hear parol evidence to that effect, on account of the Statute of Frauds and Perjuries. In Andrews v. Andrews, 8 Conn. 80, there was no provision extending beyond the life of the husband; yet the widow was decreed to be barred. The court say in this case: "There is, perhaps, no principle better settled than that any provision which an adult before marriage agrees to accept in lieu of dower, will amount to a good equitable jointure." In Shaw v. Boyd, 5 Serg. & Rawle 310, and Jones v. Powell, 6 Johns. Ch. 194, we find a recognition of the doctrine, that acceptance of a term of years or a sum of money, or a trust estate, or any other kind of collateral satisfaction is a good bar in equity, and in Kennedy v. Mills, 13 Wend. 553, it was said that the wife may, by her assent, before marriage, be barred by a pecuniary provision. In McCartee v. Teller, 2 Paige, 518, the intended wife was an infant at the time the contract was made. The Chancellor said: "An adult female might in equity bind herself by an ante-nuptial agreement to receive a simple pecuniary provision, although uncertain as to the time of its commencement, or as to the extent of its duration. The text-books are full of allusions to the same effect. 4 Dane's Abr., c. 130. An adult woman is said to be barred: By her acceptance of any provision, however small and precarious. 1 Cruise Dig. 226: by her acceptance of any provision. Clancy on Husband and Wife; by her agreement to accept any provision, however inadequate or precarious. 1 Roper on Husband and Wife, 476; by any terms which she may think proper to accept. 1 Washb. Real Prop., 319. She may accept, if she pleases, a chance in satisfaction of dower, she agrees to. Williams Real Prop. 226.

3. It must be made to herself, and not to another in trust for her. In Vizard v. Longden, cited in Tinney v. Tinney, 3 Atk. 8, and Earl v. Drury, 2 Eden, 66, by Lord Hardwicke, who was counsel in the case, the bar of dower was a bond by the husband, previous to marriage, agreeing to settle on the wife £14 per annum for her livelihood and maintenance. In Jordan v. Savage, Bac. Abr. Jointure. B 5, 717, 2 Eq. Ca. Ab. 102, cited in 2 Edens Ch. 66, and 2 Paige, 557, the wife was held barred of her customary free bench by a covenant of the husband with trustees to settle his land to cer

tain uses, provided that the lands so settled on the wife should be in lieu of her customary estate. In Williams v. Chilty, 3 Ves. 545, leasehold estates assigned in trust for the wife in lieu of dower were held to be a good equitable jointure. jointure. In Estcourt v. Estcourt, 1 Cox's Ch. 20, the wife was held barred of dower by a bond of the husband to the wife's mother, his intended wife being twenty-five years of age, conditioned to settle £500 per annum on the wife for life, to be in full satisfaction of her dower. In Tew v. Earl of Winterton, 3 Bro. C. C. 493, it appears that the court considered the wife barred of her dower by a bond entered into by the husband before marriage, to convey sufficient estates, in trust, to pay her in case she survived him, an annuity of £600 in lieu of dower. In Corbet v. Corbet, 1 Sim. & Stu. 612, the widow was held barred by an indenture of the husband, before marriage, granting to trustees a yearly rent charge of £100 in bar of dower. See also Hervey v. Hervey, 1 Atk. 563. The dower is barred, whether the wife was, or was not, of age at the time of the settlement, provided it received the assent of the parent or guardian. Earl v. Drury, Mc Cartee v. Teller, Corbet v. Corbet, supra.

4. It must be in satisfaction of her whole dower, and not of a part of it. Co. Litt. 36 b.; Vernon's Case, 4 Co. 1.

5. It must be so expressed or averred, or by necessary implication appear to be so made in satisfaction of dower. Co Litt. 36 b.; Vernon's Case, 4 Co. 1.

6. It must be made before marriage. 5 Johns. Ch. 482.

Of all the conditions which the original legal jointure prescribed, as requisites for barring dower, only the last three have been retained as necessary conditions in the execution of a valid ante-nuptial contract. The statutes of the various States may have made some modications in these provisions, but they have all substantially enacted similar clauses.

While it is seen that the courts have departed far from the requisites essential to constitute a good legal jointure in the construction of ante-nuptial contracts, and have given them a liberal interpretation-Dominick v. Michael, 4 Sandf. (N. Y. Sup. Ct.) 374; Gause v. Hale, 2 Ired. (N. C.) Eq. 241; Smith v. Maxwell, I Hill (S. C.) Ch. 101; Hutchins v. Dixon, 11 Md. 29-they have always looked upon them

with the same circumspection as upon agreements between persons standing in a fiduciary relation to each other. They have been none the less guarded than relations existing between parent and child, or guardian and ward, and circumstances attaching the least suspicion to those relations, will often render them void and of no effect,

Did the contract comply with the provisions of the statute? Was it reduced to writing, and properly signed? Was it in lieu of dower, and expressly stated in the deed? Was there any fraud or misrepresentation at the time, which induced the wife to assent to its conditions? These are questions which present themelvesto the consideration of the court, and demand its careful attention. As to the compliance of the contract with the statute of frauds, what will be considered a sufficient part performance, to constitute an exception to the rule and take it out of the operation of the statute, is often difficult to determine. In 4 Strobh. (S. C.) Eq. 179, it is stated that a parol agreement in consideration of marriage, if made and sufficiently proved, will be sustained as an ante-nuptial settlement; but where the only proof shows that the understanding was made after marriage, it will not be sustained. In 3 Call (Va.) 384, a parol marriage contract, entered into before Va. Stat. 1785, requiring marriage contracts to be recorded, was sustained against a subsequent voluntary conveySee, also, Houghton v. Houghton, 14 Ind. 505; Beard v. Griggs, 1 J. J. Marsh (Ky.) 22.

ance.

The case of Kline v. Kline, 57 Penn. St. 120, is interesting as furnishing an instance of what was regarded as a material concealment or fraud in the contract, setting it aside. The judge of the lower court, in giving judgment, said:

"The woman was bound to exercise her own judgment, and take advantage of the opportunity that existed to obtain information; if she did not, it was her own fault. The parties were dealing at arms-length. He was not bound to disclose to her the amount or value of his property." Judge Sharswood reversed the judgment, saying: "To say that she was bound, when the contract was proposed, to exercise her judgment-that she ought to have taken advantage of the opportunity that existed to obtain information, and that if she did not do so, it was her own fault, is to suggest

what would be revolting to all the better feelings of woman's nature; to have instituted inquiries into the property and fortune of the betrothed would have indicated that she was actuated by interested motives. She shrunk from the thought of asking a single question. She executed the contract without hesitation and without inquiry. She believed that he would propose nothing but what was just, and she had a right to exercise that confidence. She lived with him seventeen years, and, no doubt, assisted largely in accumulating the fortune of fifteen thousand dollars, of which he died posW. H. W.

sessed."

FRANCHISE - MEANING OF TERM, MEMBERSHIP IN BOARD OF TRADE.

BOARD OF TRADE v. PEOPLE.

Supreme Court of Illinois.

[Filed at Ottawa, June 21, 1879.]

The right of membership, in the board of Trade, an organization for the transaction of commercial business, is not a "franchise" in the strict sense in which that term is used in the statute, and therefore an appeal does not lie from the circuit court directly to the supreme court, in a case where such a right is involved.

Appeal from Cook County.

SCOTT, J., delivered the opinion of the court:

The relator having been expelled from the Board of Trade of the city of Chicago, filed a petition in the circuit court of Cook county for a mandamus, to compel that body to restore him to membership. On the hearing, a peremptory writ of mandamus was awarded in accordance with the prayer of the petition, and respondent brings the case directly to this court on appeal, notwithstanding the law establishing appellate courts was in force when final judgment was pronounced in the cause. The relator moves to dismiss the appeal on the ground that this court has no jurisdiction to hear the errors assigned.

The decision of the motion made involves a construction of the statute under which the appeal was taken, that is supposed to confer the right and which provides as follows: "Appeals and writs of error shall lie from final orders, judgments or decrees of the circuit courts * * directly to to the Supreme Court in all criminal cases and in cases involving a franchise or a freehold or the validity of a statute." The practice act upon the same subject provides that "in all criminal cases and in cases in which a franchise or a freehold or the validity of a statute is involved, appeals shall be taken directly to the Supreme Court, in case the party appealing shall so elect, excepting in

chancery cases." As this is not a chancery suit, it is maintained the appeal will lie, because it is claimed a "franchise" is involved.

The Board of Trade is a corporation organized under a special act of the General Assembly, and is a corporation organized solely for the purpose of transacting commercial business and for no other purpose whatever. The relator was a member of the Board and was entitled to all the benefits of membership. Whether relator was lawfully or illegally expelled is not a matter that need now be considered. The subject of the present litigation concerns his membership and his right to be restored to the enjoyment of its privileges. No question is made that in any degree concerns the validity of the corporation, nor has the litigation any relation to it. The inquiry, then, must be, does the membership of the relator come within. the definition of a "franchise," as that term is used in the statute? Our conclusion is it does not. This court in Chicago, &c. R. Co. v. People, 37 Ill. 547, adopted the definition of a franchise as given by Blackstone, that “it is a royal privilege or branch of the King's prerogative subsisting in the hands of the subject, and being derived from the crown must arise from the King's grant," and added that corporate franchises in the American States emanate from the government or sovereign power; owe their existence to a grant, or as at common law to prescription, which presupposes a grant, and are invested in individuals or a body politic." Precisely the same definition has been uniformly given of a franchise by text writers and courts of the highest authority. Angel & Ames on Corp., sccs. 4, 737; Bank of Augusta v. Earle, 13 Pet. 519; Morgan v. Louisiana, 3 Otto, 217; City of Bridgeport v. New York, &c. R. Co., 36 Conn. 255; People v. Utica Ins. Co., 15 Johns. 358. In the Bank of Augusta v. Earle, it was said by the court: "It is essential to the character of a franchise that it should be a grant from the sovereign authority, and in this country no franchise can be held which is not derived from a law of the State."

As was said in City of Bridgeport v. New York, &c. R. Co., "the term, franchise, has several sig. nifications, and there is some confusion in its use, but when it is used in a statute or elsewhere in the law, it is generally, if not always, understood as a special privilege conferred by grant from the State or sovereign power, as being something not belonging to the citizen of common right." In Morgan v. Louisiana, the court very justly remarked that much confusion of thought had arisen from attaching a vague and indefinite meaning to the term, franchise.' 99

It must have been in this restricted sense the term franchise was used by the General Assembly in the statute we are considering and not in that broad sense contended for. No doubt the word "franchise" is sometimes used as synonymous with privileges and immunities of a personal character, but in law, its appropriate meaning is understood to be something which the citizen can not enjoy without legislative grant. Many of our religious, benevolent, literary and scientific

societies and associations are incorporated under general or special laws, but it was never understood that members of such societies or associations possessed or exercised any franchise. That they obtain what is most appropriately termed "membership," which means freedom of the priv ileges it confers, and nothing more. That is precisely the case at bar. Relator had membership in this corporation and the freedom of its privileges, whatever they were, but in no just sense did he exercise any franchise granted to him or the corporation by the General Assembly. It is lawful for any person or association of persons to transact commercial business without legislative grant for that purpose. A corporation for such purposes is a mere convenience and nothing more. A member of such a corporation exercises no other right in the buying or selling of commodities than what any citizen of common right may do; except as in the present instance, by virtue of his membership, he may transact such business in a room belonging to the corporation, which is a mere privilege and not a franchise in the sense that term is used in the statute. One test that might well be applied, is that in case of the non user or misuser by the party owning membership in such a corporation, an information would not lie against him at the suit of the people. It is not understood that the people are prosecuting this case further than to give the writ which any citizen may invoke as a statutory right. Further than that, the people lend no aid to this prosecution. So far as the General Assembly has granted a franchise to this corporation, it is a matter of no public concern who owns a membership in the corporation.

No franchise in the sense that term is used in the statute being involved in this litigation, the motion made must prevail, and the appeal will be dismissed.

SCHOLFIELD and DICKEY, J.J., dissenting:

We do not concur in the opinion. We think that the word "franchise " as used in the constitution and in the statute was not used in the strict technical sense, but in its broader and more popular sense.

$1,000, conditioned for the payment of all indebtedness on the part of Moreno to the plaintiff; and on November 23, 1877, said Moreno with two others as his sureties, executed and delivered another bond of like amount and condition to the plaintiff. These actions are brought upon these two bonds to recover an amount alleged to be due from said Moreno for goods, wares and merchandise sold and delivered to him by the plaintiff, and it is agreed that the amount due the plaintiff on such account is on promissory notes, $741.74, and upon an open account, $629.70; in all, the sum of $1,371.44. Each bond contains a stipulation to the effect, that in case suit is brought upon the same, the obligors therein will pay, in addition to the penalty thereof, the sum of $100 "for attorney's fees." The plaintiff now moves for judgment upon the complaint for the amount admitted to be due and for an hundred dollars in each action as an attorney's fee therein.

This latter part of the motion the defendant resists upon the ground that the provision in the bond for the payment of such fee, in addition to the penalty thereof, is void.

It appears from the books that the question raised upon this motion is comparatively a new and vexed one. It has mostly arisen in actions upon promissory notes containing a stipulation for the payment of a fixed sum or percentage as an attorney's fee to the plaintiff, in case an action is brought to collect the same. And the objection to the stipulation usually is, that the amount which may be collected upon the note, being thereby rendered uncertain, it is unnegotiable and not valid as against an endorser, or that such stipulation makes it usurious, and therefore void in whole or part.

But in some few instances, the courts have gone farther and held that such a stipulation is absolutely void, as contrary to the policy of the law and tending to the oppression of the debtor.

In Bullock v. Taylor, 7 Cent. L. J. 247, decided by the Supreme Court of Michigan in 1878, a stipulation in a note for the payment of a certain sum as an attorney's fee over and above all taxable costs, in case the same was sued upon, was held void as opposed to the policy of the law upon the subject of attorney's fees, and susceptible of being made the instrument of oppression. In Woods v. North, 84 Pa. St. 409, it was held that a similar stipulation in a note rendered the instrument non-negotiable, and thereby relieved the iudorser from liability thereon. In Witherspoon v. Musselman, 8 Cent. L. J. 75, decided by the Kentucky Court of Appeals n 1878, according to the brief abstract in the CENTRAL LAW JOURNAL, 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 inforcing it." In Wyant v. Pottorff, 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. Sheldon, 33 Ill. 372, it was held that a stipulation for an attorney's fee did not affect the negotiability of the note, but the fee was not claimed in the action. In Clawson v. Munson, 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 Gaar 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 therefore 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 attorneys' 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 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. fact the stipulation, although contained 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.

In

The ruling that such a 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 cannot 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 amourt 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 the 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-as to deliver grain or goods at a certain time and place.

If A loans B $1,000 for the period of one year for the sum of $100, and by reason of the failure of B to perform his contract, A is put to the expense of paying an attorney $50 to collect the same by action, no reason can be given why B 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 B to repay the fees which A 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 $20. §§ 824, 983 of the R. S.

The provision in § 824, supra, allowing the prevailing party to tax an attorney's fee of from $5 to $20 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 over due, 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 ex

1. A, A MEMBER OF THE FIRMS of P & Co. and S & Co., made and signed in his own name three promissory notes, upon which he indorsed, out of the usual course of business of, and in fraud of the firm, and for his own benefit and accommodation, the firm name of S & Co. and also P & Co. These notes were obtained by the plaiutiff in the market from a broker with no evidence that he was not a bona fide holder of said notes for value. Held, that there was no presumption that the broker was the agent of A, nor any presumption as to the ownership, other than that which the possession and power of disposition implies. Held, further, that the mere form of the notes themselves was not sufficient, as matter of law, to charge the plaintiff with notice of the fact that they were accomdation paper; but the jury are to say whether there was anything in the form of the notes, or in the way in which they were signed, which ought to excite the suspicion of a reasonably prudent man; and, if so, whether the plaintiff must have known that they were accommodation paper.

2. A NATIONAL BANK BOUGHT promissory notes in the market, and upon default of the maker brought suit thereon against the indorsers, who requested the court to rule that the plaintiff under its corporate powers had no right to purchase the notes, but the court declined so to rule, and instructed the jury that the bank had the right to purchase notes in the manner in which the notes in suit were purchased. Held, that assuming that a national bank can not purchase notes, the contract of purchase is entirely in lependent of the executory contract which the plaintiff is seeking to enforce; and whether the plaintiff is holding the notes for itself or for another, is wholly immaterial to the defendant, unless it shall appear that it is holding them for some one who could not enforce them against the defendant.

Action of contract on three promissory notes. At the trial the following facts appeared in evidence: That the plaintiff bank purchased each of the three notes of a broker at its place of business, before maturity, at the then going rate of discount for first-class business paper; that the notes were signed by Alexander Law, who was a member of the firm of C. F. Parker & Co., and also of the firm of John Savery's Sons, and that the firm name of John Savery's Sons was indorsed upon said notes by said Law, out of the usual course of business of the said firm, in fraud of said firm and for his own