Avery

This action was brought for the foreclosure of a mortgage, and judgment was rendered therein in favor of the plaintiff for the amount of the note secured by the mortgage, and also in a certain amount for counsel fees. The defendant has appealed from that portion of the judgment allowing counsel fees, and urges in support of his appeal that it was not alleged in the complaint, or shown at the trial, that the plaintiff *567 had actually paid, or agreed to pay, any counsel fees whatever, or that she had employed any counsel to prosecute the action. It is alleged in the complaint that by the terms of the mortgage the appellant agreed to pay all costs and expenses of foreclosure, including counsel fees at the rate of five per cent upon the amount of the debt, and that the same should become due upon the filing of the complaint; and it is further alleged that five per cent is a reasonable counsel fee to be allowed the plaintiff. This allegation of the terms of the mortgage is not denied, but the defendant denied that five per cent is a reasonable counsel fee to be allowed the plaintiff, and alleged that the plaintiff had never employed any counsel to prosecute any action, and had never…