Omaha daily bee., 1883-05-28
UNITED STATES COURT.
An Important Decision Regard
ing Attorneys Fees,
The Sherman County Bond
Case and Other Matters.

The two cases of the American
Mortgage company of Scotland
(limited), VS.. James Downing, came up
for hearing before Justice Miller, of
the supreme court of the United
States, on motions to strike from the
DEGREES the amounts allowed by the
court as attorney fees.
The motions we're very fully argued
by Hon. @. j. Phelps, of Schuyler,
on behalf of Downing, and Judge
Hull and Hon. James M. Woolworth,
On behalf of the Mortgage company.
The objections urged by Mr.. Phelps
to the allowance of attorneys fees
wore that the contract was entered
Into since the repeal of the ~so.calleG
attorney fee law of Nebraska,
and that. the allowance of a slip.
ulated fee would first render the con.
tract usurious; second, destroy the
n%egotiability of the note; third, be
contrary to the decision of the su-
preme court of Nebraska In Dow VS..
Updyke. He also urged upon the
hearing that to allow attorney fees In
federal court was contrary to there.
ported decision of District Judge
Caldwell In Arkansas, In the case ..oi
the bank We. Sievers, which opinion
wss concurred In by Circuit Judge
McCrary.
The case was very thoroughly ar
gued, and Mr. Justice Miller In rem
dering the declsion remarked, that
upon full review of the authorities, he
Yves Satisfied that the repeal Of the
Nebraska statute left the question
as though no statute had ever been
passed and that upon principle and
authority It was clear that parties were
fully competent to make their own
contracts ard there was nothing In the
policy of the law which forbade them
to agree to pay costs and expenses, In
Guiding attorneys fees, which they
might cause the %loaner, of money, by
reason of their own default.
In no cane cited was q satisfactory
resson given why provision In 9
mortgage to pay attorney fees should
render the note non-negotiable and 1,
Was absurd to say that 1t would rende,
1t usurlous. Interest was allowed
for the loan or forbearance
of money, and 1t Is quite evident when
uuIt is begun to enforce the collection,
then forbearance ceases. The attor'
ney fee Ia provided, not for the use Of
money for q day, week, month OIL
year, or any other time, but Is an In
cident to reimburse the loaner In re-
covering his own.
In the course OF his opinion, Judge
Miller remarked that he was and al
ways had been q poor man, often q
borrower, never q ~losner; that hill
sympathies we're with the borrowing
class, but he believed that q CONTRACT
fairly and understandlngly entered
Into should be enforced, and that tn,
one by whose default the expense wa
incurred should pay the bill.
1t is q matter of much regret on th'
part of the bar that the decision o
Judge Miller was oral and not II
writing as 1t IL one of the most adj
and learned reviews of the entire sub
ject that has been announced, ant
Judge Dundy concurring thereil
makes 1t the decision of the circui
court of the United States for thi
district.
SHERMAN COUNTY BONDS.
The suit of Henry w. Simond
against Sherman county on bonds wa
decided Friday In the United State
court. Justice Miller delivered al
opinion In favor of Simonds. 1t wa
claimed that the bonds were illega
because the act under which the,
Issued was q special act and contra
venes both the constitutions Of 1856
and 1875. and also because the amour
Of bonds issued exceeded the limi
fixed by law, and the bonds were Is
sued without o vote of tho people
The amount of the judgment Is S.
671.60.