On Application por Rehearing.
The opinion of the Court was delivered by
Poché, J.Plaintiff’s counsel call our attention to the omission in the judgment of the lower court, and in our decree, to pass upon his claim for five per cent, attorneys’ fees on the amount of his judgment, as stipulated in the act of mortgage of February 23d, 1872.
Our decree must be amended so as to recognize plaintiff’s right to recover his attorney’s fees thus stipulated.
But a reference to the act of mortgage discloses the fact that attorneys’ fees are not stipulated to or secured by the mortgage securing the payment of the note of $3000, in capital and interest; the stipulation for attorneys’ fees is contained after and outside of the mortgage clause, and hence we cannot decree that such fees are .secured by mortgage. These views,are not only supported by a. correct interpretation of the act, but are sustained by previous adjudications of this Court on a similar point.
It is, therefore, ordered that our previous decree be amended, so as to amend the judgment of the District Court, and to decree plaintiff entitled to recover of defendant attorneys’ fees at five per cent, on the sum of $3000, with interests and costs, without recognition of mortgage for such fees on the property mortgaged' to secure the note; and it is also ordered that the costs of appeal be paid by appellee, and that, as thus’ amended, our previous decree remain undisturbed and in full force.