Dickinson, Edmund C.

English

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Volume 35 Issue 2 Article 9 February 1929 Conflict of Laws--Stipulation for Attorney's Fees Edmund C. Dickinson West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Conflict of Laws Commons, and the Legal Profession Commons Recommended Citation Edmund C. Dickinson, Conflict of Laws--Stipulation for Attorney's Fees, 35 W. Va. L. Rev. (1929). Available at: https://researchrepository.wvu.edu/wvlr/vol35/iss2/9 This Editorial Note is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. EDITORIAL NOTESin 1693, which, if intended to apply to civil actions, was justified,if at all, by the nature and function of the action of trespass atthat time. Whatever authority this dictum may have had whenpronounced was destroyed by the change wrought in the action oftrespass by the Statute of William and Mary,18 which abolishedthe fine payable to the Crown and so removed both the last vestigeof the criminal function of the action and the Crown's interest inthe result.It is not justified by public policy. It is not likely to deter thecommission of breaches of the peace. The State has ample ma-chinery by which to punish such breaches of the peace as it re-gards as sufficiently important to require punishment. It puts apremium upon criminality by giving to one who has joined in abreach of the peace a remedy for injuries for which he could notrecover were he innocent. It is inconsistent with the policy of thelaw which leaves parties to an illegal transaction where their con-duct places them and refuses to enforce obligations arising out ofit or to give redress for harm inseparable from it.Had this rule of the Restatement with the reasons for it fullyset out been called to the court's attention, is it unreasonable tosuppose that they would have accepted and followed it ratherthan the note in American & English Annotated Cases? Are welikely to get better results when a court depends on Corpus Jurisfor its law or when it takes the carefully reached results of thework of the American Law Institute?If the work of annotating these restatements aids even slightlyin giving them wider distribution and use, through making themof more value to the lawyers and judges of the state, then it wouldseem to be a worth while task.-EDMUND C. DICKNSON.*C NFLiCT OF LAWS-STIPULATION FOR ATTORNEY'S l s.-Thehope, engendered by the decision in People's State Bank v. Jeffries,'of a new rule in West Virginia as to stipulations for attorneys'fees in promissory notes, has been dispelled. In that case, ourSupreme Court of Appeals allowed reasonable attorney's fees in asuit on a note made and payable in Indiana, the laws of that statepermitting the recovery of such fees where the promise to paythem is unconditional. By a line of decisions beginning withRaleigh County Bank v. Poteet,2 the court had steadfastly refused18 Stat. of 5 & 6 Win. and Mary, e. 12.**Professor of Law, West Virginia University.1 99 W. Va. 399, 129 S. E. 462 (1925).2 74 W. Va. 511, 82 S. E. 332 (1914).1Dickinson: Conflict of Laws--Stipulation for Attorney's FeesDisseminated by The Research Repository @ WVU, 1929WEST VIRGINIA LAW QUARTERLYto enforce such provisions in West Virginia notes. One groundassigned for this refusal was that our statute fixed the legal costsand therefore no more could be recovered; another, and theprincipal one, that such stipulations were against the policy of ourlaw. Either of these reasons would justify a refusal to allowattorney's fees in a suit on a foreign note. If such a stipulationpertains to remedy, then the lex fori should govern under the wellsettled rule of conflict of laws ;4 if contrary to the public policy ofthe forum, that policy should not "be relaxed on the ground ofcomity to enforce contracts which, though valid where made, con-travene such policy.''r In fact, not a single case could be foundin which a court had allowed such fees in a suit on a foreign notewhen a provision for attorney's fees was contrary to the declaredpublic policy of the state. The allowance of such fees in the easeof People's State Bank v. Jeffries,' therefore, was sufficiently in-dicative of a change of attitude to raise strong hopes that ourcourt no longer regarded such provisions as contrary to publicpolicy. The decision in the case of Campen Brothers v. Stewart,'recently reported, effectively ends all speculation on the subject.It involved a promise for attorney's fees in a note made in WestVirginia, payable in Virginia, where such a provision is valid andenforceable. The court declares all such stipulations void asagainst public policy; holds the principle to apply to foreign notessued on in this state; and expressly disapproves the case ofPeople's State Bank v. Jeffries.'Granting that stipulations for attorney's fees in promissorynotes are contrary to the policy of our law, no fault can be foundwith the decision. The few courts asserting the same policy haveuniformly refused to enforce such provisions in foreign notes.,The writer wishes simply to express his disappointment that thecourt did not seize the opportunity, as the Virginia court did in thecase of R. S. Oglesby Company v. Bank of New York, 10 to get inline with the great majority of the states,1' by declaring that suchprovisions are not contrary to the public policy of the state.-EDMUND C. DICKINSON.3 See note in 32 W. VA. L. QU R. 147.4 Scudder v. Union Nat. Bank, 91 U. S. 406, 23 L. ed. 245 (1875).r B. C. L. 944.o Supra, n. 1.7 145 S. E. 381 (1928).8 Supra, n. 1.P Clark v. Tanner, 100 Ky. 275, 38 S. W. 11 (1896); Continental SupplyCo. v. Syndicate Trust Co., 52 N. D. 209, 202 N. W. 404 (1925); White-Wilson-Drew Co. v. Egelhoff, 96 Ark. 105; 131 S. W. 208 (1910).10 114 Va. 663, 77 S. E. 468 (1913).31 See note in L. R. A. 1915B, 928.2West Virginia Law Review, Vol. 35, Iss. 2 [1929], Art. 9https://researchrepository.wvu.edu/wvlr/vol35/iss2/9

Conflict of Laws--Stipulation for Attorney\u27s Fees

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Conflict of Laws--Stipulation for Attorney\u27s Fees

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