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Appeal Bonds.

Attorney and Client.

entered judgment accordingly., ATTORNEY AND CLIENT.
denied an application for rear-
gument, which was based in part 1. The rule laid down in the
upon the ground that as the English cases relating to actions
record in the Supreme Court was by attorney against client for
defective in the respect indi- the recovery of fees, charges and
(ated, a review of the meritori- disbursements, that if part of
ous question in this court would the items in the attorney's bill
be impossible without an amend- as served are taxable at the in-
ment of the record. Held, such stance of the party chargeable
denial, being plainly a matter of under the statutes relating to
discretion, was not reviewable in taxation of such bills, the re-
this court.

Ib. maining items cannot be sepa-

rated from them in a suit to re-

cover the amount of the served
bill, is not applicable to cases
arising under our Practice act

of 1903 section 9 (in force in

this state since 1799), which re-

quires taxation of the bill before
An appeal bond not given for an service thereof. Broucn v. Har-
illegal purpose, complying sub- riot,

stantially with the statute, vol-
untarily entered into. will be 2. In a suit for recovery of an at-
held binding, although the pro- torney's bill containing both tax-
(eedings, anterior to its execu- able and non-taxable items the
tion, may have been irregular. , previous service of an untaxed
Summit v. ('oletta,

153 bill made up of such items will

not preclude recovery for items
in such bill that need not have

been taxed as a condition prece-
dent to suit.


See ('ONTRACTS, 2, 13.



A law which imposes a license fee

upon the owners of all automo-
RAILROADS, 11-13. biles using the improved public


of the state, the

amount of such fees being deter-
ASSIGNMENTS OF ERROR. mined by the horse power of the

vehicle, although it incidentally
See ERROR. 8, 9.

affects interstate commerce, is
not a regulation of such com-
merce within the meaning of the

commerce clause of the federal
constitution. Kane v. State,

l'nless a writ of attachment could

lawfuly issue against a deceased
debtor immediately prior to his
death, it may not issue against BENEFICIAL ASSOCIATIONS.
his non-resident devisee for a
debt of the deceased. Jordan v. 1. Where a member of a benefit so-

118 ciety confessed in writing to the

Bills and Votes.

Bills and lotes.




society the truth of the charge 3. In an action against the
preferred against him, which re- dorsers of promissory note
sulted in his suspension and the made in the Stat of California
imposition of a fine, which he and payable there, and endorsed
paid, he will not be heard upon for value before maturity to the
a claim for sick benefits to chal- plaintiff's testatrix in the State
lenge the validity of the by-law of New Jersey-Held, that the
under which he was suspended'l question whether the note was
upon the ground that it made negotiable according to the law
no provision for a hearing and of New Jersey was material be-
that in fact he obtained no hear- cause of its effect upon the con-
ing. Volpicelli v. Societa Vol- tract of endorsement, and that

374 unless the instrument was

gotiable the action could not be
2. Forfeitures in beneficiary certi- maintained.

ficates, dealing with property
rights, are not favored, and con- 1. The Negotiable Instruments açt
structions of written instruments (Pamph. L. 1902, p. 583) was
of that character against such approved April 4th and took ef-
result will be preferred if the feet (under Gen. Stat., p. 3195,
instrument will bear it, rather pl. 37) on July 4th in the same
than the adoption of an inter- year. By section 195 thereof it
pretation giving the opposite is. however, expressly declared
effect. Johnson v. Grand Lodge, i that "The provisions of this act

511 do not apply to negotiable in-

struments made and delivered

prior to the passage hereof."

Ileld, that this section manifests

the intent of the legislature to
1. Where

endorser, having leave entirely unaffected by the
knowledge that he is discharged act all negotiable instruments
for want of proper notice of that were made and delivered as
dishonor, promises that if the between the original parties
maker does not pay the note he prior to the passage of the act.
will, it is. in legal effect, a and the question of the negotia-
promise that either he or the bility of a promissory note made
maker will pay upon demand.. and delivered before the act was
and amounts to a waiver of the passed, but falling due after the
neglect or laches of the holder act went into effect, must be
in not giving him notice in due decided as the law stood prior
season of the dishonor of the to the act of 1902.

note at maturity. Richardson
V. Kulp,

123 3. I'nder the “Act concerning prom-

issory notes," &e.. approved
2. In an action against the March 27th, 1874 (Gen. Stat.,

dorsers of promissory note p. 2604), a promissory note made
made in the State of California parable two years after its date,
and payable there, and indorsed with interest payable semi-
for value before maturity to the annually, and containing
plaintiff's testatrix in the State clause that apon any default in
of New Jersey--Held, that the payment of the interest the
liability of the defendants upon whole of the principal and in-
the note depends upon the legal terest should become immedi-
effect of their act as determined ately due and payable at the op-
by the law of this state, where tion of the holder, and an addi-
the transfer of the note

tional stipulation that should
made. Jackintosh. y. Gibbs, suit be commenced or attorney

577 be employed to enforce payment





Board of Health.


of the note, an additional sum'! hibit the sale within the munici-
of six per cent. upon principal pality of milk from cows that
and accrued interest would be react to the "tuberculin test."
paid as attorney's fees in such

suit-Held, negotiable. Ib.

5. The action of a local board in
6. Under the "Act concerning adopting measures for the pro-

promissory notes,” &c., approved tection of public health will not
March 27th, 1874 (Gen. Stat., be set aside by the court if the
p. 2604), it was not necessary board has acted reasonably upon
that a promissory note be pre- evidence that might satisfy a
sented by a notary public for reasonable man.

payment, nor was protest,
strictly so called, necessary to 6. Regulations for the protection
fix the endorser's liability.

of the public health are within

the police power of the state and
7. Prior to the act of 1902 (Pamph. are not an illegal interference

L., p. 583), the established rule with interstate commerce if they
in this state was that notice of have a real substantial relation
dishonor of a promissory note, to a public object which govern-
when sent by mail might be ment can accomplish, and are
placed in the post-office on the not arbitrary and unreasonable
day after dishonor, allowing a and beyond the necessities of the
sufficient time after the com- case.

mencement of business hours on
that day for the preparation of

the notice.




1. Boards of health are empowered

by the act of 1897 (Pamph. L.,
p. 270), and by the Pure Food

law of 1907 (Pamph. L., p. 485),
taken in conjunction with the 1. Where it appears that lands
act of 1887 (Pamph. L., p. 80). sought to be assessed by a bor-
to prohibit the sale of milk from ough government for benefits on
diseased cows.

Borden's Milk account of municipal improve-
('o, v. Board of Health, 218 ments lie wholly below high-

water mark, and for which no
2. Whether Cows from which a riparian grant has been made

municipality is supplied with by the state; that no notice
milk are diseased, is a question pursuant to the Borough act
that may in the first instance, (l'amph. L. 1897, p. 285) has
be determined by the local board been given to the prosecutor in
of health.

16. certiorari, and that the prosecu-

tor's name does not appear in
3. In determining whether COWS the assessment proceedings-

from which a municipality is Held, that no attempt had been
supplied with milk are diseased, made to levy any assessment
the method of diagnosis adopted against the prosecutor or his
by the local board of health lands and that the writ of cer-
should be one that is well recog- tiorari should be dismissed. Un-
nized, thoroughly approved, and dercliff Co. v. Edgewater, 351
as reliable as any.


2. Where a borough proposes to
4. A local board of health may pro-.. construct water works and issue

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bonds therefor, and the case is'l does


esca pe paying the
to which the act of 1909 agreed commission by the mere
(Pamph. L., p. 457), requiring fact that he had conveyed the
the approval of the state board land before the commission was
of health, and the act of 1910 earned. Payne v. Twitchell,
(Pamph. L., p. 551), requiring

the approval of the state water-
supply commission, are appli- 2. Where a written contract pro-
cable, the approval of those vides that an agent engaged by
boards must be secured in ad- the owner to sell a farm shall
rance of the election to author- be entitled to his commission
ize the construction of the works upon the sale of the farm by
and the issue of the bonds to the agent, the owner or any
pay therefor. Wilson v. Collings- other person, the agent is en-

634 titled to receive the stipulated

compensation upon the sale of
See MUNICIPAL CORPORATIONS, 1. the farm by the owner. Dresser

v. Gilbert,




3. Section 10 of the statute of

frauds (Gen. Stat., p. 1604),
1. The doctrine of practical loca- requires a memorandum only in

tion regarding boundary lines the case of a broker or real es-
is equitable in its nature, and tate agent selling or exchanging
applies only where some dis- land for or on account of the
agreement or uncertainty exists!

Feist v. Jerolamon,
between adjoining owners as to

the true line, which results in
their agreement or acquiescence 4. It is not necessary in order that
upon a boundary line, which, un- a real estate broker should re-
der the doctrine of estoppel in cover his compensation that he
pais, cannot subsequently be should disclose the name or es-
controverted without working a tablish the pecuniary ability of
fraud. Alt v. Butz,

156, his customer where such dis-

closure would be futile owing to
2. Where the true boundary line is the conduct of the vendor. 16.

understood and conceded, and
the adjoining owners are not in 5. Whether a real estate broker is
dispute concerning it, mere per-' precluded from recovering com-
mission by one to the other to pensation from the proposed
build up to an existing building vendor by reason of his relations
considerably over the line is not with the proposed vendee, de-
in legal effect a practical loca- pends upon the facts of the case.
tion of the boundary, nor can it. A distinction is to be made be-
under the statute of frauds, op- tween the case of an agent for
erate as a conveyance of the land the vendor and a mere middle-
in controversy.

Ib. man who acts only to bring the

vendor and vendee together.




[blocks in formation]

1. One who has agreed in writing

to pay another a commission for
securing a buyer for his land


[blocks in formation]


7. The defendant employed brokers construction of the act by a state
to sell stock: the order

subsequently adopting it, but
either to "sell at 5038 or stop such construction is not a ju-
at 50," or to “sell at 3014 or, dicial construction which is to be

but not below 50, stop at 50.". read into the act er-necessitate,
There was testimony on the part under the well recognized rule of
of the plaintiff that in the trade statutory construction by the
such an order as the former state subsequently adopting the
authorized a sale at a price act.

below fifty. Held, that it was
a jury question (1) what the 6. In construing an act the spirit
actual contract was; (2)

and intent of the legislature as
whether the words meant what manifested by the entire scope
the plaintiff claimed.


of the legislation and its lan-
guage must continue.


ing a


7. Whether a common carrier ful-

filled its contract of carriage
1. A (common carrier is nol within a reasonable time, and
charged with the duty of carry- whether its non-fulfillinent was

passenger safely to his excused by the conduct of the
destination. Its duty is limited plaintiffs, and the situation cre-
to the exercise of a high degree ated by them at defendant's ter-
of care and prudence in that minal, were fact questions for
regard. Olsofrom v. Vorth Jer- the jury. C'arr v. D., L. & W'.
scy St. Ry, ('o.,
321 R. R. Co.,




2. Where there is evidence in the S. Where the plaintiff, in attempt-

case from which a jury may in-1 ing to alight from a railroad
fer an absence of assent by the passenger coach, from which
shipper to the limitation of lia-1 others had alighted before and
bility contained in the bill of after her, missed her footing and
lading. the question whether fell between the car step and
such assent was in fact given. platform of the station and was
for the jury. ('ohen V. injured, the

proof that
United States Erpress ('o., 35) other railroads constructed car

steps and platforms of a differ-
3. A three-cent fare regulation ent type, without any proof of

maintained for years by the rail- ! the existence of a recognized
way company was not ipso facto' standard type. will not charge
abrogated by the enactment of the defendant with negligence.
section 18 of the Public l'tility' Kingsley v. D., L. & I. R. R.
act. Pamph. L. 1911, p. 374.:

Pub. Serr. Ry. ('o. v. Pub. Util-
ity ('om'rx,

3639. A carrier of passengers for hire

is legally responsible for injuries
4. The effect of the enactment of happening to a passenger from
the Public Utility act

to such an accumulation of ice upon
confer upon the commission its car steps as to cause a pas-
thereby created power to deter- senger. using ordinary care, tv
mine whether such a preferential slip and fall, if sufficient previous
regulation of fare was just and opportunity has been had to re-


move the source of danger. The

duty of the carrier in such re-
5. The construction placed upon gard is not performed simply by

an act by an administrative body appointing servants whose duty
in the state where the act was it is to keep the car steps in a
first enacted may assist in the safe condition, nor is it any ex-



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