Murray, C. J., concurred.

The only difference between this case and that of Gronfier v. Min-turn, decided at this Term, consists of the point made by appellants, that there is no allegation in the declaration that five per cent, was reasonable counsel fees. Such an averment was unnecessary. The counsel fees stipulated to be paid were not the cause of the action, but like the costs, a mere incident to it, and may be fixed by the Chancellor, at his discretion, not exceeding the amount stipulated. Nor is such an allowance in the nature of a penalty, but only a provision against an actual expense to be incurred by the creditor on account of the failure of the debtor to fulfil his contract.

Judgment affirmed.