Opinion of the Court-Deady, J. 1879.] by the Kentucky court of appeals in 1878, according to the brief abstract in the C. L. J., supra, it was 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 attorneys' 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's fee was impliedly sustained, though it was held that there must be proof of what is a reasonable fee. In Nickerson v. Shelden, 33 Ill. 372, it was held, that a stipulation for any attorney's fee did not affect the negotiability of the note, but the fee was not claimed in the action. In Clawson v. Munson et al., 55 Ill. 394, a stipulation in a mortgage to secure a note for an attorney's fee to be paid as part of the costs of collection, was held valid-the court citing Dunn v. Rogers, 43 Id. 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 Gar v. Louisville Banking Co., 11 Bush, 189, it was held, that a stipulation in a note for an attorney's 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, decided by the United States circuit court for the district of Kansas in 1879, it was held that a stipulation for an attorney's fee is valid that it did not affect the negotiability of the paper. The ruling that such a stipulation makes the amount payable upon the note uncertain, and it is therefore non-negotiable, is extremely technical, and I think unsound. The Opinion of the Court-Deady, J. [August, principal and interest is the sum 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 lost its character of negotiability, that the penalty or attorney's fee can be claimed or collected at all. In fact, the stipulation, although considered in the note, is, strictly and properly speaking, no part of it, but a distinct contract, collateral thereto, as much 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's fee in case the note is not paid at maturity is not what it purports to be, but illegal interest in the disguise thereof. Of course, where it appears that such is the real nature of the transaction it should be treated accordingly. But the fact can not 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, particularly 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's fee in case his creditor is compelled to incur the expense of an action to collect the debt is only an agreement to so far reimburse the creditor 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-performance of any contract-such as to deliver grain or goods at a certain time and place. Opinion of the Court-Deady, J. 1879.1 If A loans B one thousand dollars for the period of one year, for the sum of one hundred dollars, and by reason of the failure of A to perform his contract, B is put to the expense of paying an attorney fifty dollars to collect the same by action, no reason can be given why A should not make good this loss; and if so, why may he not agree to do so in advance? As it is, the law compels A to repay the fees which B is required to pay the officers of the court in the prosecution of his action, including a nominal attorney's fee of not more than twenty dollars. (Secs. 824, 983, of the R. S.) The provision in section 824, supra, allowing the prevailing party to tax an attorney's fee of from five dollars to twenty dollars, is not, in my judgment, exclusive, but only applies in cases where the contract of the parties is silent on the subject. In such cases the law allows the fee prescribed, and no more. But this does not prohibit the parties from contracting that a greater or less one shall be paid. A statute which simply provides that a plaintiff may recover interest on money overdue at a certain rate, does not preclude parties from agreeing that a different rate may be recovered under like circumstances. And if the borrower and lender, in the absence of any statute to the contrary, may agree upon any rate of interest for the use or detention of the loan, it is not apparent why they may not agree upon the payment. of an attorney's fee, in case the latter is required to collect the same by law. But where the fee is so large as to suggest that it is a mere device to secure illegal interest, or some unconscionable advantage, the court should be slow to enforce the payment of it, and ought probably, upon slight additional evidence to that effect, to refuse to allow it, or reduce it to a reasonable sum. Borrowers and lenders seldom deal on equal terms, and the necessities of the former often constrain them to accede to terms and conditions which are oppressive, in the vain hope that they will be able to meet their engagements promptly, and thereby avoid the payment of the charges and penalties stipulated for in case of failure. It would, then, be better if these stipulations were not made for a fixed sum or percentage, but rather for such sums as the court, under all the circumstances, might judge reasonable and right. In this way, regard might be had to the nature and value of the services actually rendered by the attorney. Where the judgment is obtained without opposition on the part of the debtor, as is often the case, the fee should be less than where it is obtained against such opposition. But, after all, the right of the parties, in the absence of any statute to the contrary, to contract for the payment of a reasonable attorney's fee by the debtor, in case his creditor is put to the expense of collecting his debt by law, rests. upon the same ground as the right to make any other contract not prohibited by law, or contra bonos mores. Assuming, then, what has not been questioned, and upon which I express no opinion, that one hundred dollars is no more than a reasonable fee in each of these cases, the stipulation is both just and valid, and therefore ought to be enforced. There must be judgment accordingly. WILLIAM RICKARDS ET UX. v. WILLIAM S. LADD, CIRCUIT COURT, DISTRICT OF Oregon. 1. AMENDED RETURN.-In the absence of legislation to the contrary, a court has the discretion to permit an officer to amend a return with or without notice, and at any time after the date thereof, so as to bind the parties to the action or those claiming under them as privies. 2. SAME THIRD PERSONS.-But a court can not authorize a return to be amended so as to affect the rights of third persons acquired in good faith prior to such amendment. 3. SAME WHEN CONCLUSIVE.-An amended return, as between the parties to the action, or their privies, whether made with or without notice, can not be questioned by them collaterally. Before DEADY, District Judge. IV. Scott Bebee, for the plaintiff. 1879.] Opinion of the Court-Deady, J. John W. Whalley, for the defendant. DEADY, J. This action is brought by the plaintiffs, as citizens of California, against the defendant, as a citizen of Oregon, to recover the possession of lot No. 10 in block B in the city of Portland. By the stipulation of the parties the cause is tried without a jury, and the following facts are considered proved: That in 1867 the plaintiffs mortgaged the premises in controversy to Ann Carney, to secure the sum of one thousand dollars, then loaned by her to the plaintiff, William Rickards; that on November 14, 1868, said Ann, and Edward Carney, her husband, obtained a decree in the state circuit court for the county of Multnomah, to enforce the lien of said mortgage by the sale of the premises, upon which decree the same were sold to said Edward on December 24, 1868, and on August 14, 1869, duly conveyed to him by the sheriff making such sale, and that the defendant has become the owner of all the interest in the premises so conveyed to said Edward. The decree in Carney v. Rickards was given for want of an answer-neither of the defendants appearing in the suit. From the return of the deputy sheriff who served the summons, it appears that the wife was served personally and the husband constructively, by a copy of the summons and complaint being delivered to her for him; but it does not appear that the husband could not be found in the county, or that any effort was made to serve him personally. After the commencement of this action-July 30, 1879said deputy applied to the circuit court aforesaid for leave to amend his said return so as to state therein that "he made due and diligent search for said defendant, William Rickards, in order to serve him in person, but was unable to find him within the county," which application was allowed by said court, and the return amended accordingly. No notice of this application was given to the plaintiffs herein, and so far as appears, no evidence or circumstance was offered or used in support thereof except the affidavit of the deputy that he verily believed he had made such |