810 FEDEEAL BEPOBTEB. �of $100, and by reason of the failure of A. to perform his contract B. is put to the expense of paying an attorney $50 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 fee of not more than $20. Eev. St. §§ 824, 983. �The provision in section 824, supra, allowing the prevailing party to tax an attorney fee of from $5 to $20, is not in my judgment exclusive, but only applies in cases where the con- tract of the parties is silent on the subject. In such cases the law allows the iee 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 cer- tain rate, does not preclude parties from agreeing that a dif- ferent rate may be recovered under like circumstances ; and if the borrower and lender, in the absence of any statute to the eontrary, 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 fee in case tho latter is required to collect the same by law. �But where the fee is BO large as to suggest that it is a mere device to aecure illegal interest or some unconscionable ad- vantage, 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 mect 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 ��� �
