The morning news. [volume] (Savannah, Ga.) 1887-1900, 1895-02-22
AN IMPORTANT RULING.
The Twitty Bin l. In DeroEation of
Common Law Rights.

D
Common Law Rights.
Judge A. II. MacDonem has handed
down an important ruling in the city
court. in which the law in the Twitty
bill Is construed. The suit is that of the
Homeseekers Mutual Loan Association
against Mrs. Jane Orr to collect loan
OF $i657i, and attorneys fees
The Twitty bin prohibits the collection
Of attorneys fees on notes or other
evidences Of Indebtedness and under this
bin demurrer to the suit was filed by
the defendants counsel on account Of the
fact attorneys fees were asked for. The
plaintiff IS represented by Messrs Gil
gnilliat e Stubs, and the defendant by
Messrs. McAlpin & LaRoche.
The court overrules the demurrer to
The suit and allows It to go to trial on
its merits. The points ruled on by Judge
MaeDonell will be of interest to attor-
neys throughout the state and the fact
that these questions have never yet been
passed on by the supreme court will give
It additional interest, as that court may
he called upon to pass on the case with
the facts that have been presented to the
judge Of the city court Judge Mac
Donells ruling is as follows:
The demurrer I'm this case Is predicated
upon the act Of July p. 1891, which pro-
vides that: IAN obligations to pay attor-
neys fees upon any note or other evil
dences Of Indebtedness, in addition to the
rate Of interest specified therein, is here
by declared to be absolutely void, and. no
court shall have power to enforce such
contract and agreement to pay such at
torneys fees, unless a plea or pleas be
filed by the defendant and not sustained"
This statute is in derogation Of the COM
mon law right of an persons sui juris to
enter into any private contract not i'm
moral. Illegal or contrary to public pol
icy. Obligations to pay attorneys fees
upon such instruments have always been
upheld and enforced by law in Georgia
previous to the passage Of this act The
statute encroaches upon a personal right
Of the citizen, long settled. long enjoyed
and heretofore unquestioned, and acord-
ing to the wen established rule It must
be strictly construed. It being presumed
that the legislature does not lightly de-
sire to encroach upon the rights of per-
sons. II is expected that if such be its in
tention, it will manifest it plainly, if not
in express words, at least by clear impli-
cation and beyond reasonable doubt, and
where an equivOcal word or ambiguous
sentence leaves a reasonable doubt OF
its meaning. which the canons of inter.
probation fail to solve the doubt should
be given to the subject and against the
legislature which failed to explain itself
Endlich, Secs. 339, $40.
The act is directed against obligations
to pay attorneys fees upon amy note or
other evidences of Indebtedness in addi-
ton to the rate of interest specified there
in" Strictly construed, Il has no applica-
ton to such instruments when no rate of
interest in specified therein 1t appears
from the declaration in this case that
MA fr,ff Tr4s.,, ,f,4s
loan association, pure and simple like the
one involved in Parller's case, 18th Ca
l66, and that the so-called interest speci-
lied in the bond and deed, upon which suit
was brought, was in reality not interest
II is not money charged for forebearance
Ii is merely convenient mode of paying
the principal by installments, from which
mode the person paying derives a bene-
it, in that every such payment brings
the mutual association nearer to a wind
ing up; and, as Parker's case. above cited
holds, it is not usury-which it must be if
the payments are to be considered as in
terest.
The obligation to pay attorneys fees is
not stipulated in the bond, but is inserted
in the deed to secure the bond, to be in
cluded in the Judgment upon the bond
as part of the same Whether the bond
and deed, as to this obligation be con
strued, together as one instrument or not
IL
for no other interest is stipulated therein
to be paid except the improperly so-called
interest above mentioned. The act there
fore, has no application to it and the de-
murrer does not hold.
Again. the obligation to pay attorneys
fees in this case is contained in a deed OF
certain realty to secure the loan or ad-
vance (as under sec. 1870 ct seq. of the
code), and is for attorneys fees Incurred
by said association in enforcing its rights
as vendee hereunder" The question
arises whether the act applies to such
obligations in deeds to secure debts
Neither deeds to secure debts nor mort
cages are expressly mentioned in the act
Are they included in the words ANY note
or other evidences of Indebtedness" The
meaning of words is to be ascertained
by the company they keep. Noscuntur a
sociis is a well established rule of con
struction. Thus the Sunday act, % car ,
C. Z, which enacts that no tradesman
artifcer laborer, or other person what
soever, shall do or exercise any labor
business or work of their ordinary call
mss upon the Lords day" has been held
not to include coach proprietor or =
farmer or an attorney, the words per
son" being confined to those of caIlings
like those specified by the preceding
words. (Endiich sec. 405) In like manner
also was construed sec. 1851 of the code
of Georgia, which provides that; Every
person shall be liable for the torts commit
ted by his Wife and for forts committed
by his child, or servant by his command
or in the prosecution and within the scope
Of his business whether the same be bv
negligence or voluntary" 1t is quite evil
dent" says Justice Hall, In Lockett vs.
Plttman, e Ga. SIT, that the association
of servant with wife and child in this
section of the code could have referred
to no other than a domestic servant.