUITABLE ACTION-DEMURRER FRAUD ESTOPPEL.—(1) A bill is demurrable because too indefinite, wherein it is alleged that the decree which is sought to be set aside was obtained either by the mistake of all parties, or by deception practiced upon the complainant, or by the collusion of the respondent with third parties. Cases referred to: Moss v. Riddle, 5 Cranch, 351; Gray v. Earl, 13 Iowa, 188. (2) Where an injunction is asked for, in the first instance, upon the ground of fraud, the facts constituting the fraud must be made to appear by positive averments, based upon the knowledge of the complainant, or that of some one else who is personally cognizant of them. Allegations based upon information and belief only are insufficient. (3) One is estopped from raising any question which might have been determined in a former suit between the same parties and upon the same subjectmatter, provided he was not prevented from raising it in such former suit by the wrongful act of the other party. Cases cited: United States v. Throckmorton, 98 U. S. 65; Pearce v. Olney, 20 Conn. 544; Wierich v. De Zoya, Ill. 385; Kent v. Ricards, 3 Md. Ch. 392; Smith v. Lowry, 1 Johns. Ch. 320; De Louis v. Meek, 2 Gr. 55; Greene v. Greene, 2 Gray, 361; Dixon v. Graham, 16 Iowa, 310; Cottle v. Cole, 20 id. 482; Borland v. Thorton, 12 Cal. 440; Railroad Co. v. Neal, 1 Wood, 353. U. S. Circ. Ct., Iowa, March, 1881. Brooks v. O'Hara. Opinion by McCrary, C. J.

EQUITABLE ACTION - TO RESTRAIN TAXATION OF CORPORATION. He who comes into equity must do so with clean hands. Accordingly where a stockholder on behalf of himself and all others who should come in and contribute to the expense of the suit, brought a bill in equity against the corporation and the tax collector of a particular county, to enjoin the collection of a State and county tax as being illegal and unconstitutional, and as such utterly void, it was held, that as the bill did not allege payment of so much of the taxes as must be conceded ought to be assessed and paid, it was demurrable. An averment in the bill of a readiness to make such payment is not enough. State Railroad Tax cases, 92 U. S. 575; Starr v. Stark, 2 Sawy. 639, and 94 U. S. 488. U.S. Circ. Ct., California, May, 1881. Huntington v. Palmer. Opinion by Sawyer, C. J.

--

FOR

EVIDENCE DISQUALIFICATION OF WITNESS INTEREST NO LONGER EXISTS. — All disqualifications on the ground of interest in the event of the suit are abolished by section 858 of the Revised Statutes, except only where an executor, administrator or guardian is a party for or against whom judgment may be rendered, and it is sought to prove by one of the parties some transaction with or statement by the testator, intestate or ward. Potter v. Bank, 26 Int. Rev. Rec. 403. See, also, Lucas v. Brooks, 18 Wall. 453; Packet Co. v. Clough, 20 id. 528; Insurance Co. v. Schaefer, 94 U. S. 457. U. S. Circ. Ct., Nevada, August 15, 1881. Rice v. Martin. Opinions by Hillyer, D. J., and Sawyer, C. J.

executors or administrators, is insufficient to pay all the debts due from the deceased, the debts of the United States shall be first satisfied; and the priority hereby established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is eommitted." Held, that this statute does not give the United States a lien upon its debtor's property, but only a right to priority of payment out of the same. By the statute this priority only takes effect in four classes of cases: (1) The death of a debtor without sufficient assets to pay his debts; (2) bankruptcy or insolvency manifested by some act pursuant to law; (3) a voluntary assignment by an insolvent debtor of all his property to pay his debts; (4) the attachment of the property of an absent, concealed or absconding debtor. United States v. Fisher, 2 Cranch, 358; Conard v. Atlantic Ins. Co., 1 Pet. 438; Beaston v. F. B. of D., 12 id. 133; United States v. McLellan, 3 Sumu. 350; United States v. Canal Bank, 3 Story, 81; 1 Kent. Com. 247; Conk. Treat. 722. Mere inability to pay, or a sale or a mortgage of a part of the debtor's property, is not sufficient to set the statute in motion; but the insolvency, if not established by legal proceedings resulting in the appointment of an official assignee, must be accompanied by a voluntary assignment of substantially all the debtor's property. So long as it remains in his own hands, any partial sale, transfer or pledge of it does not bring the case within this statute. U. S. Circ. Ct., Oregon, August 12, 1881. United States v. Griswold. Opinion by Deady, D. J.

CALIFORNIA SUPREME COURT ABSTRACT.

FILING OF BILL DOES NOT STOP STAT

As

LIMITATIONSUTE AS TO ONE NOT PARTY. - The filing of a complaint does not stop the running of the statute of limitations as to those who are not made parties, so as to preclude a defense by them to a supplemental complaint, in which they were made parties, filed after the statute had run upon the cause of action. The filing of the original complaint stopped the running of the statute of limitations only as to him who was the party defendant at the time it was filed; it did not stop the running of the statute in favor of those who were not made defendants in the action at that time; the statute continued to run in their favor. Shaw v. Cock, 78 N. Y. 194; Atkinson v. A. & S. Co., 53 Cal. 102. to them, no action was commenced until the filing of the supplemental complaint in which they were named as defendants. Lawrence v. Ballou, 50 Cal. 258; Anderson v. Mayers, id. 525. The supplemental complaint was a continuance of the original action as against the original defendant; but it was the commencement of a new action as to them. Until they were made parties to the bill the action cannot be considered as having been commenced against them. Angell on Lim., § 330. "It would be a novel and unjust principle," say the Supreme Court of the United States, "to make the defendants responsible for a proceeding of which they had no notice, and where a final decree in the case could not have prejudiced their rights." Miller v. McIntyre, 6 Pet. 61; Sicard v. Davis, id. 124; Holmes v. Trout, 7 id. 171. Their rights then must be determined as they existed at the time of filing the supplemental complaint. Jeffers v. Cook. Opinion by McKee, J.

[Decided Aug. 23, 1881.]

DAMAGES- -FOR WRONGFUL REMOVAL OF FIXTURE. -In an action for the removal of a vault by defendants from plaintiffs premises, the court found that the

vault at the time of its removal was a fixture, and part of the realty, and was the property of plaintiffs; that defendants had no legal right to remove it; and that its value, to be sold in open market, was at the time of its removal not over five hundred dollars; and thereupon the court rendered judgment for that amount. Held, error. In such case the measure of damages is the value of the article as it was in place as a part of the realty immediately preceding its removal, not what it would sell for in open market removed from the building. Whitbeck v. N. Y. Cent. R. Co., 36 Barb. 644. Rhoda v. Alameda County. Opinion by the court.

[Decided Sept. 2, 1881.]

EQUITABLE ACTION TO REFORM DEED FOR MISTAKE. Of the jurisdiction of a court of equity to reform a mortgage, deed or other instrument of writing, on the ground of mistake, there can be at this day no question. Quivey v. Baker, 37 Cal. 465. But to authorize the exercise of such jurisdiction there must have been a mutual mistake as to the contents of the instrument to be reformed, or else mistake on one part and fraud upon the other. Whittemore v. Farrington, 76 N. Y. 452; Paine v. Jones, 75 id. 593; and Bryce v. Lorrillard, 55 id. 240. In the case at bar the plaintiff claimed that it was the mutual intention of the parties to the instrument that there should be included in a mortgage a certain parcel of land which was by mistake omitted. Held, that the explanation of the omission should be reasonable and probable, so that the mind of the court shall be brought into as complete a condition of certainty as is possible in any judicial investigation. Pomeroy on Spec. Perf. 322. In the language of the Chaucery Court of New Jersey: "The proof of mistake must be clear and satisfactory, such as produces a strong conviction of its truth. The courts will not change what is written, upon loose, doubtful or equivocal evidence." Hendrickson v. Wallace, 31 N. J. Eq. 604; Beardsley v. Knight, 10 Vt. 185; Canedy v. Marcy. 13 Gray, 373; Kennard v. George, 44 N. H. 440; Youell v. Allen, 18 Mich. 109. De Jarnatt v. Cooper. Opinion by McKee, J. [Decided Aug. 25, 1881.]

KANSAS SUPREME COURT ABSTRACT. JANUARY TERM, 1881.*

CHATTEL MORTGAGE-SALE UNDER WARRANTY OF TITLE NOTICE OF SALE. (1) Where a mortgagee of personal property sells the property, not as his own, but as held by him as a mortgagee, he does not warrant the title. The rule of caveat emptor applies to all persons desiring to purchase under such circumstances; and the purchaser under such circumstances obtains only the interest of the mortgagor and mortgagee in the property. A purchaser of goods and chattels may have satisfaction from the seller if he sells them as his own and the title proves deficient, without any express warranty for that purpose. 2 Bl. Com. 451. If the seller is in possession but the possession is of such a kind as not to denote or imply title in him, there would be no warranty of title in England, and we are confident there would be none in this country. 1 Pars. on Cont. 575. The sale by the pledgee or mort gagee of a chattel, as such, purports to transfer only the peculiar title of a pawn-broker, pledgee or mortgagee; and the circumstances must repel any inference that a warranty of title as owner is intended though the title thus originating may have ripened into a good one; and in the absence of express warranty of title, or fraudulent conduct, the transaction will be taken accordingly." 2 Schoul. Per. Prop. 338. The same doctrine is also announced in Sheppard v. Earles, 13 *To appear in 25 Kansas Reports.

Hun, 651, in the following language: Upon a sale of property by virtue of a chattel mortgage, the proceeding is notice to the public that the mortgagee is selling, not his own title to the property, but that which he has acquired through the mortgage, and no warranty of title to the property so sold is to be implied against the mortgagee." In Morley v. Attenborough, 3 Exch. 500, it is decided that "there is no implied warranty of title in the contract of sale of a personal chattel; and in the absence of fraud, a vendor is not liable for a defect of title, unless there be an express warranty, or an equivalent to it, by declaration or conduct.” "A pawnbroker, who sells a chattel as a forfeited pledge, merely undertakes that the subject of the sale is a pledge, and irredeemable, and that he is not cognizant of any defect of title to it." (2) A mortgagee of personal property may sell his own and the mortgagor's interest in the property, with the consent of the mortgagor, without giving public notice of the sale. And where the mortgage contains a provision that the mortgagee may sell the property after condition broken, or if at any time he should deem himself unsafe, he may sell the property at public or private sale previous to the time above mentioned. Held, that no notice is required, and that a sale without notice will transfer to the purchaser all the interest, both of the mortgagor aud mortgagee, in the property. In Ballon v. Cunningham, 60 Barb. 425, it was held that where a chattel mortgage contained a power to the mortgagee, in case of default in payment, to take possession of the property and sell the same, and after deducting all expenses to apply the proceeds in payment of the debt, aud in case he should at any time deem himself unsafe, that he might take possession of the property and sell the same at public or private sale before the day of payment, held, that on default in payment at the day, the mortgagee might sell the property at private sale, without notice to the mortgagor; and that if the sale was fair and bona fide, the right of the mortgagor to redeem was foreclosed. See, also, Chamberlain v. Martiu, 43 Barb. 607, which decides the same question in the same way. Harris v. Lynn. Opinion by Valentine, J.

CONFLICT OF LAW - RESTRAINING SUIT IN COURT OF ANOTHER STATE. A court of equity may restrain a defendant who is within its jurisdiction and subject to its process, from prosecuting any action or proceeding either in the courts of this or of a foreign State. But no such restraining order will be made simply because the litigation is in a foreign State, or to enforce a mere legal right, even though such right be granted by the statutes of this State, but only when there is a manifest equity which compels such restraining order. A. and B. were residents of Kansas. A. owed B. a just debt. He went into Missouri, taking certain personal property with him. This property was exempt by the laws of Kansas. B. commenced an action in Missouri by attachment before a justice of the peace, seizing this property. Held, that upon the mere showing that the particular property seized was exempt, and without any showing as to A.'s liability to pay, or his possession of none save exempt property, or as to whether the debt was fraudulently contracted or not, or as to any fraudulent disposition of property since the contraction of the debt, a court of equity in Kansas will not restrain the prosecution of said action in Missouri. The Supreme Court of Massachusetts, in Dehon v. Foster, 4 Allen, 545, considered the subject in all its bearings, and declared the doctrine to be clear and indisputable that a court of chancery, upon a proper case being made, has authority to restrain persons within its jurisdiction from prosecuting suits, either in courts of its own State or of other States or foreign countries. This jurisdiction, it affirmed, is not founded upon any right to interfere with or control the pro

ceedings of other tribunals in other States, but on the clear authority vested in courts of equity over persons within their jurisdiction, and amenable to process to restrain them from doing acts which will work wrong and injury to others, and are contrary to equity and good conscience. The attaching creditors in that case were held liable to be restrained by injunction. The exercise of this jurisdiction is sanctioned by English precedents. Mackintosh v. Ogilvie, 4 T. R. 193; 3 Swanst. 365. See, also, Snook v. Snetzer, 25 Ohio St. 516; Engel v. Scheuerman, 40 Ga. 206; Vail v. Knapp, 49 Barb. 299; Briggs v. French, 1 Sumner, 504; Massie v. Watts, 6 Cranch, 148; Keyser v. Rice, 47 Md. 203; Field v. Holbrook, 3 Abb. Pr. 377; Rorer Inter-St. Law, p. 42 v; 2 Story's Eq. Jur., $$ 899, 900; Hilliard on Inj. 234. Cole v. Young. Opinion by Brewer, J.

CORPORATION -RAILROAD COMPANY- CONSOLIDATION DOES NOT RELEASE SUBSCRIBER FOR STOCK. - The mere consolidation of oue railroad company with another company, under a statute authorizing the consolidation of such companies, will not discharge or release a non-assenting subscriber for stock in one of the companies. Nugent v. Supervisors, 19 Wall. 249; Cork & Youghal Railway Co. v. Patterson, 37 Eng. L. and Eq. 398; Nixon v. Brownlow, 3 H. & N. 686; Sparrow v. Railroad Co., 7 Porter (Ind.) 369; Bish v. Johnson, 21 Ind. 299; Hanna v. Cincinnati & Ft. Wayne R. Co., 30 id. 30. Atchison, Colorado & Pacific Railroad Co. v. Commissioners of Phillips County. Opinion by Horton, C. J.

PENNSYLVANIA SUPREME COURT AB

PARTY

ON.

STRACT.

WHEN STRANGER TO CONTRACT MAY SUE

- It is true as a general rule that an action on a contract must be in the name of the party holding the legal interest therein. Yet this is not invariably so. In many cases a third person may maintain an action on a promise made to another. Hence if one deliver money or personal property to another under the promise of the latter to deliver it over to a third person who has a beneficial interest therein, or to convert it into money and pay him the proceeds, the third person can maintain an action therefor against the promisor. Hind v. Holdship, 2 Watts, 104; Beers v. Robinson, 9 Barr, 229; Vincent v. Watson, 6 Harris, 96; Bellas v. Fagely, 7 id. 273; Torrens v. Campbell, 24 P. F. Smith, 471; Townsend v. Long, 27 id. 143; Kountz v. Holthouse, 4 Norris, 235; Justice v. Tallman, 5 id. 147. Accordingly when a firm purchased the business and property of another firm, agreeing as a part of the bargain of purchase to pay certain debts of the selling firm, held, that a creditor of the latter firm to whom one of the debts mentioned was due could maintain an action against the purchasing firm therefor. Wynn v. Wood. Opinion by Mercur, J. [Decided May 2, 1881.]

SET-OFF- -ATTORNEY MAY NOT SET OFF MONEY COLLECTED FOR CLIENT AGAINST ANTECEDENT CLAIM.

An attorney at law or in fact, employed to collect a claim, when he has received or recovered the money has no right to set off an antecedent debt or claim in his own right against his constituent. He ought to show in such case that his constituent expressly agreed that he might retain his demand out of the money. Simpson v. Pinkerton. Opinion by the court. [Decided March 7, 1881.]

value. Where a person fairly and in good faith sells property or loans money to a lunatic who appears to be sane and is not known by the vendor or lender to be insane, and who has not been found to be a lunatic by judicial proceedings, and the lunatic receives and uses the same, whereby the contract becomes so far executed that the parties cannot be placed in statu quo, such a contract cannot afterward be set aside, or payment refused by the lunatic or his representatives. La Rue v. Gilkyson, 4 Barr, 375; Beals v. See, 10 id. 56; Lancaster County Bank v. Moore, 28 P. F. S. 407; Wilder v. Weakley, 34 Ind. 181; Elliott v. Ince, 7 DeG. M. & G. 475, 487. In Elliott v. Ince it is remarked that "the result of the authorities seems to be that dealings of sale and purchase by a person apparently sane, though subsequently found to be insane, will not be set aside against those who have dealt with him on the faith of his being a person of competent understanding." There can be no binding executory agreement where one of the parties is bereft of reason; a capacity to contract is absolutely necessary. In Moon V. Hespey, 9 Norr. 196, the action was by an indorsee against the maker of a promissory note, and evidence was offered to prove that the maker had received no consideration for the note, which fact the plaintiff had admitted in conversation, proof having been made that the maker was insane, but the offer was rejected, the court below ruling that as the note in suit was commercial paper and the plaintiff a holder for value, the consideration could not be inquired into. This was held to be error. Paxson, J., said: "We place our ruling upon the broad ground that the principle of commercial law above referred to does not apply to commercial paper made by madmen. ** * * * The true rule applicable to such cases is, that while the purchaser of a promissory note is not bound to inquire into its consideration, he is affected by the status of the maker, as in the case of a married woman or a minor. In neither of these cases can he recover against the maker. In the case of a lunatic, however, he may recover provided he had no knowledge of the lunacy, and the note was obtained without fraud, and upon a proper consideration." "There must be a limit to the civil responsibility of persons of unsound mind, otherwise their property would be at the mercy of unscrupulous and designing men." If the holder could recover against one who was insane when he indorsed or made the note without consideration therefor, no wider door could be opened for the swindler to despoil such helpless persons of their estates. An infant who makes or indorses a note may by his representative plead his infancy as a complete defense. In like manner a lunatic may pleal insanity and want of consideration. The holder of a madman's note stands in no better position than the payee. An accommodation maker or indorser in fact is a surety for the principal debtor, and when he is an infant or an insane person, he or his representative may defend as in other forms of contract, Pennsylvania Sup. Ct., May 2, 1881. Wirebach's Executor v. Bank of Easton. Opinion by Trunkey, J.

NATIONAL BANK-TAXATION OF SHARES. (1) In the taxation of the shares of a National bank, the shareholders are not entitled to any allowance for such of the capital and surplus of the bank as may be invested in government bonds. Van Allen v. Assessors, 3 Wall. 573; People v. Commissioners, 4 id. 244. (2) In the taxation of the shares of a National bank it must appear that the assessors acted under some agreement or rule which necessarily tended to tax such shares at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State, in order to render their assessment void under section 5219 of the Revised Statutes. People v. Weaver, 100 U. S. 539; Pelton v. National Bank, 101 id. 143; Cum

mings v. National Bank, 101 id. 153. U. S. Circ. Ct., Illinois, May 24, 1881. First National Bank of Chicago v. Farwell. Opinion by Drummond, C. J. (7 Fed. Rep. 518.)

SURETY

MARRIED WOMAN ESTOPPEL.

LIABILITY OF STOCKHOLDERS NOT THAT OF - (1) The liability which shareholders in National banks incur under section 12 of the act of 1864, which provides for a liability "to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares," is that of principals, not of sureties. Such a liability is not one on a "promise to pay the debt, or answer for the default or liability of any other person," within the meaning of the proviso of a New Jersey statute, which renders a married woman incapable of binding herself by such a promise. (2) On the principle of estoppel, one cannot take advantage of certain statutory provisions without incurring thereby the attendant liabilities. This applies to a married woman becoming a shareholder in a National bank. Mathewman's case, L. R., 3 Eq. Cas. 781; In re Reciprocity Bank, 22 N. Y. 9; National Bk. v. Case, 99 U. S. 628. U. S. Circ. Ct., S. D. New York, June 30, 1881. Hobart v. Johnson. Opinion by Blatchford, C. J. (8 Fed. Rep. 493.)

NEGOTIABLE PAPER-STIPULATION AS TO ATTORNEY'S FEE.- - A stipulation to pay a reasonable attorney fee to the plaintiff in case a promissory note or other contract is not performed according to its terms, and the party entitled to demand such performance is compelled to enforce it by law, is just and valid. In Bullock v. Taylor, 7 Cent. L. J. 217, the Supreme Court of Michigan decided that a stipulation in a note for an attorney's fee, over and above all taxable costs, in case the same was sued, was void as against the policy of the law and oppressive. In Woods v. North, 84 Penn. St. 409, a stipulation for an attorney's fee was held to make a note non-negotiable and to relieve an indorser from liability thereon. In Witherspoon v. Musselman, 8 Cent. L. J. 24, the Kentucky Court of Appeals held that such a stipulation in a note was void because it tended to the oppression 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 liable for reasonable attorney's fees, in the event that his failure to pay the debt shall compel the creditor to resort to legal proceedings to collect 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 attorney fee was impliedly sustained, though it was held that there must be proof of what is a reasonable fee. In Nickerson v. Sheldon, 33 Ill. 372, it was held that a stipulation for an attorney fee did not affect the negotiability of the note, but the fee was not claimed in the action. In Clawson v. Munson, 55 Ill. 394, a stipulation in a mortgage to secure a note for an attorney fee to be paid as part of the costs of collection was held valid the court citing Duun v. Rogers, 43 Ill. 260, in which a similar stipulation in a mortgage was enforced and upon the question of hardship 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 Gaar v. Louisville Banking Co., 11 Bush, 189, it was held that a stipulation in a note for an attorney fee was not usurious, 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, the United States Circuit Court for Kansas, held that a stipulation for an attorney fee is valid; that it did not affect the negotiability of the paper. U. S. Circ. Ct., Oregon, August, 1879. Wilson Sewing Macrine Co. v. Moreno. Opinion by Deady, J. (7 Fed. Rep. 806.)