The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1877-03-21

kupreme Court.
THE supreme court are now citing the 1915
revision OF the statutes. complete In two vol
sale by the Sentinel company al " per vol
ume.l
No. 4,s7f. Francis NJ. Churchman vs. Luz
Their K. Martin. From the Marion civil cir
cult court. Worden, c. j.
Action by the appellant against the APP
pelIee upon FIVE several promissory notes
executes by the defendant TO the plaintiff.
The notes were all dated March Is. 1875, az
Indianapolis, Indiana, and each was for the
payment of the sum of $13S, one day after
date, and all except the third bore interest
at the rate of 10 per cent per annum from
date
The note frstSounted upon contained the
following clause "And 10 per cent. attor-
neys' fees If suit be instituted on this note "
The second note was payable ''in the gold
coin of the United States, and il was there
in stipulated that IF this note is paid at
maturity or before suit is brought thereon
then it shall be payable in any Lawful! money
OF the United States"
The third note contained the following
clauses: And five per cent attorneys
fees" with six per cent. interest from
date. and IL not paid at maturity, 10 per
cent. interest from date until paid"
The fourth stipulated for the payment OF
five per cent expenses OF collection other
than attorneys fees il suit be instituted on
this note"
The fifth and last note contained clause
STIMULATING to pay 1--WE per cent. for eX-
change and other expenses incident to the
collection thereof other than attorneys fees,
IL suit be instituted on this note"
On issue Joined there was trial by the
court. resulting in finding and judgment
for the plaintiff. But the court refused
to allow the plaintiff the 10 per cent for at
torney's fees as stipulated for in the first
note. The court also refused to render judg-
ment that the amount due on the second
note be collected in gold coin. The court
furthermore refused to allow the per cent
for expenses OF collection and exchange,
stipulated for in the fourth and fifth notes
Appellant has duly preserved the questions
arising upon these rulings.
The court allowed the five per cent. attor-
ney's fees and interest stipulated for in
the third note; and the appellee has pre-
served. and by cross error has here raised
the question arising upon this ruling.
By an act approved March 10. 1875, X. y
1876. d. 40, ii was provided THAT any and
all agreements to pay attorney fees depend
ing upon any condition therein set forth,
and made part of any bill of exchange, &C.
ceptance, draft, pronissory note or other
written evidence of Indebtedness, are here by
declared illegal and void; provided, that
nothing in this section shall be construed as
applying to contracts made previous
to the taking effect of this. act" The
act took effect from and after its passage,
and was therefore. IN force when the note 5
In suit were executed. Tue agreement in
the first note to pay attorneys fees, is clear
ly within the terms of the statute, for it is
made upon the condition set forth in the
note, that suit be instituted on the note.
But it is claimed by the appellant that the
act is unconstitutional and void. We are
not aware of any provision either in the fed
L. e. IL ka1 kxr
the act in question. IL is true the federal
constitution provides that no state shall pass
any law impsiring the obligation of con-
tracts. But q law prohibiting the making of
certain contracts is very different thing
from law impairing the obligation of con-
tracts A contract made in violation of law
has no obligatory force whatever. 1t is said
in I'd Story on Constitution. section 1880,
Cooleys edition, in speaking of the provis-
ion above mentioned, 1T is the civil obliga-
ton of contracts which it Is designed to
reach; that is the obligation which is recog-
mixed by and results from the law of the
state IN which it is made. If, therefore,
acontract, when made, Is by the Law
of the place, declared to be IL
legal, or deemed to be nullity
or a nude pact, it has no civil obligation, be-
cause the law in such cases forbids il having
any binding efficacy or force"
BY the constitution of the state the legis-
latiye authority is vested IN the general as
sembly. (Const, art. 4, section ID When,
therefore, an act of the general assembly is
passed which violates no provision of the
federal or state constitution, the judicial de-
partment can not hold it to be void on the
ground that il is wrong or uni ust, or violates
the spirit of our institutions, or impairs nat
ural rights. Upon this point we refer to an
extract from the opinion of the supreme
court of Pennsylvania. contained in the case
of yelling VS.. Merrill. (52 Ind. 350-353.
We think the court below committed no er-
ror in its ruling ia respect to the first ncte.
The second note, as has been stated. was
payable in gold coin of the United States,
with q subsequent provision that ii paid at
maturity, or before suit was brought ii
should be payable in any lawfal money OF
the United States. And on this note the
be rendered payable in gold coin oil
the United States, but this was re-
fused. It is now settled by the supreme
court of the United States, that the legal
tender act applies only 70 debts payable in
money generally, and not to debts payable
in coin. 1t is also held by the same court
that under the constitution and laws of the
United States the holder of a note payable
in coin specie is entitled to judgment
for its payment in accordance with the
terms of the note. And il is further held
by the same court that where a state cour
refuses to render the proper judgment IN
such cases the supreme court of the United
States has jurisdiction on writ of error TO thu
state court (fribilcock vs.. Wilson. II Wall.
6S7; Bronson vs. Rodes. Wall, 229; Butlel
vs. Howitz, Id. 258. See also Phillips VS.
Dugsn. 21 Ohio, s. 466; Chriser VS.. Renois
43 ". Y, 209; Stark Coffin, l05 Mass.
1884; Currier VS.. Davis. III Mass, $50
NcCally Va. Ely. ga Penn. 254
The question involved being one which
arises under the constitution and laws o
the United States we are bound by the de
cisions Of the supreme court upon It; ant
10 q Judgment for the collection OF tn
amount due upon this note in gold coin O