opments. Some of the trustees of the Edgar Collegiate Institute are also members of the session of the Presbyterian Church, and in that way we have an interest in it." On cross-examination: I don't think the trustees of

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the Presbyterian Church and Collegiate Academy ever abandoned the intention of having a school there. They spoke of that frequently before and after the deed was made. Long before this suit was thought of, we talked the matter over frequently, and our consideration of it began to crystallize into a fixed resolve to keep the property for some future developments, and, if we used it as a parsonage, to lease it, and keep it as a school, thinking that possibly the demands of Paris after a while would require a school of a higher order." And: "I think we always kept up our organization as trustees." Redirect: "We thought we would use it as a parsonage, and at some future time we might need it for a high school."

The rule is that it is a tacit condition of the grant to be a corporation that the grantees shall act up to the end or design for which they were incorporated; and that hence, through neglect or abuse of its franchise, a corporation may forfeit its charter as for condition broken, or for a breach of trust. Ang. & A. Corp. § 774, and cases cited in note 1; High, Extr. Rem. § 666. And ourstatute provides that proceedings, in the nature of quo warranto, may be prosecuted against a corporation, where it "does or omits any act which amounts to a surrender or forfeiture of its rights and privileges as a corporation." Section 1, c. 112, Rev. St. 1874, (2 Starr & C. 1871.) It is true that, "where a misuser is relied upon as the foundation for proceedings to procure a forfeiture of the corporate franchise, it must appear that there has been such a neglect or disregard of the corporate trust, or such a perversion of it to private purposes, as in some manner to lessen the utility of the corporation to those for whose benefit it was instituted, or to work some public injury." High, Extr. Rem. § 666. But it has been seen here that there has been a total abandonment for years of the corporate trust, namely, the maintaining of an institution of learning in which the branches of a classical, literary, and scientific education are taught, in or adjacent to the town of Paris; and so those for whose use and benefit the corporate trust was instituted have wholly lost and been deprived of it; and it is not shown that such an institution will be certainly attempted to be established at any time in the future. Moreover, under this charter $25,000 of the corporate property, without qualification or restriction, is exempt from taxation. Since its enactment, our constitution has been amended so that there can now benoexemption from taxation save by general law. Const. 1870, art. 9, § 3. And the general law only exempts from taxation such property of institutions of learning as is "not leased by such institutions, or otherwise used with

exemption from taxation given by its charter, -as it must, if it has not forfeited its right under its charter, while at the same time it fails to discharge the trust to the public for which the corporation was created. It follows necessarily, from the views we have expressed, that, in our opinion, the circuit court was right in giving judgment of ouster against the corporation. The judgment is affirmed.

(142 111. 589)

DORSEY v. WOLFF. (Supreme Court of Illinois. Nov. 2, 1892.) NEGOTIABILITY OF NOTE-ATTORNEY'S FEE

USURY.

1. The negotiability of a note is not de stroyed by a stipulation therein that, if not paid when due and suit is brought thereon, the maker will "pay ten per cent. on the amount due in addition as an attorney's fee, to be recovered as part of this note, or by separate suit." 38 Ill. App. 305, affirmed.

2. Such stipulation as to attorney's fee passes by indorsement to the assignee, who may bring a separate suit thereon in accordance with its terms.

3. Such stipulation is not a violation of the usury law, since it is but a provision against loss to the holder.

Appeal from appellate court, third district.

Assumpsit by Marcus A. Wolff against William M. Dorsey. Plaintiff obtained judgment, which was affirmed by the ap. pellate court. Pending appeal, plaintiff died, and Eliza Wolff, his administratrix, was substituted as appellee. Defendant appeals. Affirmed.

Palmers & Shutt, for appellant. Α. Ν. Yancey, for appellee.

MAGRUDER, J. This is an action of assumpsit begun in the circuit court of Macoupin county on May 16, 1889, by Marcus A. Wolff against the appellant, Dorsey, to recover, as attorney's fees, the suin of 10 percent. upon the amount found to be due upon the promissory notes hereinafter mentioned, in a suit theretofore brought upon said notes. The defendant demurred to the declaration. The demurrer was overruled. The defendant excepted to the order overruling the demurrer, and elected to stand by his demurrer. Thereupon plaintiff's damages were assessed at $1,619, and judgment was rendered in his favor for that amount. The judgment has been affirmed by the appellate court, from which latter court the case is brought here by appeal.

The declaration sets up three notes, executed by the defendant, William M. Dorsey, dated December 31, 1885, payable to the order of George W. Belt, at the banking house of Belt Bros. & Co., in Bunker Hill, Ill.,-the first for $13,586.84, on or before two years after date; the second for $543.47, on or before eighteen months after date; and the third for $543.47, on or before two years after date, each of

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

which notes, after the maker promises for value received to pay the amount therein pamed to the order of said Belt, contains the following words: "With eight per cent. interest per annum after maturity, and, if not paid when due and suit is brought thereon, then we promise to pay ten per cent. on the amount due hereon in addition as an attorney's fee, and to be recovered as part of this note, or by separate suit." By the terms of each note, also, the makers and indorsees waive presentment for payment, protest, and notice, etc. The declaration then avers that Dorsey delivered said notes to Belt, and Belt indorsed the same to plaintiff, etc.; that said notes were not paid when due; that suit was brought thereon; that the said 10 per cent. was not paid before or after said suit was brought, and was not recovered in said suit so brought upon said notes as a part thereof, etc. One of the counts, in addition to the foregoing averments, alleges that, after the maturity of the notes, they were placed in the hands of an attorney for suit; that suit was brought thereon, and, the 10 per cent. attorney's fee not having been recovered therein, the plaintiff, before the bringing of the present suit, paid his attorney for his services in said former suit the said sum of $1,619.20.

The main question presented by the assignments of error is whether or not the notes described in the declaration are negotiable instruments. It is claimed by the appellant that the notes are made nonnegotiable by the insertion therein of the written promise of the maker that, if they were not paid when due and suit was brought thereon, he would pay 10 per cent. on the amount due thereon in addition, as an attorney's fee, and to be recovered as a part of the notes, or by separate suit; that the indorsements by the payee did not confer the right upon the indorsee to bring suit in his own name upon the notes; that, even if such indorsements should be held to have conferred upon the assignee the right to bring suit upon the notes in his own name, it did not confer upon such assignee the right to bring a separate suit upon the stipulations or promises as to the attorneys' fees.

Various definitions have been given of a "promissory note." In general terms, In general terms, it may be defined to be a written promise by one person to pay to another person therein named or order a fixed sum of money, at all events, and at a time specified therein, or at a time which must certainly arrive. Lowe v. Bliss, 24 Ill. 168; Chicago Ry. Equipment Co. v. Merchants' Bank, 136 U. S. 268, 10 Sup. Ct. Rep. 999; Story, Prom. Notes, p. 2; 3 Kent, Comm. 74; 2 Amer. & Eng. Enc. Law, p. 314. A note is none the less negotiable because it is made payable on or before a named date. Chicago Ry. Equipment Co. v. Merchants' Bank, supra; Cisne v. Chidester, 85 Ill. 523; Ernst v. Steckman, 74 Pa. St. 13. An instrument for a specified sum of money, and also for the payment of something else, the value of which is not ascertained, but depends upon extrinsic evidence, is not a note. Lowe v. Bliss,

supra. A note which provides for the payment. after the maturity thereof, of a certain rate of interest per annum, not exceeding the legal rate, is not made conditional by such provision. Houghton v. Francis, 29 Ill. 244; Reeves v. Stipp, 91 Ill. 609; Laird v. Warren, 92 III. 204.

Applying these definitions to the notes mentioned in the declaration in this case, we find that each note is "a note for a sum certain, payable at a fixed date." Dietrich v. Bayhi, 23 La. Ann 767. The notes are not payable on a contingency, because the maker has the option of paying on or before a certain date; nor are they conditional instruments because they contain the words, "with eight per cent. interest per annum after maturity. The portion of each note which precedes the stipulation or promise as to the attorney's fee is in itself a complete promissory note. For example, the part of the first note that goes before the provision for the fee is as follows: "$13,586.84. Bunker Hill, Ills., Dec. 31st, 1885. On or before two years after date, for value received, we or either of us promise to pay to the order of George W. Belt, thirteen thousand five hundred eighty-six and 84-100 dollars, payable at the banking honse of Belt Bros. & Co. in Bunker Hill, Illinois, with eight per cent. interest per annum after maturity," etc. "Here the sum, time of payment, and payee are certain, and these are the essential characteristics of a promissory note," Houghton v. Francis, supra. The promise to pay the attorney's fee is a promise to do something after the note matures. It does not affect the character of the note before or up to the time of its maturity, either as to certainty in the amount to be paid, or fixedness in the date of payment, or definiteness in the description of the person to whom the payment is to be made. The stipulation or promise as to the attorney's fee cannot, therefore, affect the negotiability of the note, because the negotiability of a promissory note is, for all practical purposes, at an end when it matures. Parties taking it after its maturity cannot claim to be innocent holders without notice of defenses which may be set up by the maker against its collection. If the stipulation for an attorney's fee is of such a character as to make the a amount to be paid at maturity uncertain or indefinite, the note cannot be regarded as negotiable so as to authorize a suit upon it by the indorsee; but, where the stipulation does not have such an effect, its insertion in the note does not destroy the negotiability of the note.

When the amount to be paid at maturity is certain and fixed, the maker knows what he is to pay, and the holder knows what he is to receive, from the face of the note itself. Commercial paper is expected to be paid promptly when it is due. A stipulation for an attorney's fee, which is only to be recovered if the note is not paid when due and suit is brought upon it, can have no force except upon the maker's default. If he keeps his contract by paying his note at its maturity, he will not be obliged to pay the additional amount; and no element of uncertainty enters into

maker offers to the holder an assurance of his own confidence in his ability to pay without suit, and thereby adds to the value of the paper as promising less expense in its collection. It has been said that "the additional agreement relates rather to the remedy upon the note, if a legal remedy be pursued, than to the sum which the maker is bound to pay; and that itis not different in its characterfrom a cognovit, which, when attached to promissory notes, does not destroy their negotiability." Daniel, Neg. Inst. (4th Ed.) §§ 62, 62a. We do not think that the negotiability of the notes in this case was destroyed by the stipulations therein as to attorneys' fees.

The view here expressed is sustained by the authorities. In Nickerson v. Sheldon, 33 111. 372, thenotecontained this provision: "And we further agree, if the abovenote is not paid withoutsuit, to pay ten dollars, in addition to the above, for attorneys' fees.” In thatcase the plaintiff did not declare for the $10, and hence the recovery was only for the principal and interest due on the note, but we held the note to be negotiable under the statute, and said: "The amount due by this note is absolutely certain, and it possesses all the requisites of a negotiable instrument under the statute. Stewart v. Smith, 28 111. 397. There is no uncertainty as to the precise sum of money to be paid on the maturity of the note." Bane v. Gridley, 67 111. 388; Gobble v. Linder, 76 I11. 157; Barton v. Bank, 122 Ill. 352, 13 N. E. Rep. 503. In Stoneman v. Pyle, 35 Ind. 103, the note contained a stipulation for the payment of attorneys' fees should suit be instituted thereon, and it was said: “We see no reason, on principle or authority, or on grounds of public policy, for holding that such a stipulation destroys the commercial character of paper otherwise having that character. So here the defendant had the right to pay the face of the note when due, and avoid the attorneys' fees. As long as the note retained the peculiar characteristics of commercial paper, viz., up to the time of its maturity and dishonor, the amount to be paid on the one hand, and recovered on the other, was fixed and definite." Smock v. Ripley, 62 Ind. 81. In Gaar v. Banking Co., 11 Bush, 180, there was indorsed upon the back of an accepted bill of exchange an agreement by the drawers, indorsers, and acceptors thereof "to pay a reasonable attorney's fee to any holder thereof if the same shall thereafter be sued upon, and also pay interest at the rate of ten per cent. per annum after maturity until paid;" and it was claimed that the written agreement so indorsed upon the bill

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tained from it exactly how much money it. represents. As long, therefore, as it remains a substitute for money, the amount which it entitles the holder to demand must be fixed and certain; but when it is past due it ceases to have that peculiar quality denominated 'negotiability, or to perform the office of money; and hence anything which only renders its amount uncertain after it has ceased to be a substitute for money, but which in no wise affected it until after it had performed its office, cannot prevent it becoming negotiable paper." In Seaton v. Scovili, 18 Kan. 433, a note for the payment of a certain sum, "with interest at twelve per cent. per annum after due until paid, also costs of collecting, including reasonable attorneys' fees if suit be instituted on this note," was held to be negotiable; and Mr. Justice BREWER, delivering the opinion of the court, quoted with approval the above extract from the Kentucky case, and said: "The amount due at the maturity of the paper is certain; and the only uncertainty is in the amount which shall be collectible in case the maker defaults, at the maturity of the paper, in his promise to pay, and the holder is driven to the necessity of instituting a suit for collection, and then only as to the expenses of such collection." In Sperry v. Horr, 32 Jowa, 184, each of the notes sued upon was foracertain sum, and contained the following words: “With ten per cent. interest until paid; if not paid when due, and suit is brought thereon, I hereby agree to pay collection and attorneys' fees therefor;" and the court held them to be negotiable, saying the attorneys' fees are not part of the sums due on the notes, but are an amount for which the maker may become liable when a legal remedy is enforced against him. Shagart v. Pattee, 37 Iowa, 422; Bank v. Breese, 39 Iowa, 640; Howenstein Barnes, 5 Dill. 482; Schlesinger v. Arline, 31 Fed. Rep. 648; Sewing Mach. Co. v. Moreno, 6 Sawy. 35, 7 Fed. Rep. 806.

V.

Inasmuch as the note is negotiable, and passes by indorsement to the assignee, the agreement as to the attorney's fee also passes to such assignee as a part of the note. The stipulation or promise to pay the attorney's fee is not made with the payee alone. The note is payable to the payee or order. The promise is as much to the holder as to the original payee. The fee is to be paid if the note is not paid when due, whether it is then owned by the payee or by any other holder. Moreover, the attorney's fee is an incident to the main debt and passes with it. Bank v. Ellis, 2 Fed. Rep. 44; 2 Daniel, Neg. Inst. § 62a; Adamsv. Addington, 16 Fed. Rep. 89.

that the amount of the attorney's fee was not ascertained, and hence that the bill was foran uncertain amount; but the court held otherwise, and said: "The amount to be paid at maturity was fixed and certain, and it was only in the event that the bill was not paid when due that any uncertainty arose. The reason that the rule that the amount to be paid must be fixed and certain is that the paper is to become a substitute for money, and

v.32N.E.no.5-32

the cost of collection in case of suit, gives the note currency as well as security, and is regarded as a provision for the indorsee or holder as well as for the payee. Bank v. Ellis, 6 Sawy. 96, 2 Fed. Rep. 44. Daniel, in his work on Negotiable Instruments, (volume 2, § 62a,) says: "When the added stipulation is deemed valid, and the bill or note negotiable, such stipulation becomes a part of the acceptor's or indorser's contract, and need not be sued for by the at