Opinion of the Court-Deady, J. [July, 2. SAME-PATENT CASES.-The limitation contained in section 55 of the patent act of July 8, 1870 (16 Stat. 206), was repealed by operation of section 5596 of the R. S., but as to all actions and suits upon causes arising before said repeal-June 22, 1874—said limitation was continued in force by section 5599 of the R. S., and therefore an action to recover damages for the infringement of a patent before June 22, 1874, is not within the operation of the state statute of limitations. 3. AMENDMENT OF STATUTE.-Semble that under section 22 of article IV of the constitution of the state of Oregon, a section of a statute can not be amended by simply repealing a clause or subdivision of it, and that therefore subdivision 5 of section 6 of the Oregon Civil Code, in which six years are given to bring this action, is still in force notwithstanding the attempt to repeal the same by the act of October 22, 1870. (Ses. L. 34.) Before DEADY, District Judge. Addison C. Gibbs, for the plaintiff. Joseph N. Dolph, for the defendant. DEADY, J. This action was brought to recover damages for the unlicensed use of a patented railway car-brake. The complaint states that the invention was patented to one Henry Tanner for the period of fourteen years on July 6, 1852, and afterwards, on July 6, 1866, the patent was extended for seven years; that on July 13, 1854, Tanner assigned the patent and extension for certain parts of the United States, including Oregon, to the plaintiff'; and that the defendant, between July 6, 1871, and July 6, 1873, did make and use said brake in violation of said patent and the assignment aforesaid, to the damage of the plaintiff, four hundred and seventy-five dollars. The defendant demurs to the complaint, and substantially alleges that the cause of action is barred by lapse of time. Section 55 of the patent act of July 8, 1870 (16 Stat. 206), provides that the circuit courts of the United States shall have cognizance of all actions arising under the patent laws, and that all such actions "shall be brought during the term for which the letters patent shall be granted or extended, or within six years after the expiration thereof." In the R. S. said section 55 is re-enacted as section 4921, less the limitation clause above quoted, which was repealed by operation of section 5596 of the R. S. Section 721 of the 1879.] Opinion of the Court-Deady, J. R. S. re-enacts section 34 of the act of September 24, 1879, making the laws of the several states "rules of decision in trials at common law," except where the laws of the United States otherwise provide. Under this section it has been uniformly held that where congress had not otherwise specially provided, the state statute of limitations applies to actions in the national courts. It follows from this statement of the case, that unless there is a saving clause in the repealing provisions of the R. S., the only statute of limitation now, or since June 22, 1874, applicable to this class of actions, is that of the state. Upon the assumption that there is no such saving clause, the defendant contends that this action is barred by subdivision 1 of section 8 of the Or. Civil Code, which limits the time for the commencement of the actions therein enumerated to two years from the time the cause of action accrued. But there is a serious question whether the state statute does not give six years in which to bring this action. Originally, the clause in subdivision 1 of section 8 concerning actions for any other "injuries to the person or rights of another," under which it is sought to bar this action, was contained in subdivision 5 of section 6, that gives six years in which to sue upon causes of action therein enumerated. By the act of October 22, 1870 (Ses. Laws, 34), it was attempted to amend both sections 6 and 8 of the code by simply repealing subdivision 5 of the former, and repealing and re-enacting the latter, so as to include in subdivision 1 thereof the cases before then provided for in said subdivision 5, and thereby reduce the time within which actions might be brought thereon from six years to two. It can hardly be doubted that this attempt to amend said section 6 by simply repealing a certain portion of it, is in direct violation of section 22 of article IV of the constitution of the state, which provides, that "no act shall ever be revised or amended by mere reference to its title, but the act revised or section amended shall be set forth and published at full length." Now, although section 8 may have been properly amended, Opinion of the Court-Deady, J. [July, yet if section 6 was not, then subivision 5 thereof is still in force; wherefore the result is that there are two periods of limitation in the statute for actions of this kind-one for six years, and the other for two. In such a case, the plaintiff may avail himself of the longer period, and the shorter is practically a nullity. But I think there is no reasonable doubt that section 5599 of the R. S. contains a saving clause by which the limitation in section 55 of the act of 1870, supra, is continued in force for the purposes of this action. It reads: "All acts of limitation, whether applicable to civil causes and proceedings, or to the prosecution of offenses, or for the recovery of penalties or forfeitures embraced in said revision and covered by said repeal, shall not be affected. thereby, but all suits, proceedings, or prosecutions, whether civil or criminal, for causes arising, or acts done or committed prior to said repeal, may be commenced and prosecuted within the same time as if said repeal had not been made." It is difficult to conceive of anything plainer or more comprehensive than this. Read simply with reference to this case, it provides that any act of limitation applicable to actions for the infringement of patents embraced in the R. S., or covered by the repealing clauses thereof, shall not be affected thereby, but all such causes of action arising prior to said repeal may be commenced and prosecuted as if said repeal had not been made, which would be at any time within six years from the expiration of the patent or the extension thereof. Counsel for the demurrer cites Sayles v. The R. P. & P. Railway Co., 11 Legal News, 281, in which it seems to have been assumed that the limitation clause in section 55 of the act of 1870, supra, was unqualifiedly repealed by the R. S., and that therefore the limitation in actions and suits for the infringements of a patent, since June 22, 1874, under section 721 of the R. S., is to be found in the law of the state where the same is brought. But as in that case the suit was not barred by either the national or state statute, it was not material to inquire further; and, in fact, the atten 1879.] Opinion of the Court-Deady, J. tion of the court does not appear to have been called to section 5599, supra, which, as has been shown, expressly provides that actions and suits upon causes arising before the revision and repeal of June 22, 1874, "may be commenced and prosecuted within the same time, as if said repeal had not been made." The demurrer is overruled. WILSON SEWING MACHINE Co. v. T. J. MORENO ET AL. SAME V. SAME. CIRCUIT COURT, DISTRICT OF Oregon. STIPULATION FOR ATTORNEY'S FEE.-A stipulation to pay a reasonable attorney's fee to the plaintiff in case a promissory note or other contract is not performed according to its terms, and the party entitled to demand such performance is compelled to enforce it by law, is just and valid. Before DEADY, District Judge. Cyrus Dolph, for the plaintiff. Thomas N. Strong, for the defendants. DEADY, J. On September 1, 1877, the defendant, Moreno, with four others as his sureties, executed and delivered a bond to the plaintiff in the penal sum of one thousand dollars, 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 seven hundred and forty-one dollars and seventy-four cents, and upon Opinion of the Court-Deady, J. [August, an open account six hundred and twenty-nine dollars and seventy cents, in all the sum of one thousand three hundred and seventy-one dollars and forty-four cents. 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 one hundred dollars "for attorney's fees." The plaintiff now moves for judgment upon the complaint for the amount admitted to be due, and for a 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 non-negotiable and not valid as against an indorser, 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. 217, 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 attorneys' 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 indorser from liability thereon. In Witherspoon v. Musselman, 8 Cent. L. J. 24, decided |