rent, they contain a stipulation to defray expenses of collection." In Overton v. Tyler," Chief Justice Gibson, speaking metaphorically, said that "a negotiable bill or note is a courier without luggage;" and in Woods v. North,18 Sharswood, J., said that the attorney-fee clause "may be well characterized, like an agreement to confess a judgment was by Chief Justice Gibson, as luggage,' which negotiable paper, riding as it does on the wings of the wind, is not a courier able to carry." But, I respectfully submit that no courier, who has any regard for regularity or facility of movement, should travel without his appropriate ballast. The attorney-fee clause is not luggage,-it is ballast, and it acts as ballast to the note because, in the language of Mr. Justice Read, in Zimmerman v. Anderson, instead of clogging its negotiability, it adds to it and gives additional value to the note." Upon that phase of the question, which is concerned about the usurious aspect of the contract, the courts exhibit somewhat less discord; but, of course, these decisions cannot be cited in support of the proposition that the attorney-fee clause annuls the negotiability of the note, because, since the courts very generally hold these stipulations void," they are thereby struck out of the note, and rendered powerless to influence the question of negotiability. In my judgment, then, the better rule may be formulated thus: A stipulation by the maker of a negotiable instrument for the payment to the holder thereof of an attorney's fee in case the same is not paid without action is a valid promise, and passes with the instrument to each and every holder thereof; and each subsequent party to such instrument becomes thereby responsible in like manner for such fee to each and every subsequent holder thereof."1 But is this the rule in California? I certainly think not. The definition of a negotiable instrument is to be found in section 3087 of the civil code, which reads as follows: "A negotiable instrument is a written promise or request for the payment of a certain sum of money to order or bearer, in conformity to the provisions of this article." The provisions of art. I of chap. 1 of Title XV, are, therefore, supreme on the question of negotiability; and to them, as the appointed criterion, must we turn when engaged in determining the negotiable or non-negotiable character of a promise or request. It will be observed that the section just referred to, requires that the promise or request be "for the payment of a certain sum;" and if this language mean anything at all, it must mean that the sum is required to be certain upon the face of the paper,—the 161 Daniels on Neg. Inst. 3rd ed. sec. 62 a, p. 72. 173 Barr. 346. 1884 Pa. St. 410. 1964 Pa. St. 421. 20That is, of course, void under state usury laws. See, State v. Taylor, 10 Ohio, 378; Toole v. Stevens, 4 Leigh. 581; Bullock v amount to be paid must be fixed by the instrument itself. If the sum be not certain upon the face of the paper, and if it become necessary, at any time prior to the discharge of the obligation, to resort to extrinsic evi-· dence for the purpose of making certain the amount due on the note, it would seem that the note, not being for the payment of a certain sum, is not negotiable. As was well said by McKennan, circuit judge, in Farquhar v. Fidelity Ins. Co.": "Although there may be reason for the difference of judicial decision which exists, as to the effect upon the commercial character of a note of a provision for the additional payment of a fixed per centage for collection, which is expressed upon its face, yet there is no conflict of opinion as to the effect of such provision where the amount of the addition is determinable only by extrinsic evidence. An indefinite obligation is obviously unadapted to the exigencies of commercial paper, which derives its peculiar qualities from the intended freedom and facility of its circulation and the consequent necessity that it should carry upon its face unambiguous evidence of the maker's liability, and should denote, with precision, how much the maker is bound to pay and the holder is entitled to receive." But waiving this question of certainty, let us glance at the provisions of section 3093. This section holds the following language: "A negotiable instrument must not contain any other contract than such as is specified in this article." Now, the plain import of this language is that if the instrument does contain some contract not specified in the article referred to, the instrument is not within the provision of the article, and is not negotiable. What, then, are those contracts which may be embraced in negotiable instruments? A close analysis of the code will show, I think, that but two classes of contracts are permissible, and that under neither of these classes can the collateral contract for attorney's fees be ranged. The instrument may invest the payee with an option between the payment of the sum named in the paper, and the performance of another act; but as to the latter, the instrument is not negotiable (civil code, sec. 3090). Curiously constructed as this section is, no warrant can be found under its terms for the insertion in a note, of the collateral contract to pay an attorney's fee. And the same remark may be made concerning section 3092, which provides that "a negotiable instrument may contain a pledge of collateral security, with authority to dispose thereof." This section clearly does not authorize the attorney-fee contract. Nor can it be urged that the attorney-fee clause is admissible under section 3088, which provides that the instrument may be conditional, if the condition be one certain of fulfillment. This section simply means that an obligation dependent upon an uncertain contingency is not negotiable, and it therefore applies to a class of 22 18 Alb. L. J. 330. obligations materially different from that under consideration. It may be said, generally, that the collateral contract for attorney's fees is not a contract specified as permissible by the provisions of the statute, and therefore that it is a contract which under the law of this state, strikes dead the negotiability of any note in which it may be inserted. 24 The only decision of our supreme court, which comes within rifle-shot of this question, is that in the case of Matthews v. Martin." This was an action between the original parties to a note which provided for ten per cent. counsel fees in case a suit became necessary for the recovery of any amount due; hence, it cannot be regarded as decisive of the question here, because in that case the question of negotiability was not involved; and, moreover, under the very terms of the note, it was not necessary to resort to extrinsic evidence for the purpose of making certain the amount due on the note. But, although our own reports furnish no aid in the solution of this question, yet the case of Garretson v. Purdy " may be briefly adverted to, as supporting the view just advanced. In that case, the note provided for attorney fees in case a suit became necessary for the recovery of the amount due. The trial judge charged the jury that the note was not negotiable, and the plaintiff having lost the case below, went to the supreme court on his exception to this charge. The court, after reviewing the authorities on both sides of this vexed question, proceeded to say: "We believe that promissory notes, to be negotiable, must be unincumbered by collateral agreement, to be determined by a jury, the better rule, more in conformity to the common law and the weight of authority. But independent of these conflicting decisions, and independent of the common law upon this question, the law of this territory provides in the civil code, under the title of 'Negotiable Instruments,' as follows: 66 Section 1821. A negotiable instrument is a written promise or request for the payment of a certain sum of money to order or bearer, in conformity to the provisions of this article."’ "Section 1822. A negotiable instrument must be made payable in money only, and without any condition not certain of fulfillment." "Section 1827. A negotiable instrument must not contain any other contract than such as is specified in this article." And again, in section 6 of the civil code: "In this territory there is no common law in any case where the law is declared by the codes." In view of these express declarations in our code as to negotiable instruments, we are of opinion that the charge of the judge in the court below was correct. The judgment is affirmed." This decision appears to me to suggest the true construction of our own civil code, and to be decisive of the question. It will be observed 233 P. C. L. J. Appendix; unwritten decision. 2414 N. W. Rep. 100; Sup. Ct. Dak. that the provisions of the territorial code referred to by the court, correspond respectively with sections 3087, 3088, 3093 and section 4 of our own civil code, thus investing the decision with some little value as an authority. We may now assume that, under the law of this state, the negotiability of the note is destroyed by the insertion of the collateral contract to pay attorney's fees; and this being assumed, the further question presents itself, what is the liability of one who places his name upon the back of such a note? Clearly, no contract of indorsement, in a legal sense, can be presumed from the position of the signature, and since the signer must have intended to bind himself in some capacity, the court, acting upon the maxim ut res magis valeat, quam pereat, will construe his contract to be that of either co-maker with, or guarantor of the maker. Indorsement, in its technical sense, can be predicated of negotiable paper only; and, as was justly said by Emmett, C. J., in Helfer v. Alden,: "A person indorsing a note not negotiable, certainly intends to make himself liable in some capacity. Very frequently the indorsement alone is what gives credit to the instrument, and consequently is the only inducement for taking it. If, therefore, the indorser in such cases is not responsible on his indorsement, it amounts to a denial of justice." And the same view is taken in New York, where it is held that one who writes his name upon the back of a non-negotiable note, may be held liable by the holder as a guarantor or maker, and is not entitled to notice of demand or non-payment." This view, so far at least as it ascertains the legal quality of the liability, seems to be reasonable and just; and so, apparently, is it regarded by the courts of Minnesota," Iowa," Massachusetts, Pennsylvania," and England." There is nothing in the law of this State, which militates against this view: the signer cannot be scientifically held as an indorser; and it really makes no great difference, under the code, whether his liability be denominated that of co-maker or guarantor, since the liability in the latter case would seem to be quite as onerous as in the former. The California rule may, however, be stated to be that the signer is liable as a guarantor; and, therefore, under section 2807 of the civil code, that he is liable to the guarantee immediately upon the default of the principal, and without demand or notice. 29 San Francisco, Cal. 253 Minn. 333. 26 Seymour v. Van Slyck, 8 Wend. 403; Cromwell v. Hewitt, 40 N. Y. 491; Newman v. Frost, 52 Id. 426; Coulter v. Richmond, 59 Id. 481. 27 Helfer v. Alden, 3 Minn. 333. 28 Peddicord v. Whittam, 9 Iowa, 471; Bellingham v. Bryan, 10 Id. 317. JOSEPH J. DUNNE. 29 Jones v. Fales, 4 Mass. 245; Sanger v. Stimpson, 8 Id. 260; Sweetser v. French, 56 Mass. 309; Wareham Bank v. Lincoln, 85 Mass. 192. 30 Leidy v. Tammany, 9 Watts 354; Raymond v. Middleton, 29 Pa. St. 532. 31 Plimley v. Westley, 2 Bing. N. C. 249. CIRCUIT COURT, DISTRICT OF CALIFORNIA. CITY AND COUNTY OF SAN FRANCISCO v. JONES. DELINQUENT TAXES-ACTION and Lien for When Barred.-The statute of limitations of California is applicable to an action brought by the city and county of San Francisco, under the acts of 1878, to recover delinquent city and county and state taxes. Such action is barred, under section 338, subdivision 1, of the code of civil procedure, upon the expiration of three years after the cause of action accrues. When an action to collect such tax is barred, an action to enforce the lien thereof, created by sections 3716 and 3717 of the political code, is also barred. DEMURRER to an action to collect delinquent taxes. The opinion states the facts. B. C. Whitman, for the defendant. John P. Bell and Louis H. Sharp, for the plaintiff. Before SAWYER, Circuit Judge, and SABIN, District Judge. This is an action brought under the act of 1878, and supplementary act of the same year (Stat. 1877-8, pages 338, 962), to recover city and county, and state taxes, for the fiscal year 1875-6, ending June 30, 1876, with five per cent. penalty, and two per cent. per month interest on the city and county's portion from August 2, 1875, and on the states portion, from January 3, 1876. The complaint was filed October 5, 1883-eight years, or more, after the city and county taxes became delinquent. Defendant demurs on the ground, among others, that the action is barred by the statute of limitations, and we think the objection good. The provisions of the code of civil procedure relied on, are, as follows: Section 312. "Civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute." SECTION 338. "Within three years: 1. An action upon a liability created by statute, other than a penalty, or forfeiture." SECTION 339. "Within two years: 1. An action upon a contract, obligation, or liability, not founded upon an instrument of writing." SECTION 343. "An action for relief not hereinbefore provided for, must be commenced within four years after the cause of action shall have accrued." SECTION 345. "The limitations prescribed in this chapter apply to actions brought in the name of the state, or for the benefit of the state, in the same manner as to actions by private parties." Part of the amount claimed is for the benefit of the state, and, for the purposes of the action, the most favorable aspect of the case, is, that the city and county as to its own share of the taxes sued for, must be treated as a part of the state; for if the plaintiff with respect to its share, is to be regarded as a mere corporation, then the statute of limitations applies without reference to the provisions of section 345. The statute, then, by its express terms applies to |