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[No. 3.

Vol. I.]

LANGABER V. FAIRBURY, PONTIAC, AND N. W. R. R.

That the company has not paid or offered to pay anything to any person injured by the proposed occupancy of that street, nor taken any steps or measures to estimate the damages, or have the same assessed in pursuance of law. It is also alleged the company is wholly insolvent, and if it is permitted to take possession, control, and use that street for the purpose of operating their trains over the same, without paying coinplainant the damages he will sustain in consequence thereof, he will be without remedy in the premises, and will absolutely lose at least one half the value of his property in consequence thereof, and that the grading for railway purposes will greatly injure the street and complainant's property, and unless the company, the contractors, and their agents and servants are restrained by injunction issued forth with, the road will be finished through the street today, Sunday, and that the company and its contractors are doing the work on this day, Sunday, in order to avoid paying complainant his damages, and to defraud him out of the same, which they will accomplish successfully unless immediately enjoined by process of the court.

This bill was presented to the master in chancery in the absence of the circuit judge on Sunday ; the writ of injunction was ordered by the master on that day, and issued by the clerk, and served by the sheriff on the same day. At the September term following a motion was made to quash the writ, which was allowed and the bill dismissed.

Complainant brings the record here by writ of error, and assigns this action of the court as error.

The bill on its face presents strong grounds for the interference of a court of chancery, and justified the ordering and issuing a writ of injunction. But the defendant insists if this be so, no valid writ could issue on Sunday. He insists that the order of the master in chancery being made on Sunday was void, for the reason it was a judicial act, and Sunday is not a judicial day. As a general proposition it may be conceded Sunday is not a day in law for proceedings, contracts, &c. 2 Inst. 264.

Anciently, however, courts of justice did sit on Sunday. The early Christians of the sixth century and before used all days alike for hearing of causes, not sparing the Sunday itself; but in the year 517 a canon was promulgated exempting Sundays. Other canons were adopted in subsequent years, exempting other days, which were all revised and adopted by. the Saxon kings, and all confirmed by William the Conqueror and Henry the Second, and in that way became a part of the common law of England. Swann v. Broome, 3 Burrow, 1595. By the canons of the church, Sunday was decreed dies non juridicus, and by the same canons other days were declared unjuridical, as the day of the Purification of the Blessed Virgin Mary, the feast of the Ascension, the feast of St. John the Baptist, and All Saints and All Souls days. These were as much unjuridical days as Sunday, yet the most devoted admirer of the common law would not hesitate to say that the proceedings of a court of justice in this State on either of those days would be valid. Yet by the common law no valid judicial act could be performed on either of those days. Why, then, if such an act can be done and have binding force on these unjudicial days in this State, why should not equal efficacy be accorded to the same act if done on the other unjudicial day, viz. Sunday? It is answered that secular employment of any kind is prohibited by our Criminal Code, and reference is made to section 144.

Vol. I.]

LANGABER v. FAIRBURY, PontiaC, AND N. W. R. R.

[No. 3.

We had occasion, in Johnson v. The People, 31 Ill. 469, to express briefly our views of this question, the case being one where a recognizance had been taken by a magistrate on Sunday, from which the cognizor sought to be discharged, on the ground that having been taken on Sunday, and being a judicial act, it was void and of no effect. This court said, generally judicial acts cannot be performed on Sunday, but the recognizance was held to be valid and no violation of the section referred to. That we were to understand by the word “ necessity” not a physical and absolute necessity, but the moral fitness or propriety of the work done under the circumstances of each particular case; that any work, therefore, necessary to be done to secure the public safety by the safekeeping of a felon, or delivering him to bail, must come within the true meaning of the exception in the statute; that neither the peace or good order of society was disturbed by such a proceeding, as it may be, and usually is, silently conducted. The notion that Sunday is a day so sacred that no judicial act can be performed, had its origin with ecclesiastics of an unenlightened age, and rests upon no substantial basis ; and if it is the doctrine of the common law, it need not have application here, in this day of thought and increased enlightenment. Men are freer now than then, and are permitted to regard acts as innocent and harmless which were then deemed sacrilegious and worthy of anathema. So long as our own statute is not violated, so long as nothing is done which it forbids, there can be no reasonable ground for complaint. There is nothing in our constitution of government inhibiting the general assembly from declaring Sunday to be dies non juridicus. One step has been taken in that direction, by providing, by law, as follows: On proof being made before any judge or justice of the peace, or clerk of the circuit court within this State, that a debtor is actually absconding or concealed, or stands in defiance of an officer duly authorized to arrest him on civil process, or has departed this State with the intention of having his effects and personal estate removed out of the State, or intends to depart with such intention, it shall be lawful for the clerk to issue, and the sheriff or other officer to serve an attachment against such debtor on Sunday, or any other day, as is directed in this chapter. R. S. 1845, ch. 9, sec. 27. Here this dies non juridicus was selected by the railroad company as the proper day to commit a great outrage upon private and public rights, believing the arm of the law could not be extended on that day to arrest them in their high-handed and unlawful design. To the complainant, the acts they were organized to perpetrate on that day were fraught with irreparable injury. Feeble indeed would be the judicial arm if it could not reach such miscreants. To save a debt of twenty dollars, judicial acts can be performed on Sunday, and ministerial as well. To prevent the ruin of an individual such an act must not be done! Lame and impotent conclusion. In Comyn's Digest, title “ Temp," under the head Dies non juridicus, it is said the chancery is always open. So the exchequer may sit upon a Sunday or out of term. 5th ed. p. 405. There is nothing, to an intelligent mind, revolting in this. Suppose, in times of high political excitement, a citizen is indicted for treason, and judgment of death pronounced against him by a servile judge, who, not a slave of the crown, as were Trevelyan, Scroggs, and Jeffries, but yet the slave of an enraged populace, on an indictment never Vol. I.]

MCINTYRE v. CAGLEY.

(No. 3.

returned into court or found by a grand jury, and defective in every essential, and this judgment pronounced on Saturday, and the time of his execution fixed on the following Monday. To arrest this proposed judicial murder, an application is made to a member of the appellate court on the intervening Sabbath ; who would justify the judge should he fold his arms, and on the plea the day was not a judicial day, suffer the victim to be led to execution ? The necessity of the case would be the law of the case. The judge who has no respect for this principle is unworthy the ermine, and an unfit conservator of the rights of the citizen. The case before us is not one of life or death, but involves irreparable injury to property. An imperious necessity demanded the prompt interposition of chancery. On that principle the act is fully justified. This is the dictate of right, of reason, of common justice and common sense.

The decree of the court below, quashing the writ of injunction and dismissing the bill, is reversed, and the cause remanded for further proceedings.

A. E. Harding, for appellant.
R. G. Ingersoll, L. È. Payson & N. J. Pillsbury, for appellees.

SUPREME COURT OF IOWA.

[SEPTEMBER TERM, 1873.]

PENALTY. — LIQUIDATED DAMAGES. — STIPULATION FOR RECOVERY OF

FURTHER SUM IF NOTE SUED UPON.

J. S. MCINTYRE, Appellant, v. GEORGE CAGLEY.

The defendant made a promissory note payable to the plaintiff to which this clause was added, And we agree also to pay an attorney's fee of ten per cent. if this note is collected by suit.The note having been put in suit, held that the stipulated ten per cent. could be recovered, and that it was not in the nature of a penalty, but of liquiduted damages.

This action was brought upon a promissory note, as follows: – 66 $472.65.

CLARINDA, Iowa, November 12, 1872. “Ninety days after date, for value received, we jointly and severally promise to pay to J. S. McIntyre, or order, the sum of four hundred and seventy-two 65–100 dollars, with interest from maturity at the rate of ten per cent. per annum, interest payable annually ; payable at the First National Bank, Clarinda ; and we agree also to pay an attorney's fee of ten per cent. if this note is collected by suit. (Signed)

“ GEORGE CAGLEY." The defendant made default, and the plaintiff gave the note in evidence, and moved the court for judgment thereon for the amount thereof with interest and costs, and ten per cent. for attorney's fees, as stipulated in the note and demanded in the petition. The court refused to render

ade de aur judgment for a the

Vol. I.]

MCINTYRE v. CAGLEY.

(No. 3.

judgment for the stipulated attorney's fee unless plaintiff would prove that such fee was reasonable. This plaintiff declined to do, and the court refused to assess the attorney's fee as a part of the amount due on the note. Plaintiff appeals.

W. W. Morsman, for appellant. No appearance for appellee.

MILLER, J. The court below held that the stipulation in the note sued on, by which the maker agrees to pay “ an attorney's fee of ten per cent." on the amount of the note, was in the nature of a penalty to cover the expense of collecting the note by action, and therefore reasonable only to the extent of such actual expense, which must be shown by evidence.

We have decided in a number of cases that it is competent for parties to written instruments for the payment of money, to stipulate for the payment of a reasonable sum as an attorney's fee, where suit is brought to enforce payment of the money due on the instrument, and that such agreements will be enforced. See McGill v. Griffin et ux. 32 Iowa, 445, where the cases are collected and reviewed. In none of those cases, however, did the question here made arise. In those cases the agreement was to pay a “ reasonablesum ; here it is to pay a fixed amount, viz. ten per centum on the amount of the note.

One of the rules of construction in cases of this nature is, that the action of the court will not be defined and determined by the terms which the parties have seen fit to apply to the sum agreed upon. Although they have called it a penalty, or given it no name at all, it will be treated as liquidated damages, if, from the nature of the agreement and the surrounding circumstances, and in reason and justice it ought so to be. Sainter v. Ferguson, 7 Com. Bench, 716; Chamberlain v. Bagley, 11 N. H. 234; Brewster v. Edgerly, 13 Ib. 275; Mundy v. Culver, 18 Barb, 336; Foley v. McKeegan, 4 Iowa, 1, and cases cited on page 6. And on the other hand, although they call the sum liquidated damages, it will be treated as a penalty, if, from a consideration of the whole contract, it appears that the parties intended it as such, or if, where the injury is certain, the sum fixed upon is clearly disproportionate to the injury, and the real claim which grows out of it. Foley v. McKeegan, supra, and cases cited.

Among the principles upon which this question should be determined are these : that the sum agreed upon will be treated as a penalty, unless, first, it be payable for an uncertain amount; and, second, unless it be payable for one breach of contract, or, if for many, unless the damages to arise from each of them are of uncertain amount. Foley v. McKeegan, supra ; 3 Parsons on Con. 159, and cases cited in notes.

In Taylor v. Sandiford, 7 Wheat. 13, Marshall, C. J., says: “ In general, a sum of money in gross, to be paid for the non-performance of an agreement, is considered a penalty, the legal operation of which is to cover the damages which the party in whose favor the stipulation is made may have sustained from the breach of the contract by the opposite party."

Guided by these principles, we are of opinion that the stipulation in the note to pay the attorney's fee, cannot be properly regarded as a penalty. It is not to be paid for the non-performance of an agreement. It does not become payable, nor does it create any liability whatever, upon the Vol. I.]

MCINTYRE v. Cagley.

(No. 3.

se suma Hoag '13 N. H. "What an attorne hereon, 18

maturity of the note, unless suit is brought to enforce collection thereof. It is an agreement to reimburse the plaintiff for his expenses incurred in collecting the note by suit. Williams v. Meeker, 29 Iowa, 292. Again, it is payable for an injury of uncertain amount and extent. It is not like a case of a promise to pay two thousand dollars, if the promisor fail to pay one thousand dollars in three months; in which case it is obvious that the larger sum is a penalty for the non-payment of the smaller one, even though the parties call it liquidated damages. The injury in such case is a certain one, and the measure of damages is also certain — being legal interest on the sum due. Bagley v. Peddie, 5 Sandf. 192; Williams v. Dakin, 22 Wend. 211 ; Hoag v. McGinnis, Ib. 163; Heard v. Bowers, 23 Pick. 455; Mead v. Wheeler, 13 N. H. 351. But in the case before us the measure of damages is uncertain. What would be a reasonable amount to reimburse the plaintiff for the fees of an attorney in prosecuting a suit upon the note, and collecting the amount due thereon, is not certain, and, in the absence of an agreement of the parties, would have to be ascertained by the court or a jury upon evidence. In cases like this, the parties may agree beforehand what the injury shall be valued at, or what shall be taken as a compensation ; for if the court should set it aside, it can only do what the parties had a right to, and have done, and that is, arrive at a general probability by a consideration of all the circumstances of the case. The court would have to hear testimony and determine therefrom the measure of the injury. It being impossible to define with certainty beforehand, by reference to a money standard, the measure of the injury, it was competent for the parties to agree thereon, which they have done. The collection of a note of the amount of the one sued on in this case might, under some circumstances, involve labor and expense much greater than under others. There being this uncertainty, the sum agreed upon by the parties will not be treated as a penalty, unless for such obvious excess and disproportion to rational expectation of injury, as to make it clear that the principle of compensation was wholly disregarded, which does not appear in this case. 3 Parsons on Contracts, pages 159, 160, 161, and notes.

Of course if this sort of an agreement be resorted to as a cloak for usury, and it is so made to appear in an action thereon, it will be treated as any other usurious contract. The party would not be permitted to recover a sum of money under the denomination of attorney's fees, which was in fact unlawful interest. The judgment of the court below will be

Reversed. COLE, J., dissenting. I dissent because the opinion seems to me to be contrary to the well settled rules respecting penalties and liquidated damages ; and because its tendency will be to subject debtors to hard and excessive exactions under the name of attorney's fees.

It will be observed that the opinion is grounded upon the construction of the contract, and holds that the sum stipulated to be paid is liquidated damages. If this is correct, then the same construction must follow if the sum stipulated was two, three, five, or ten times as great. And it requires no prophet to foretell that, under such a construction, the exactions for attorney's fees, in name, will soon become exorbitant and oppressive.

In my opinion, the sum fixed should be construed as a penalty, and the

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