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Cornell University Library 
 KFN5082.D17 1911 
 
 Bar examinations (New York) ,a'',cl.„iioijrses 
 
 3 1924 021 906 619 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Corneii University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924021906619 
 
Bar Examinations 
 
 (NEW YORK) 
 
 AND 
 
 COURSES OF LAW STUDY 
 
 CONTAINING THE 
 
 STATUTES AND RULES OF COURT REGULATING ADMISSION 
 
 TO THE BAR IN NEW YORK STATE AND FORMS AND 
 
 INSTRUCTIONS FOR THE BAR EXAMINATIONS AND 
 
 SOME OF THE QUESTIONS, WITH THE ANSWERS 
 
 THERETO, HERETOFORE USED BY THE NEW 
 
 YORK STATE BOARD OF LAW EXAMINERS, 
 
 WITH ADDITIONAL QUESTIONS ON 
 
 THE NEW YORK CODE OF CIVIL 
 
 PROCEDURE; ALSO COURSES OF 
 
 LAW STUDY SUITABLE FOR 
 
 THE USE OF CLERKS 
 
 IN LAW OFFICES. 
 
 FRANKLIN M. D^NAHER 
 
 of the Albany County Bar 
 
 FIFTH EDITION 
 
 ALBANY 
 
 J. B. LYON COMPANY, PRINTERS 
 
 1911 
 
Copyright, 1904, 
 
 By franklin M. DANAHER. 
 
 Copyright, 1905, 
 By franklin M. DANAHER. 
 
 Copyright, 1907, 
 By FRANKLIN M. DANAHER. 
 
 Copyright, 1909, 
 By FRANKLIN M. DANAHER, 
 
 Copyright, 191 i, 
 By FRANKLIN M. DANAHER. 
 
 PRINTKRS AKD BINDERS 
 
 ALBANY, N. Y. 
 
 J. B. LYON COMPANY 
 

 
 TO 
 
 Hon. William P. Poodelle 
 
 AND 
 
 Frank Sullivan Smith, Esq., 
 
 MBMBKRS OF THK NEW YORK STATB BOARD OF LAW EXAMINERS 
 
 In recognition of their time and labor given out of a 
 
 busy professional life in successful aid of 
 
 higher education at the bar. 
 
NOTICE TO FIFTH EDITION. 
 
 The continued demand for this book, which makes us hope 
 "that it) has been of some service to aspirants for admission to 
 the Bar, justifies the issuing of ^another edition which is coin- 
 cident with the promulgation of amendments to the rules 
 regulating admission to the Bar in this State adopted by the 
 Cour't of Appeals on May 17, 1911, taking effect July 1, 
 1911. 
 
 The changes in the rules are for the betterment of condi- 
 tions at the Bar and are intended to raise the standards of 
 intelligence and morals thereat so as to enable it to retain it^ 
 historic status as the first of the learned professions. The 
 well-considered action of the Court of Appeals in strengthen- 
 ing them, as it has, but along conservative lines, so as to bar 
 none who, being worthy, desires to become admitted to the 
 practice of the law, shows that the Bar builded well when it 
 placed admission to practice, that most important factor in 
 its well-being and of so great public importance within the 
 jurisdiction of that Court. 
 
 It will serve no purpose to explain or justify the changes. 
 They -were 'asked for by the profession and granted by the 
 Court, and it will be sufficient to call them generally to the 
 ^attention of those who .seek admission to tihe Bar in l^&w 
 York on examination. 
 
 Wo changes have been made in the preliminary educational 
 qualifications. It is still the rule that no person can begin 
 the study of the law unless he is eighteen years of age, and 
 bas earned a law student's certificate or is a graduate of a 
 college or university. Concerning liie particulars of both of 
 those latter requirements application should be made to thd 
 Commissioner of Education, Capitol, Albany, IST. Y. 
 
 Applicants who are not graduates of a college or university 
 must now study law for a period of four years. Such an 
 applicant may pursue his course of law stTidy wholly by serv- 
 
 [V] 
 
vi ISToTiCE TO Fifth Edition. 
 
 ing a clerkship in tie office of a practicing attorney ; or partly 
 by serving such clerkship or partly by attending a law school ; 
 but every such applicant must serve such clerkship for a 
 perio'd of at least one year continuously either before exam- 
 ination 'by the State Board of Law Examiners or after such 
 examination and prior to admission to the Bar. 
 
 Applicante who are graduates of a college or university 
 with a registered degree must study law for a period of three 
 years subsequent to such graduation. Such an applicant must 
 pursue his course of law study wholly by serving a clerkship 
 in the office of a practicing attorney ; or wholly by attending 
 a law school ; or partly by sei-ving such clerkship and partly 
 by attending a law school. 
 
 Applicants who apply for admission on examination predi- 
 cated upon having been admitted to the Bar of another state 
 or country must have remained in such state or country as a 
 practicing attorney for not less than three years, and they 
 must study law in this state, in the manner required by the 
 rules, for one year thereafter. 
 
 The allowance of law school time is regulated admirably 
 and in a way intended to put an end to many unlawful prac- 
 tices which obtained in the manner of the allowance and cer- 
 tification of time spent in attendance upon some of the law 
 schools. After July 1, 1911, the time of study allowed in a 
 law school must 'be proved by the certificate of the teacher or 
 president of the faculty under whose instruction the person 
 has studied, under the seal of the school, if such there be, in 
 addition to the affidavit of the applicant, which must also 
 state the age at which the applicant began his attendance at 
 such law- school. Said certificate and affidavit must also 
 show that the law school prescribes the course of instructioti 
 contemplated' by the rules regulating admissions to the Bar, 
 adopted May 17, 1911, and each shall also contain the state- 
 ment that said applicant took the prescribed course of instruc- 
 tion required at said school for the degree of Bachelor of 
 Laws while in attendance thereat, and bona fide took and 
 successfully passed 'all examinations in all the subjects re- 
 quired for said degree during such period of attendance, in 
 each ease specifying the subjects in which said applicant took 
 
ISToTiCE TO Fifth Edition. vii 
 
 and passed his examinations as aforesaid, whicli proof must 
 be satisfactory to the State Board of Law Examiners. 
 
 Applicants are now required to pass a satisfactory examina- 
 tion in the Canons of Ethics adopted 'by the American Bar 
 Association and the New York State Bar Association, and an 
 applicant who has failed to pass one examination, either on 
 his entire paper or in either of the two groups into which 
 the subjects of examination are divided as set forth in the 
 rules of the State Board of Law Examiners, cannot again be 
 examined until at least four months after such failure. 
 
 We have added to the five hundred and fifty general ques- 
 tions one hundred additional Code questions. Our opinion 
 concerning the value of any so-called " Quiz " on the New 
 York Code of 'Civil Procedure is printed infra in connection 
 therewith. The Code questions were intended in the main to 
 call to the attention of the student a few of the most important 
 and more generally used sections of the Code as an aid to the 
 study of the book itself. They may help ; we hope they will. 
 
 We reiterate; this book is neither ofiicial nor semi-oflcLcial, 
 and the State Board of Law Examiners is not bound by any- 
 thing therein contained. 
 
 We are indebted ix> Leonard M. Benjamin, Esq., of the 
 Albany County Bar for much valuable assistance in the prep- 
 aration of this edition. 
 
 Albany, K Y., May 22, 1911. 
 
 F. M. D. 
 
BAR EXAMINATIONS. 
 
 PREPARATION FOR BAR EXAMINATIONS. 
 
 Whatever may be the popular opinion concerning ex- 
 aminations in general as a test for any purpose, or as a condi- 
 tion of admission to a profession or occupation, or what may 
 be the opinion in particular of applicants for admission to 
 the Bar on the same subject, the fact is patent, that as to the 
 latter a condition and not a theory confronts them in that 
 regard, and that sooner or later they must pass the ordeal 
 of an examination as to their Icuowledge and capacity in the 
 law, as a condition precedent to their admission to the prac- 
 tice thereof, and their entrance upon their life work. So, 
 it may be said, that all their labor, during many years of 
 preparation, is directed toward that absolute certainty, 
 which they approach with varying feelings of fear or con- 
 fidence, depending much upon temperament, a knowledge of 
 deficiencies, or upon that courage which comes from 
 thorough preparation, the result of industry and method in 
 their preparatory study. 
 
 If we were asked what in our opinion produced the best 
 results in law study, we should thrice repeat, as did the 
 ancient Athenian, who said that " action, action, action," was 
 the key to success in oratory, that method, method, method 
 is the only possible way of digging below the surface of the 
 world of law to unearth its treasures, or to make the slight- 
 est impression upon its ever-growing mass ; a ceaseless and 
 progressive growth that is rapidly carrying dismay and de- 
 spair to the hearts of those who realize its stupendous and 
 unconquerable results. By method we mean scientific direc- 
 tion in what and how and when to study, a direction which 
 cannot be obtained, however, outside of the walls of a prop- 
 erly constituted School of Law. To those, therefore, who 
 are struggling to obtain some knowledge of the law while 
 serving a clerkship in a law ofiice we say, do not stand a 
 moment on the order of your going, but matriculate at once 
 in some law college; the advantages which you will gain 
 thereby will repay you many fold for your possible sacrifices 
 in so doing. 
 
2 Bae Examinations and Coueses of Study. 
 
 We have written and said mueli upon the necessity of law- 
 school training as a preparation for the Bar under modern 
 conditions existing in law offices, and concerning the abso- 
 lute waste of valuable time and endeavor to obtain the re- 
 quired qualifications while serving a law clerkship therein; 
 we will say nothing further on the subject herein. 
 
 To those who cannot, by reason of their environment, at- 
 tend upon a law school we recommend a careful following 
 of the " Courses of Law Study," quasi law college curricu- 
 lums prepared at the request of the New York State Board 
 of Law Examiners, for their benefit, and the good of the 
 profession, by learned professors in the science, which are 
 printed herewith. 
 
 Bar examiners are not educators and handle only the sup- 
 posed-to-be-finished product of the schools and offices; 
 neither are they, as a rule, competent to la;y out courses of 
 study for aspiring applicants for admission, and we make no 
 pretense in that regard. It is their duty to test the capacity 
 of those who come before them for certificates as to their 
 competency in the law ; and the good they accomplish to the 
 State, to the profession, and to the possible clients, in having 
 a fair yet sufficient standard, is the justification of their 
 existence as such, and to some extent their only reward. 
 Yet, if an applicant studies only for the purpose of passing 
 his bar examination and is content with that meagre satis- 
 faction, and does not look over and beyond that slight stumb- 
 ling block in his path, to the honors and compensations of his 
 chosen profession, he is indeed short sighted and fails in 
 his duty to himself, to his profession and to his future 
 clients and enters upon the same but poorly fitted for its 
 responsibilities and great labors. He will not benefit to tho 
 limit of its possibilities and will be ever but a hewer of wood 
 and a drawer of water therein, many of whom are in the 
 profession to-day to its disadvantage. Competition is keen 
 in the practice of the law, and more so at the bottom of the 
 ladder, down in the depths among the weak, than it is :m the 
 top, among the strong, and where each will be depends en- 
 tirely upon himself. 
 
 To keep abreast with the necessary learning in the law is 
 a labor as constant and as wearying as that of Sisyphus. In 
 
Bab Examinations and Cotjeses of Study. 3 
 
 its study there is no such thing as rest ; he who does not ad- 
 vance therein each day, of necessity recedes. It is as un- 
 stable as the restless sea, and constantly developing to meet 
 the ever-changing necessities of our growing civilization. 
 Courts and Legislatures, including those of the United 
 States, are ever making and unmaking law, and amending, 
 abridging, distinguishing, differentiating and limiting the 
 same, so that to-day he who can master thoroughly any one 
 of its great subdivision, has accomplished that which but few 
 have done. The future of the practice must be one of special- 
 ization; and as difficult as it may be in the beginning to 
 obtain recognition therein, a student should select a specific 
 branch of the law and make himself proficient therein be- 
 yond the average of his fellow practitioners. His special 
 learning will sooner or later be recognized. But he should 
 not neglect the primary essentials of constant, intelligent and 
 methodical study and untiring industry in the broad fields 
 of general law, otherwise he will reap neither professional 
 nor pecuniary rewards in his chosen sphere of legal activity. 
 
 The practice of the law as a means of livelihood has been 
 revolutionized within the past decade, and the economic 
 changes of the century past have not left it unscathed. 
 Trusts which have imperially benefited the few, by reason of 
 their many consolidations of possible clients, have undone 
 many in the profession. Corporations now virtually prac- 
 tice law; they draw wills, probate them, and act as executors 
 and trustees, formerly the family lawyer's perogative; they 
 sell property and search and guarantee titles; they incorpo- 
 rate, and, when necessary, will furnish their clients with an 
 office and a ready-made board of directors ; they collect bills 
 through the pressure of unincorporated mercantile agencies 
 and the terrorisms of unfavorable financial reports ; they 
 advertise to prepare briefs, in fact, what are they not doing 
 to the financial and professional detriment of the " average " 
 lawyer ? 
 
 We are not pessimistic; the only way to avoid a danger 
 is to know it, and what we have said above is but to call a 
 halt in the enthusiasm of the average student in law, and to 
 point out a few of the pitfalls which impede his path to th'3 
 fatuous fame and wealth of the profession, and to make him 
 realize that if his studies thus far have been but for the pur- 
 
4 Bae Examinations and Coueses of Study. 
 
 pose of passing his bar examinations that lie will have much 
 to grieve for in a future of disappointment that surely awaits 
 him, unless he changes his present ideas as to the requisites 
 of learning and character necessary for success in the prac- 
 tice of the lavr. 
 
 THE SUBJECTS OF EXAMINATION. 
 
 The subjects of examination are divided into tvs^o groups, 
 viz. : Group One, " Pleading, and Practice and Evidence," 
 and Group Two, " Substantive Law," which latter includes. 
 Real Property, Contracts, Partnership, Negotiable Paper, 
 Principal and Agent, Principal and Surety, Insurance, Bail- 
 ments, Sales, Criminal Law, Torts, Wills and Administra- 
 tion, Equity, Corporations, Domestic Relations, Legal Ethics 
 and the Constitution of ITew York State. Each applicant 
 will be required to obtain 66| per cent, of correctness in 
 each Group and on his entire paper to entitle him to a certifi- 
 cate from the Board. If he obtains the required standard in 
 either Group and not on his entire paper, he will receive a 
 pass card for the Group which he passes and will not be re- 
 quired to be re-examined therein. He will be re-examined 
 in the Group in which he failed or on the entire paper, if 
 he failed in both Groups at any subsequent examination for 
 which he is eligible and for which he gives notice as required 
 by the rules. The percentage for passing is calculated upon 
 the entire number of questions contained in each Group, so 
 that strength in some subjects of the Group may compensate 
 for weakness in other subjects thereof. 
 
 All questions are of equal value except those in Pleading 
 and Practice which are rated at but half values for the 
 present;. Applicants display a lamentable lack of knowledge 
 of Pleading and Practice and Evidence and the Board in- 
 tends to hold them to a strict accountability on those im- 
 portant subjects in the future; they must be thoroughly 
 studied and fairly mastered by all who are certified hereafter 
 for admission. Each answer is read and adjudged with all 
 the care that the importance of the objects and purposes of 
 the examinations demand. The good that is in it is weighed 
 
Bae Examinations and Courses of Study. 5 
 
 and credited, and the errors therein penalized. A correct 
 answer with bad reasoning receives some credit, a wrong 
 answer is without grace. 
 
 The test is the applicant's competency to advise clients ; and 
 if he advises them wrong, what consolation is it to his un- 
 fortunate victim, that his lawyer had reasons therefor which 
 he deemed good and sufficient, but which, however, were 
 without merit and bad in law ? 
 
 HOW TO TAKE THE EXAMINATION. 
 
 The examination consists of fifty questions, twenty-five in 
 a morning session of four hours, and twenty-five in an after- 
 noon session of the same length. There is an hour inter- 
 mission between the sessions. 
 
 It must be observed that in four hours there are 240 
 minutes, which gives the applicant an average of about nine 
 minutes in which to answer each question, an important 
 factor to be taken into consideration in the distribution of 
 his time and in the problem of his being able to finish the 
 examination within the time limit, for a question not an- 
 swered is a question missed beyond hope of redemption. 
 
 The test is the applicant's ability to advise clients accord- 
 ing to New York Law, so the questions are mainly such as 
 would be put to a lawyer in his office by a client, and con- 
 sist of concise statements of facts, which may arise in the 
 affairs of life, involving propositions of law, and the appli- 
 cant is required to state what course of procedure he would 
 follow, or what would be his advice to his clients under the 
 circumstances narrated. In addition, questions of procedure 
 and evidence are submitted in the way they ordinarily arise 
 in the actual trial of cases in court, and he is required to 
 solve them substantially in the same way and as promptly. 
 
 It will be seen therefore that the examination is practical 
 and not theoretical, and being based exclusively upon the 
 rulings of the courts and the statutes of the State in which 
 he is applying for admission, his knowledge must be exact 
 and according to New York standards. The laws of our 
 sister S'tiates are as foreign to us as are the laws of England, 
 
6 Bak Examinations and Coueses of Study. 
 
 so under the practical requirements of the New York State 
 system of bar examinations it does not stand an applicant in 
 good stead to know what the law of another State or country 
 is on the particular question asked, or what the law used to 
 be or should be, provided he does not know the law as it is. 
 
 Answers that are not correct, according to New York Law, 
 are not credited, for it would be but little satisfaction to an 
 unfortunate client who has been damnified by wrong advice, 
 to be consoled by his incompetent legal adviser with the 
 statement that that which he said and his client followed 
 was at least good law in Lord Coke's time, or in Massachu- 
 setts now, or should be. the rule any way; we do not care to 
 encourage such post-mortem consolation. 
 
 The test of knowledge is the living principles of the law 
 as it obtains in New York to-day (we give no guarantees for 
 the future) and that is the law which applicants should study 
 and learn, who intend to practice their profession in this 
 State. 
 
 The examination being practical, the State Board of Law 
 Examiners wants the answers to be likewise, and not the- 
 oretical. They should be concise and to the point. The ex- 
 perience of the Board gives its members facility in deter- 
 mining the extent of the applicant's knowledge from the 
 character of his answer, and no answer, if correct, can be too 
 short. Ten to fifteen lines is ample for all purposes, beyond 
 that there is danger, especially if there be error, for that 
 grows in geometrical proportion as the answer is heedlessly 
 spun out. Write your answers first and give your reasons 
 thereafter. That is a piece of advice of practical importance. 
 It is far easier, admits of better work, and produces better 
 results to endeavor to sustain a given proposition than it does 
 to try to reach a conclusion after a long argument. The first 
 method tends to logical conciseness, the latter to wordy dif- 
 fuseness, in addition to its being the more laborious and a 
 greater consumer of the applicant's limited time, to say noth- 
 ing of the patience and good nature of the examiners called 
 upon to read what he has unnecessarily written. 
 
Bae Examinations and Courses of Study. T 
 
 Do not give information that is not asked for. All that 
 is in the examiner's mind and all that you are called upon 
 to consider is what is written in the question before you. 
 It contains every necessary element for a proper and correct 
 answer, and what is not therein stated is not involved, un- 
 less, perhaps, it be a legal principle necessarily following 
 from the circumstances narrated. The examiners ask you to 
 give your knowledge on the precise question put before you. 
 If they want anything else they will ask for it, so perchance 
 if the question be in Bailments, and you are asked what 
 particular feature of that law is involved in the particular 
 question, do not roam at will over the entire range of the 
 subject, and tell, with much display of pseudo learning, all 
 you think you know about Bailments in general, and their 
 variations and iine differences in particular. You are not 
 asked, nor required nor expected to do so. You are liable by 
 so doing, to lose sight of the point in the question and thus 
 fail to answer it, or when you come to it, you may not have 
 time to do it justice. In addition, if you go wrong, the more 
 you write the greater will be your offense, and you may be 
 justly penalized for incorrect answers that you were not 
 asked to give. 
 
 Bead the questions carefully, and endeavor to understand 
 what is involved therein. The language used is your only 
 guide; it has been carefully considered and the words are 
 used in their technical sense. Find first the principle of law 
 to which it relates, whether to Contracts, Bailments, or other 
 subject, and then apply the facts thereto, and write your 
 answer. There are no " catch " questions, they mean what 
 they say, so do not dig beneath the surface for some occult 
 meaning, if you do, you are apt to go astray. 
 
 Do not answer in the alternative unless asked to do so, nor 
 " straddle." Answer the questions squarely as you under- 
 stand them and do not endeavor to evade their requirements. 
 The examiners have sufficient experience to know from the 
 answers given whether the applicant knows what he is writing 
 about or not, and it is useless to try to deceive them by 
 shifty, noncommittal, or evasive answers. 
 
8 Eae Examinations and Coueses of Study. 
 
 THE QUESTIONS. 
 A book of " Questions and Answers " or " Quiz Book " so 
 called, can be of educational value, if properly used, other- 
 wise, it is a delusion, a snare, and a detriment, and this book 
 is no exception to the rule. If it be purchased by those seek- 
 ing to be admitted to the Bar, without possessing the neces- 
 sary qualifications to be a credit either to themselves or to 
 the profession, as a " cram," or in the hope that in the near 
 future, the questions heretofore asked by the examiners and 
 herein printed will be repeated, they will be sadly disap- 
 pointed, for if these questions or their variants are used 
 again, it will be through inadvertence, and not for want of 
 time or disposition to invent new problems for the benefit of 
 those who apply hereafter. 
 
 Books of " Questions and Answers " are not to be en- 
 couraged, and it was with great misgivings that the Board al- 
 lowed us to publish this one, but it was felt that as such 
 books would be and are used quite extensively, and that as 
 many of its questions, full of error, had been surreptitiously 
 published that this book, if its use in a proper way could bo 
 directed, might be of some educational value, and it is issued 
 from that point of view only. 
 
 We give eleven complete question papers, or five hundred 
 and fifty of the questions heretofore used by the State Boai'd 
 of Law Examiners, and the answers thereto, as the writer 
 understands them, and he is alone responsible for their cor- 
 rectness. In addition there are one hundred practical Code 
 questions, answered in the language of the Code, which wo 
 hope may be of some use to the student. 
 
 Six hundred and fifty questions may not be many, but they 
 are sufficient for the purposes for which this book is issued. 
 It is not a Vade Mecum, neither is it an Encyclopedia, nor 
 intended to be a substitute for any law book or other course 
 of study. The questions are published to give to the student 
 a fair, general idea of the quality of the questions used by 
 the State Board of Law Examiners and to afford him an 
 opportunity of practically testing his knowledge of the law 
 
Bae Examinations and Coueses of Study. 9 
 
 thereby, and to direct his attention to his deficiencies and 
 to new channels of research. If he will study, digest, and 5 
 correctly answer the questions given, he will be able to read : 
 his title clear to pass any fair and practical examination in ■ 
 law that any Board of Law Examiners, no matter how con- ; 
 stituted, can place before him. 
 
 We have made our answers concise and have cited but one 
 or two cases in support of each, for the reason that it is not 
 within our intention to write an essay nor to attempt to ex- 
 haust the law on the various questions propounded. Wo 
 have selected an authority which upholds each answer given, 
 merely as a starting point for that further and independent 
 investigation by the student, which we deem essential to the 
 proper use of the book and to get value therefrom. 
 
 We desired also to suggest the length of an answer suffi- 
 cient to satisfy the examiners, if otherwise correct. 
 
 This book should be used as would an arithmetic or an 
 algebra. The student must not imagine that he can mem- 
 orize the questions and the answers thereto and retain them 
 correctly. The technicalities and refinements of the law will 
 not permit it. The questions demand construction, such as 
 statutes require, and it is physically and mentally impossible 
 to correctly preserve the meaning and legal relation of the 
 words for use upon a future examination. Such a method of 
 study is not only unwise, but is also beyond power. The loss 
 of a single word, or the substitution of another, or its dis- 
 placement in a sentence may entirely change the legal mean- 
 ing and effect of the question, and require a different answer 
 than the one memorized. The student will use his memory 
 to recall words and not principles, and error will invariably 
 result therefrom. "No person would endeavor to learn a 
 problem in higher mathematics by memorizing the figures 
 nor without working out the processes, yet some students im- 
 agine they can learn law from a book of " Questions and 
 Answers " by following similar methods. 
 
 Our advice is to treat each question as one would a prob- 
 lem in mathematics, and solve it in writing. Bead a ques- 
 tion and write on it as you would be compelled to do at an 
 
10 Bab Examinations and Coueses of Study. 
 
 examination for ten minutes, including the time taken to 
 comprehend it, and then compare what has been written with 
 the answer given. That will give the student some idea of 
 his proficiency. But do not stop at that ; the subject having 
 been opened up, it should be pursued to a finish. Use the 
 citation given as a starting point for an investigation of the 
 entire subject. Follow it through all its subsequent career; 
 find where it has been cited, and read those cases ; read the 
 other cases cited in the opinions, no matter how far they may 
 go back; hunt for the principle in encyclopedias and text- 
 books, and brief what you find. If one desires to understand 
 a statute, or an opinion, and to retain it in memory, he must 
 digest it in writing. The labor of the process itself will 
 help to impress the learning of the principle upon recollec- 
 tion as no mere reading of it can possibly do. Make a writ- 
 ten brief on as many of the given questions as possible; the 
 applicant will then obtain benefits in the only way they can 
 be had from any book of " Questions and Answers," no mat- 
 I ter by whom compiled or written. 
 Albany, June 1, 1911. 
 
 FKAIfKLIN" M. DAl^AHER. 
 
QUESTIONS 
 
 STATE BOARD OF LAW EXAMINERS 
 
 Examination of Applicants 
 
 FOR 
 
 ADMISSION TO PRACTICE 
 
 AS 
 
 ATTORNEYS AND COUNSELLORS-AT-LAW 
 
 HELD IN AND FOR THE 
 
 STATE OK NEW YORK 
 
 WILLIAM P. GOODELLE 
 FRANK SULLIVAN SMITH 
 FRANKLIN M. DANAHER 
 
 State Board of Law Examiners 
 
EXAMINATION RULES. 
 
 (Which must be read and followed.) 
 
 1. Each applicant muat commence his answer paper with answers 
 to the following questions: 
 
 (o) What is your name, age, residence and post-office address? 
 
 (6) Where and with whom have you pursued your legal 
 studies ? 
 
 (c) What educational advantages did you have before begin- 
 ning the study of law? 
 
 2. He must write the answers of each group under the group 
 headings as the same appear on the printed question paper, commenc- 
 ing " Group 2 " on a separate sheet, but paged consecutively. The 
 answers, when completed, must follow the order of the questions as 
 printed. Do not copy the questions, but write the number of each 
 question upon the margin of the answer paper opposite the answer. 
 Write only on one side of the paper. 
 
 3. Give your reasons for each answer. Answer the questions first, 
 then give your reasons. Do not give information that is not asked 
 fof. A question not answered is a question missed. 
 
 4. The examination will be held in two sessions of four hours 
 each, except that in re-examinations in " Group 1 " and in the morning 
 session re-examination in " Group 2," the time limit will be two hours ; 
 no further tim.e will be given. No applicant shall enter the examina- 
 tion more than half an hour late, and no applicant shall leave the 
 room within half an hour after the distribution of the examination 
 papers, nor in any case until he shall have returned the same to the 
 examiner in charge. 
 
 5. As soon as an applicant has completed his answers he will tear 
 apart the sheets of paper on which they are written and write his 
 name and the number of the page on each separate sheet thereof; he 
 will then fasten the sheets together in consecutive order with the 
 brass fastener furnished for that purpose by inserting the same through 
 the upper left-hand corner of the paper as viewed, also fastening 
 thereby and thereto in front the printed quesdon paper furnished to 
 him, which must be returned to the examiner in charge, with and as 
 part of his answer paper, for unless this is done the Board will not 
 pass on his application. Before handing in his answers, the applicant 
 will fold the same as law papers are usually folded and indorse thereon 
 
 his name and the words " morning session," or 
 
 " afternoon session," as the case may be, insert- 
 ing in the blank space the name of the place where the examination is 
 held. Applicants re-examined in Groups Nos. 1 or 2 will, in addition, 
 indorse thereon their group number. 
 
 RULE VI. 
 
 (State Board of Law Examiners.) 
 
 The Board will divide the subjects of examination into two Groups, 
 as follows: Group One, Pleading and Practice and Evidence; Group 
 Two, Substantive Law. Each applicant will be required to obtain the 
 requisite standard in both groups and on his entire paper to entitle him 
 to a certificate from the Board. If he obtains the required standard' 
 in either Group and not on his entire paper he will receive a pass 
 card for the Group which he passes and will not be required to be re- 
 examined therein. He will be re-examined in the Group in which he 
 failed or on the entire paper if he failed in both groups at any subse- 
 quent examination tor which he is eligible and for which he gives 
 notice as required by these rules. (Amended June 28, 1910.) 
 
 [13] 
 
14 Bae Examinations and Coueses of Study. 
 
 / 
 
 EXAMINATION PAPER. 
 No. 1. 
 
 FORENOON — FOUR HOURS. 
 
 1. 
 
 , 1. Draw complaint, without verification, for an action for 
 adpault and battery in the County Court, demanding the full 
 ambunt of damages recoverable in that Court. 
 
 2. A brought an action against B for trespass, claiming 
 \that B entered upon his premises and polluted a well of 
 
 Vater. B answered by a general denial, and also set up 
 afGrmatively that the title to the premises was in C. On the 
 trial A proved his possession, the trespass, and his damages, 
 and rested, proving no title in himself. B offered no evidence 
 except he established title in C and rested. Evidence closed. 
 Judgment for whom and why ? 
 
 3. 
 
 3. Plaintiff's complaint, in an action at law, alleged two 
 independent causes of action which were separately stated. 
 The defendant by answer joined issue upon the facts alleged 
 in both causes of action. On the trial the Court upon the 
 whole evidence directed a verdict for the defendant, both on 
 the law and facts, on the first count. On the second count, 
 the jury found a verdict for the plaintiff of over $50. [Who 
 is entitled to costs and why ? 
 
 4. 
 
 4. A brought an action against B and O jointly for assault 
 and battery. The complaint stated a cause of action against 
 
Eae ExAMiwATioiirs Aio) CouESEs OF Studt. 15 
 
 both, and the proof, on the trial, sustained the allegations of 
 the complaint. Both B and appeared and defended the 
 action. The jury found a verdict for " $1,000 for plaintiff," 
 but the prayer for relief, through inadvertence, demanded 
 judgment only against B, who was irresponsible. was 
 responsible. Against whom could A lawfully have entered 
 judgment and why ? 
 
 5. 
 
 5. Enumerate concisely, in chronological order, (doing 
 nothing more) the necessary steps to foreclose a real estate 
 mortgage by action, where none of the defendants has ap- 
 peared. 
 
 6. 
 
 6. The law has taken hold of B and he is serving a term 
 in jail. You desire his testimony on the trial of an important 
 case. How will you obtain it? 
 
 7. A conveyed by warranty deed to B ten acres of land sur- 
 rounded on three sides by A's remaining land and on the 
 other side by land of C. B had no way of getting to or from 
 his purchase of ten acres, except to cross A's or O's land. B 
 claimed an easement hy necessity to a right of way to and 
 from his ten acres across A's land, to which A reluctantly 
 consented. B, after using the same for thirty years, bought 
 O's land : thereupon A fenced B's way across his premises and 
 forbade him longer using it. Litigation is threatened. What 
 are the rights and obligations of A and B in the contention ? 
 State your reasons. 
 
 8. 
 
 8. July 15th, A sold and conveyed by deed his farm of 
 five hundred acres to B without reservation. There were 
 fifty acres of meadow, twenty of which had been cut and the 
 hay was being cured on the ground from which it was cut. 
 Fifty cords of wood that had been cut from the woodland 
 were corded in the woods. One thousand cedar posts were 
 piled on the premises, and five hundred more were distributed 
 along the fences to replace those which had become decayed 
 or broken therein. A dispute arises between A and B as to 
 
16 Bae Examinations and Coueses of Study. 
 
 whom the specified property belongs. Each claims to own 
 aU. What do you say ? 
 
 9. 
 
 9. A and B were the owners of real estate as tenants in 
 common. B conveyed his interest to C, wife of A. A and 
 at once entered upon and occupied the entire premises to- 
 gether, and had a child bom unto them. A died intestate, 
 leaving 0, his widow, and the child, him surviving. What 
 are the respective interests of C and the child in and to the 
 entire property formerly owned by A and B i 
 
 10. 
 
 10. On January 2, 1894, A became indebted to B for rent 
 on a lease, not under seal, in the sum of $500. No payments 
 of either principal or interest were thereafter made thereon. 
 In June, 1901, B presented the lease to A in the presence of 
 two witnesses and demanded payment of the amount due 
 thereon. A said to B, "I acknowledge that lease and that 
 there is $500 and interest honestly due thereon, which I 
 promise to pay to you in three months." He has not done 
 so, and B consults you. What would be your advice under 
 the circumstances ? 
 
 11. 
 
 11. A entered into the employ of B as an expert account- 
 ant under an agreement to remain for one year at the annual 
 salary of $2,400, payable monthly. After working for six 
 months, A was offered employment by at the rate of $4,000 
 a year. He stated the facts to B and notified him of his 
 intention to quit at once, unless B paid him at the same rate. 
 B said, " I cannot afford to let you go and under Ae circum- 
 stances I will pay you the additional compensation at the 
 end of your term if you will remain with me." A said, " He 
 would." At the expiration of A's term, B discharged him 
 and also refused to pay him the additional compensation aa 
 he had agreed to, as above. A now consults you. What 
 would be your advice ? '. 
 
 12. 
 
 > 12. A and B formed a limited partnership under the stat- 
 ute. A was the special partner. Each contributed to the 
 
Bab Examinations and Cotjeses of Study. 17 
 
 capital of the new firm $40,000 in cash. The husiness did 
 not prosper and thereafter the firm failed, owing $100,000 
 to firm creditors, over and above all assets. State the r©- 
 spective liabilities of A and B tinder the circumstances dis- 
 closed. 
 
 13. 
 
 13. A and B were copartners in trade. A died. What 
 are the respective rights of A's representatives and B imder 
 the circumstances? 
 
 r4. 
 
 14. On January 10, 1900, Kichard Eoe, for value, duly 
 executed and delivered to John Doe, a paper in the form fol- 
 lowing: 
 
 Albany, N. Y., January 10, 1900. 
 For value received I promise to pay to the order of John 
 ^^oe $1,000 on his twenty-first birthday, with interest. 
 
 (Signed) Eickaed Rob. 
 
 John Doe indorsed the instrument and transferred it for 
 value to A, who failed and neglected to present it for pay- 
 ment on January 15, 1902, when Doe became 21 years old. 
 A subsequently brought an action thereon and Doe pleaded 
 as a sole defense A's neglect to present the sajne for payment ; 
 its non-protest and failure to give him notice. On the above 
 facts judgment for whom, and why ? 
 
 15. 
 
 15. A made his certain negotiable promissory note in writ- 
 ing, by which he promised to pay to the order of B the sum 
 of $1,000 three months after date for value received. B, in 
 fraud of A, altered the note and made it read $2,000, and 
 in that form it came into the hands of 0, a holder in due 
 course, not a party to the alteration. The note not having 
 been paid at maturity, C sued A thereon. The above factai 
 appearing on the trial, what should the judgment be and 
 why? 
 
 16. 
 
 16. B, a married woman, is the owner of certain houses in 
 the city of New York Her husband came to X, a carpenter, 
 
 2 
 
18 Bab Examiitatioits and Coueses of Study. 
 
 and stated that his -wife wanted some repairs made therein 
 of the value of $500, which the carpenter made. He pre- 
 sented his bill therefor to the wife who refused to pay, stating 
 that she never authorized her husband to order the same. X 
 consults you and claims that the husband had, by virtue of 
 the marital relation, the right to act for the wife in the trans- 
 action, and as her property was increased in value by the 
 repairs, the benefits of which she was reaping, she should 
 certainly pay. What would be your advice? 
 
 17. 
 
 17. X, a real estate agent, having charge of the renting 
 and repairing of a certain house, the property of A, known 
 as street number 74 First street, New York city, sent the 
 following written order to Y, a carpenter : " Repair prem- 
 ises No. 74 First street, New York city, for which I am the 
 agent in the following manner (stated) not to exceed in cost 
 $500. "(Signed) X, Agent." 
 
 The carpenter did not know who was the owner of the 
 property. He did the work in a proper manner, as requested, 
 and charged it to X, the agent, individually. X refused to 
 pay. The carpenter consults you as to the agent's liability. 
 What would be your advice? 
 
 18. 
 
 18. A was surety and B principal in a bond, conditioned 
 that C would pay $5,000 in cash to B on January 1, 1901. 
 On January 1, 1901, was unable to pay and asked B for 
 three months' additional time. B replied, "All right; take 
 it." At the expiration of the three months C did not pay ' 
 and B sued A on the bond. A knew nothing concerning the 
 transaction, and now claims that the facts disclosed dis- 
 charged him from his obligation. What do you say, and for 
 what reason ? 
 
 19. 
 
 19. A entered into a contract in writing with B, whereby 
 A was to receive from B and manufacture into cloth a certain 
 quantity of wool, the cloth to be delivered at B's warehouse 
 
Bab Examinations and Cotjeses of Study. 19 
 
 in Boston. The performance of the contract was duly guar- 
 anteed by C. Subsequently, after the delivery of the wool 
 by B, but before the cloth was manufactured, B sold the cloth 
 to D, in New York city, subject to delivery by A to D, at 
 D's store in New York. A assented to this arrangement, 
 nothing being said to about it. A failed to perform his 
 contract to manufacture and deliver the cloth. B sues C on 
 his guaranty. Can B recover? If so, why? If not, why 
 not? 
 
 20. 
 
 20. A has a judgment against B, which is a lien on a 
 building which is B's only property, and obtains upon the 
 building for his benefit a policy of insurance in X company. 
 The building bums. The insurance company refuses to pay 
 the loss and A brings suit against it. Can he recover ? State 
 the principle involved. 
 
 21. 
 
 21. A was employed by B as a clerk, and being unable to 
 obtain the wages due him he took out an insurance policy 
 upon the life of B for the amount of his claim. He then left 
 B's employ. Ten years thereafter B died, without having 
 made any payment upon the amount due A. The insurance 
 company refused to pay. A brings suit upon the policy. 
 Can he recover ? State your reasons. 
 
 22. 
 
 22. An Art Association obtained the loan of a valuable 
 painting for the purposes of an Art Exhibition, and entered 
 into an agreement in writing with the owner " to return the 
 said work of art to the ovmer at the end of the Exhibition in 
 as good condition as when loaned." The Association was to 
 pay the owner of the picture nothing for its use. The paint- 
 ing was placed on exhibition with other pictures in a gallery 
 to which the public was admitted upon the payment of an 
 admission fee. A visitor, afterward declared to be insane, 
 struck the painting with a chair, thereby doing it great dam- 
 age. The injury to the picture did not occur through any 
 fault or negligence of the Art Association. Is the owner 
 
20 Bae Examinations and Coueses of Studt. 
 
 entitled to recover from the Art Association the amount of 
 damage sustained ? Give your reasons. 
 
 23. 
 
 ■\ 23. A farmer entered into a contract with a miller under 
 which the miller was to grind at his mill a certain quantity 
 of corn and oats, owned by the farmer, mix them in certain 
 proportions and sell the mixture as horse feed. The proceeds 
 of sales were to be divided between the two, ninety per cent, 
 to go to the farmer and ten per cent, to the miller. A cred- 
 itor of the miller obtains an attachment upon the mill and 
 its contents including the horse feed above mentioned, which 
 had been manufactured but not sold. What are the rights of 
 the respective parties with reference to the feed ? State your 
 reasons. 
 
 24. 
 
 24. A bought goods from B, who warranted the same to be 
 of a certain quality. The price paid was twenty-five per cent, 
 below the real value of such goods corresponding to such war- 
 ranty. Upon delivery of the goods to A, it was discovered 
 that the goods were inferior in quality. A retained the goods 
 and brought an action against B upon the warranty. Can 
 A maintain his action, and if so, what is the measure of 
 damages ? 
 
 25. 
 
 25. A farmer sold a flock of sheep which he knew to have 
 an infectious disease known as " scab." He represented to 
 the vendee that the sheep were healthy. The vendee believed 
 and relied upon his representations and put the diseased 
 sheep in the same pasture with sheep which he had raised 
 and which were free from disease, with the result that the 
 latter became infected and diseased, and many of both flocks 
 of sheep died. The vendee wishes to bring an action against 
 his vendor. What kind of action would you advise him that 
 he can bring, and what will be the measure of damages, if 
 any? 
 
Bae Examinations and Coueses of Study. 21 
 
 EXAMINATION PAPER. 
 No. 1. 
 
 AFTERNOON — FOUR HOURS. 
 
 26. 
 
 1. On the trial of an action to recover damages for an 
 injury claimed to have been caused by reason of the defect- 
 ive condition of a trolley car and its appliances so that the 
 motorman could not readily stop the car and prevent the 
 accident complained of, the plaintiff called X as a witness 
 and offered to prove by him that the motorman told him one 
 hour after the accident that the car and its a.ppliances were 
 in an unsafe condition at the time of the accident, and that 
 he had reported its condition to the defendant on the even- 
 ing before the accident. The defendant objected to the evi- 
 dence. How should the Court rule and for what reason 3 
 
 27, 
 
 ^^ 2. In an action against a warehouseman for loss of goods 
 by negligence, the plaintiff, on the trial, was permitted to 
 give evidence under objection, exception being taken, to 
 show that both before and since the loss of his goods, certain 
 goods of other parties had been erroneously delivered from 
 the same warehouse through defendant's negligence. Plain- 
 tiff obtained a verdict. Defendant appeals, the foregoing 
 being the only exception in the case. How wUl the appeal 
 result and why? 
 
 28. 
 
 3. On the trial a material witness for the plaintiff was 
 asked on his cross-examination by the defense for the pur- 
 pose of impeachment, if when he left his last employer, he 
 
22 Bae Examiitations and Cotjbses of Studt. 
 
 did not take awaj^ some articles which did not belong to him. 
 The witness answered in the negative. Subsequently the de- 
 fense called the employer, who, under objection, was per- 
 mitted to give evidence tending to show that the answer of 
 the witness was untrue. Exception was taken. "Was it well 
 taken or not? Give your reasons and state the rule. 
 
 .,,^ 29. 
 
 4. Objections had been duly filed to the probating of the 
 last will and testament of B on the ground that at the time 
 of its execution, B was of unsound mind. A, not an expert, 
 and exceedingly illiterate, but who was a witness to the will, 
 was asked on the trial, whether or not, in his opinion, B was 
 of sound mind when he executed the will. Objection is 
 made that the witness is not an expert or qualified to answer. 
 Should the evidence be received or not? State your reasons. 
 
 30. 
 
 5. A sued B to recover damages for breach of promise to 
 marry. On the trial the court, imder defendant's objection, 
 permitted the plaintiff to prove that the defendant was gen- 
 erally reputed to be a wealthy man. Was the evidence com- 
 petent or otherwise? On what theory? 
 
 31. 
 
 6. A with felonious intent to bum the bam of B pro- 
 cured camphene and other combustibles and placed them in 
 his room and then went and soKcit«d C to go and get the 
 articles mentioned and use them in burning the bam of B. 
 promised but neither did anything to that end or ever 
 intended to. What, if any, crime is A guilty of? 
 
 32. 
 
 7. A married B, and while she, B, was living and his 
 lawful wife he married C ; then B died and afterward he 
 married D and for his'&t marriage he was indicted for. 
 bigamy. Guilty or not guilty. Give your reasons. 
 
Bab Examinations and Courses of Study. 23 
 
 33. 
 
 8. Jolm Doe was put upon trial on an indictment for as- 
 sault in the second degree against A. Doe being a witness 
 in his own behaK, on cross-examination was asked if he did 
 not, ait a given time and place, before the alleged offense, 
 feloniously break into the house of B, which he denied. The 
 prosecution then called B, who testified, against the objec- 
 tion of Doe, that the latter did commit such burglary. The 
 defendant took an exception to the ruling. Doe was con- 
 victed. He appealed. WUl the conviction stand? State 
 your reasons. 
 
 34. 
 
 9. A being the owner of and having in his possession a 
 promissory note made by B for $5,000 and interest, payable 
 to bearer, sells it to for value. He did not indorse it, 
 neither did he warrant it nor make any statement or repre- 
 sentations in regard thereto. He knew, however, that a bank 
 check of B's had been dishonored the day before for non- 
 payment, and that he had been sued on another debt, but 
 believing that B was nevertheless solvent, he made no men- 
 tion of the facts. B was not solvent and the note was not ' 
 paid at maturity. consults you. Has he a cause of action 
 against A under tie circumstances? State fully. 
 
 35. 
 
 10. A servant sued his master for negligence. On the 
 trial it appea;red that the servant was directed to do a par- 
 ticular piece of work that required special knowledge and 
 skUl on the part of a co-employee who was detailed to assist 
 him in its performance. The co-employee was drunk at the 
 time the work was done, a fact, however, unknown to the ser- 
 vant, who relying on the competency of the co-employee, 
 undertook to do it properly, and was injured because of the 
 then condition of the co-employee. The above facts appear- 
 ing both sides move for judgment. Judgment for whom, 
 and why? 
 
24 Bab Examinations and Ooueses of Study. 
 
 36. 
 
 11. A and B were tenants in common of a farm, of which 
 A was in possession with the acquiescence of B. A sowed the 
 farm to lye, and in due course of husbandry, reaped and 
 stored in his barn 1,000 bushels thereof. B Semanded one- 
 half of the lye as his share of th« annual product of the 
 farm and being refused took possession of the same, without 
 A's consent. B refused to return the same on demand. 
 What remedy has A under the circumstances? 
 
 37. 
 
 12. A drew his own will and signed it. A few days later 
 B came to his house on a visit and A exhibited the will and 
 his signature to him, and said, " B, that is my will and I want 
 l^ou to sign it as a witness," and B did so, then and there in 
 A's presence. A laid the will aside and forgot about it f oi 
 upwards of six months, when he took it to a neighbor, some 
 distance away, B not being present, and repeated his state^ 
 ment, as above, and the neighbor signed his name as a wit- 
 ness also, under B's signature. The will had no attestation 
 clause, nor did the witnesses give their respective places of 
 residence. Question arises as to the sufficiency of the execu- 
 tion of the wHL What do you say? Give your reasons. 
 
 38. 
 
 13. A married woman died intestate leaving a husband, 
 two sisters and a mother, but no descendants her surviving. 
 Her estate consisted of $100,000 in government bonds. 
 How shall it be distributed? 
 
 39. 
 
 14. The will of A gave the sum of $100,000 in four per 
 cent, government bonds to B in trust to collect the income 
 thereof and to apply $2,000 of the same annually to the sup- 
 port, education and maintenance of his infant son John; the 
 Burplus income to be added to the principal until John be- 
 came of age. After that period, John was to have the in- 
 
Bae Examinations and Coueses of Study. 25 
 
 come of the whole fund imtil he was thirty years of age, 
 at which time the trust was to cease and the entire fund 
 paid over to him. John was sixteen years old when his 
 father died. John arrives at the age of twenty-one years and 
 aska your opinion as to the validity of the trust. What 
 would be yoiir advice? 
 
 40. 
 
 15. A, while in peaceful possession of a certain lot of 
 ground under claim of lawful title, in good faith, made 
 permanent improvements thereon of the reasonable worth 
 and value of $10,000. The true owner now seeks the aid 
 of equity to establish his title. What should the court de- 
 cree as a condition of granting relief, and for what reason? 
 
 41. 
 
 16. Your client placed in the hands of his agent $5,000 
 to be invested by the latter in. bonds and mortgages. Instead 
 of doing so, the agent used one-half of the fund in the pur- 
 chase of a paid-up policy of insurance on his life in the sum 
 of $5,000, which he made payable to his wife. The wife waa 
 ignorant of her husband's fraud, and in entire good faith, 
 demands the amount of the policy after the agent's death. 
 Has your client any rights under the circumstances? If so, 
 what are they and how would you enforce them? 
 
 42. 
 
 17. A stood by and allowed B to seU and deliver, as his 
 own, A's horse to for $500 in cash. A said nothing at the 
 time for the reason that he was not requested to speak. A 
 now seeks to recover his horse from 0, and consults jou as 
 to his position. What would be your advice'^ 
 
 43. 
 
 18. A State banking corporation subscribed for the stock 
 of a railroad company having no authority under its charter 
 or under the statutes so to do. This it does in the name of 
 one A, on condition that the bank and A shall share the 
 profits. After the stock is allotted by the railroad company to 
 
26 Bae Examinations and Courses of Studi . 
 
 A, he refuses to deliver to the bank its share of the stock or 
 profits. The bank has done nothing in performance of the 
 contract. It sues A. What should be the result and whyl 
 
 44. 
 
 19. Three railroad companies of the State of New York, 
 X, T, and Z, are consolidated and merged iuto one corpora- 
 tion. AU three companies owed at the time of the consolida- 
 tion floating debts of equal amount. X Railroad Company 
 was solvent and its creditors had ample equitable liens upon 
 its property. The other constituent companies were in- 
 solvent and there was nothing out of which their unsecured 
 creditors could be paid. After the consolidation a conflict 
 arose among the creditors of the respective constituent com- 
 panies, relative to the priority of their claims. What are 
 the rights of each group of creditors with reference to equi- 
 table liens upon the property? 
 
 45. 
 
 20. A corporation sold and conveyed its real estate to A, 
 who purchased in. good faith and for full value. The pro- 
 ceeds of this sale were lost in a bad investment. The re- 
 mainder of the corporate assets consisted of personal prop- 
 erty which the stodkholders divided among themselves in 
 the proportions of their holdings in the stock of the com- 
 pany. The creditors of the company were not paid and ask 
 you whether they are entitled to recover the amount of their 
 claims out of the real estate sold to A, and the value of the 
 personal property divided among the stockholders. What do 
 gou advise? State your reasons. 
 
 46. 
 
 21. A is a resident of a country town ; his family consists 
 of a wife, a minor son, his wife's minor daughter by a f ormei 
 marriage, his wife's mother and his paternal and maternal 
 grandparents. He refuses to support his family, although ha 
 is financially able to do so, and no member of the family has 
 any other means of support. What members of the family 
 
Bae Examinations anb Coueses of Study. 27 
 
 can he be compelled by law to support, and how can the law 
 be enforced? 
 
 47. 
 
 22. A was married to B, and thereafter absented himself 
 for five successive years without being known to B to be 
 living during that time. Immediately after the period of 
 five years had passed B married 0, both acting in good faith. 
 A child was bom of the second marriage. After the birth of 
 tL ' child A returns, and A, B and 0, ask your advice as to 
 the character of the second marriage, whether the child ia 
 legitimate, and what course should be taken to protect the 
 rights of all without giving offense to law or morality. What 
 do you advise? 
 
 48. 
 
 23. Certain buildings belonging to a ward were burned 
 and A, the general guardian, collected the iosurance money 
 and without obtaining an order of the court, erected other 
 buildings on his ward's land at a cost of $2,000 in excess of 
 the amount of insurance money. The said sum of $2,000 
 was advanced by him personally, from his private funds, 
 without first obtaining an order of the court authorizing him 
 to do so. On coming of age the ward sold the entire prop^ 
 erty, but refused to reimburse A for the $2,000 advanced 
 by him. A brings a suit for his reimbursement. Can he 
 succeed ? State your reasons. 
 
 49. 
 
 24. A leased to B for a term of twenty years, his farm 
 of 100 acres of land upon the following terms. For ten 
 years the land was to be used by B solely for fanning pur- 
 poses, and A was to receive an annual rental of $500. It was 
 provided in tiie lease that at the end of the tenth year for 
 a period of ten years thereafter, in addition to the first period 
 of ten years, B was not to work the land as a farm but was 
 "to search for, explore, excavate, dig and oarry away iron 
 ore on and from said lands " with the " right to erect thereon 
 all constructions and appliances necessary for mining, wash- 
 ing, loading and moving iron ore." A was to receive from B 
 a royalty on aU ore mined and shipped of twenty-five cents 
 
28 Bab Examinations and Coiteses or Study. 
 
 per ton, A dies, and his heirs claim that the lease is in- 
 valid imder the Constitution of the State of New York. 
 Your advice is asked. What do ^ou advise? 
 
 60. 
 
 25. Your advice is asked upon the constitutionality of a 
 bill proposed to be introduced in the Legislature entitled as 
 follows: 
 
 " An Act discontinuing the highway passing across the 
 lands of John Doe in the town of Macedon, ia the county of 
 Wayne to the Erie canal, and for the allowance of the claim 
 of John Doe against the State of New York for the main- 
 tenance of said highway." What do you advise? State youi 
 reasons. 
 
Bae Examinations and Coukses of Study. 29 
 
 EXAMINATION PAPER. 
 
 Wo. 2. 
 FORENOON — FOUR HOURS. 
 
 51. 
 
 1. Draw a complaint in an action in the Supreme Court 
 in favor of the payee and against the maker of a promissory j 
 note. Omit verification. 
 
 52. 
 
 2. State what must he shown in order to ohtain a writ of 
 replevin at the time an action to recover a chattel is com-'| 
 menced in the Supreme Court 
 
 53. 
 
 3. On the trial of an action for breach of a contract in\ 
 which the defendant did not plead as a defense the statute of 
 frauds, the testimony established, without objection, that the 
 contract was void under the statute. At the close of the testi- 
 mony the defendant moved for judgment on the ground that 
 the contract was void. What should the ruling of the court 
 be, and why? 
 
 54 
 
 4. How would you compel a person to produce upon a 
 trial or hearing a book of accoimt ? 
 
 55. 
 
 5. In an action for goods sold and delivered the defend- 
 ant's answer pleaded payment as a sole defense. On the trial 
 both sides demanded the right to open the case to the jury 
 and to adduce his evidence first. The court decided in favor 
 of the plaintiff. The defendant excepted and appealed from 
 
30 Bab Examhtatioits anx> Coueses of Study. 
 
 a judgment in favor of tte plaintiff and urged the above ex- 
 ception as the sole reason why it should be reversed. What 
 should the ruling of the Appellate Tribunal be, and why ? 
 
 56. 
 
 6. On June 2, 1895, A duly docketed a judgment in the 
 Erie county clerk's office against B for $5,000 damages and 
 costs. State under what circumstances you can issue an exe- 
 cution on the judgment in 1903, B still residing in Erie 
 county. 
 
 57. 
 
 7. A executed and delivered to B a mortgage, dated June 
 1, 1900, on his real property for $2,000 in cash loaned to 
 him at the time. B never recorded the mortgage. Atj^iat 
 time A was justly indebted to X in the sum of $4,000, which 
 he could not otherwise pay, except by deeding to him the land 
 in question. X searched the records and finding the premises 
 free and clear of all incumbrances and acting in entire good 
 faith and without knowledge of B's mortgage, took a deed 
 dated August 1, 1900, of the same from A in full payment 
 and satisfaction of his debt, which deed he put on record at 
 once. B then learned of X's deed, and that it was recorded, 
 and thereupon consults you as to his rights in the premises. 
 The fair market value of the property is $4,000. What 
 would be your advice, and why ? 
 
 58. 
 
 8. A tenant in possession of a factory under a lease took 
 out an engine, the property of the landlord, which was on the 
 premises when hired and included in the lease, and erected 
 on the foundation from which he took the old, a new engine 
 for the purpose of carrying on his legitimate business upon 
 the demised premises. The tenant's term is about to expire 
 and he wishes to remove from the premises the new engine 
 and to replace the old one where he found it which Tie can do 
 without injury to the premises. The landlord claims title to 
 the new engine, and forbids its being taken away. The 
 tenant consults you. What do you say ? 
 
BaE ExAMIJiTATlOH'S AUTD COUKSES OF StUDT. 31 
 
 59. 
 
 9. A died intestate leaving real property. His only Leira- 
 at-law him surviving are a grandchild, who is a son of a 
 deceased son, and three grandchildren, daughters of a de- 
 ceased daughter. How will A's real estate descend ? 
 
 60. 
 
 10. A and B were members of the same social club. Dur- 
 ing A's absence in Europe, B learned that A was " posted " 
 at the club for non-payment of dues and B paid the amount 
 in full, without any request by A to do so. Upon A's return 
 B informed him of the payment made for his account and A 
 promised B to reimburse him therefor, but neglected to do 
 so. B brings an action against A to recover the amount. A 
 defends. Who wins and why? State fully with your 
 reasons. 
 
 61. 
 
 11. Two members of the New York Produce Exchange, 
 X and T, entered into a contract in writing, July 1, 1902, 
 whereby X purchased of Y 10,000 bushels of wheat, at the 
 then market price for delivery January 1, 1903, but the con- 
 tract provided that both parties waived the actual delivery 
 of the wheat, and that on January 1, 1903, settlement should 
 be made by the payment by X to Y of the amount of any 
 decrease in the market price of the wheat, and Y should pay 
 to X, the amount of any increase thereof. January 1, 1903, 
 the price of wheat in the market was ten cents per bushel 
 higher than it was July 1, 1902. X demands from Y the 
 payment to him of $1,000. Y consults you as to his liability. 
 What is your advice to him. State fully with your reasons. 
 
 12. X and Y, under an agreement in writing, entered into 
 a copartnership as millers, under the firm name of X & Y. X, 
 without the knowledge of Y, purchased of A a quantity of 
 lumber for which he gave his individual note payable to the 
 firm and indorsed by him in the name of the firm. The 
 lumber was shipped to X individually in accordance with his 
 order. When A sold the lumber to X and took the partner- 
 
32 Bab Examinations and Ooueses of Study. 
 
 ship security, he did not know of the limitation of the part* 
 nership business to milling. The note was not paid at ma- 
 turity and A brings an action against the firm of X & Y 
 upon the firm indorsement. Can he recover? If so, why? 
 If not, why not ? 
 
 63. 
 
 13. A and B were copartners and duly dissolved their co- 
 partnership. Thereafter D, who held a claim against the 
 firm which was barred by the statute of limitations, obtained 
 from A, in the name of the firm, a written acknowledgment 
 of and promise to pay the debt. D brings an action against 
 A and B for the amount of the claim and B defends. Who 
 wins and why ? State fully. 
 
 14. A made his promissory note to B, who indorsed the 
 same to D for value, after forging thereon the indorsement 
 of 0. D indorsed the note to E for value, before maturity, 
 but "without recourse." Upon the maturity and non-pay- 
 ment of the note, E gave due notice to all whose names ap- 
 peared as indorsers, but learning that A and B are insolvent, 
 and that O's indorsement was forged, asks you whether he 
 has a cause of action against D. What do you advise him and 
 why? State fully. 
 
 65. 
 
 15. A promissory note was executed by A to B for an 
 illegal consideration. B indorsed the note to C, who had 
 notice of the illegality but did not participate in it; then 
 indorsed it to D, a bona fide holder for value. Upop. the 
 maturity of the note paid the amount thereof to D and 
 took irp the note, and asks you whether he can recover thereon 
 against A, the maker of the note. What do you advise him, 
 and why ? 
 
 66. 
 
 16. A, the owner of a restaurant, employed B to manage 
 the same, but strictly forbade him to buy supplies on credit. 
 sold B supplies on time, not knowing of A's connection 
 with the business, relying solely upon B for payment. B 
 did not pay tho amoxmt due him, and upon learning of A's 
 
Bab Examinatiows and Coubsbs of Study. 33 
 
 ownership of the restaurant brings an action against A to 
 recover the amount of indebtedness incurred by B. Can he 
 recover ? Give your reasons. 
 
 67. 
 
 17. The X Co., a mercantile agency, entered into an agree- 
 ment with A to furnish him, through B, its agent, informa- 
 tion concerning the financial standing of C, a merchant. B, 
 without the knowledge of the X Co., knovdngly gave to A 
 false information concerning Cs financial condition, with 
 intent to deceive A and benefit C. A relied upon the in- 
 formation and gave C credit, thereby sustaining loss. A 
 brings an action against the X Co. to recover the damages 
 sustained by him. Can he recover? If so, why? If not, 
 why not ? 
 
 68. 
 
 18. A believing B to be of age, became his surety to C 
 for the payment by B of the purchase price of a valuable 
 horse, sold and delivered to him by C. B refused to pay. 
 In an action brought by C against B, the latter successfully 
 defended on the ground of infancy. C then sued A, the 
 surety, on his undertaking, to collect such purchase price. 
 A defends on the ground of B's contract being void by reason 
 bf his infancy. Judgment for whom, and why ? 
 
 69. 
 
 19. A and B made their joint promissory not© for $5,(K)C 
 to C, with D as surety. Upon the maturity of the note A 
 offered C $100, if he would release him and look to B and 
 D, who were solvent, for payment of the note. C accepted 
 the offer and executed to A a release Jn writing. The note 
 was not paid and C brought suit upon it against B and D 
 who ask youT advice. Have they or either of them a good 
 defense ? State fully, with your reasons. j,'' 
 
 70. 
 
 20. A policy was issued on the Ufe of A, payable upon his 
 death " to his wife." Subsequent to the issuing of the policy, 
 A divorced his then wife for adultery. A subsequently mar- 
 
34 Bab Examhtatioits and Coueses of Studt. 
 
 ried O, who was his wife at the time of his death. The first Q 
 wife is also alive and claims the proceeds of the policy. The 
 question arises to whom should the policy be paid? Give 
 your reasons for your answer. 
 
 71. 
 
 21. The X Insurance Company, by its agent, issued a policy 
 of $10,000 against loss by fire, upon B's automobile factory. 
 The policy provided that " if a building is insured that is on 
 leased land, the same must be specifically represented to the 
 company, and expressed in this policy in writing; otherwise 
 the insurance shall be void." B's factory was on leased lands, 
 and that fact was not expressed in the policy, no reference 
 being made thereto, but the company's agent knew of the 
 fact when he issued the policy. A loss from fire occurred 
 during the life of the policy, and the company disputes its 
 liability, claiming that the policy was void on the groimds 
 stated. B sues, and the' company defends. Judgment for 
 whom, and why ? 
 
 72, 
 
 22. A allowed B the use of his valuable family horse for 
 the day without pay. B drove to a neighboring village, and 
 stopping at the hotel for dinner, intrusted the care of the 
 horse to a hostler, through whose negligence the horse was so 
 badly injured as to be worthless. The hostler and his land- 
 lord are both irresponsible. Who must stand the damage? 
 Give your reasons. 
 
 73. 
 
 23. A made a contract with B, a boarding-stable keeper, 
 to take, feed and care for his two horses for four months for 
 compensation. During the time B hitched one of the horses 
 to drive on his own business, without A's knowledge or con- 
 sent, and while so driving, with no fault on his part, he was 
 collided with by a nmaway horse, in which collision, he, B, 
 was badly injured, and the horse he was driving was killed. 
 During his absence his stable took fire and burned, killing 
 the other of A's horses, as well as several of B's, and destroy- 
 ing all of his other property therein, without B's fault or 
 
Bab Examinations and Coueses of Study. 35 
 
 negligence.; What, if any, is B's liability to A ? State your 
 reasons, and the relations sustained between A and B. 
 
 74. 
 
 24. A, knowing that he was insolvent, fraudulently pur 
 chased of, and received from B, 100 dozen of knit goods on a 
 credit of three months. A was bona fide indebted to at 
 the time, who was also engaged in the knit-goods business. 
 purchased of A the goods in question at a fair value to 
 replenish his stock, the purchase price to be applied on his 
 antecedent debt. At the time purchased and received the 
 goods, he had no knowledge of A's insolvency, but believed 
 him to be otherwise, and acted in good faith. The next 
 day A was closed upon executions. B, who has not received 
 pay for his goods, consults you. What do you advise him, 
 and for what reasons ? 
 
 75. 
 
 25. An agent "with express authority to sell goods, not to 
 be manufactured, warrants them to be equal to a sample 
 exhibited. Kelying on the warranty, A purchases. The 
 goods were not equal to the sample, and there was a breach 
 of the warranty to A's damage in the sum of $5,000, to re- 
 cover which he brings action. On the trial it was proven 
 that the agent had no express authority to make the war- 
 ranty, which fact, however, was unknown to A. On the 
 above facts both sides rested, and moved for judgment. Judg- 
 ment for whom, and why 8 
 
36 Bae EXAMIlfATIONS AND CoUESES OF StUDT. 
 
 EXAMINATION PAPER. 
 No. 2. 
 
 AFTERNOON — FOUR HOURS. 
 
 76. 
 
 1. In an action brought to recover the value of certain stone 
 used in the construction of a bridge on defendant's road, 
 the defense was that the stone was sold and delivered to X, 
 who had the contract to build the bridge and to furnish the 
 materials. Plaintiff offered to prove that the stone in ques- 
 tion was drawn and delivered under the direction of A, 
 defendant's chief engineer, and his promise to pay on behalf 
 of the defendant. Objection was made to the testimony 
 because of want of proof of the engineer's authority. Plain- 
 tiff then offered testimony to prove a previous similar pur^ 
 chase of cement used in the construction of the bridge, 
 which was paid for by the defendant. Objection is made 
 to this testimony. What should the ruling of the Court be^ 
 and why? 
 
 77. 
 
 2. At the time of the execution of a lease in writing, un- 
 der seal, wherein the landlord let and rented certain prem- 
 ises to B for a term of five years, the landlord orally agreed 
 that if the premisea next, adjoining the leased property 
 should be destroyed, at any time during the term, that the 
 tenant was authorized to terminate the lease, but no such 
 clause was inserted therein. The premises next adjoining 
 was destroyed during the term and the tenant elected to 
 end the lease and moved out, after notifying the landlord 
 and paying his rent up to the time he quit. The landlord 
 thereupon sued the tenant for the balance of the rent re- 
 
Bab Examinations and Coubses of Study. 37 
 
 served by tke lease. On the trial of the action the tenant 
 offered to prove the landlord's oral agreement made at the 
 time the lease was executed. Objection was made. What 
 should the niling of the Court be, and why? 
 
 78. 
 
 3. On the trial of an action, involving questions of pedi- 
 gree, the plaintiff offered to prove by A, that he heard the 
 father of B, the defendant, who is at the time of the trial 
 residing in Europe, state, imder circumstances as to pre- 
 clude any presumption of interest or bias, that B, hia son, 
 was bom in New York city on March 10, 1876. The ques- 
 tion as to the date of B's birth being material to the issue, 
 should the Court admit or exclude the testimony on the 
 state of facts above presented, objection having been made 
 thereto. State your reasons. 
 
 79. 
 
 4. On the trial of an action for divorce, founded upon 
 an allegation of adultery, the husband, who was the plaintiff, 
 called his wife, who was the defendant, as a witness in his 
 
 ' behalf. The corespondent, who was a party to the ac- 
 tion, objected to her being sworn as a vntness on the ground 
 that she was not competent to testify. State the rule gov- 
 erning the competency of the wife under the circumstances. 
 
 80. 
 
 5. On the trial of an action for damages for causing 
 the death of plaintiff's intestate by the collapse of a bridge 
 after much testimony had been given describing the bridge 
 and its condition, a competent engineer was called as a wit- 
 ness by the plaintiff, and he was asked, after stating that 
 he had inspected the bridge immediately after the accident, 
 "What, in your opinion, caused the bridge to collapse?" 
 Objection is made to the question. What do you say? Give 
 your reasons. 
 
 81. 
 
 6. A burglar, while engaged in burglarizing B's house, 
 without a design to effect death, but solely in aid of his es- 
 
38 Bar Examinations and Coueses of Study. 
 
 cape, shot at B and killed 0, a bystander. Of what crime 
 is the burglar guilty? State your reasons. 
 
 82. ^-_ 
 
 7. A, B and were jointlyj indicted for a misdemeanor. 
 You appear for A, and on the trial demand that he be tried 
 separately. The district attorney objects and the Court de- 
 cides against you. The three are tried together and all 
 found guilty. Error is predicated on the decision of the 
 trial court. Should the conviction stand? If so, why so, 
 if not, why not? 
 
 83. 
 
 8. A, in the daytime, feloniously took from in front of 
 B's store, where the same was displayed, an overcoat of the 
 value of $10, B's property, and, on being pursued by officers 
 of the law, was aided to escape from arrest by 0, who knew 
 that A had stolen the coat. Of what crime is O guilty of, 
 if any? If not any, why not? 
 
 / . **• . 
 
 J^ 9. Doe and Roe, meeting on a highway, had a dispute. 
 
 y Doe, while standing within striking distance of Eoe, lifted 
 
 an axe which he was carrying, as if he was about to strike 
 
 Roe with it, at the same time saying to Roe: "I will brain 
 
 you vrith this axe," but desisted and did not strike. Roe 
 
 consults you as to whether under the circumstances he has 
 
 a cause of action against Doe. What do you advise? Give 
 
 your reasons. 
 
 85. 
 
 10. A and B were the owners of adjoining farms. A's ox 
 gored B's ox through the fence which separated the two 
 farms, causing the death of B's ox. A's ox was not jknown 
 to be vicious and there was no negligence on the part of 
 either A or B in properly maintaining the division fence. A 
 and B both consult you and ask upon which of them the 
 loss of the ox must fall. What do you advise them, and 
 why? State fully. 
 
 86. 
 
 11. A farmer owned a farm which was crossed by a rail- 
 road track over which was the usual farm crossing, with a 
 
Bab Examinations and Coueses of Stitdt. 39 
 
 gate in the fence on either sidei. While attempting to drive 
 a flock of sheep across the railroad track upon the farm 
 crossing, the sheep bolted and ran along the railroad track. 
 A train approached, seeing which the farmer went upon the 
 track to rescue his sheep from destruction and was himself 
 struck by the train and killed. Upon the trial of an action 
 agaiast the railroad company, brought by the wife of the 
 farmer as administratrix, to recover damages sustained by 
 his death, the only question at issue was the alleged con- 
 tributory; negligence of the farmer. Was the plaintiff en- 
 titled to recover? State fully, with your reasons. 
 
 87. 
 
 12. A, a minor, having a natural father and mother, B 
 and 0, was duly adopted by D. A's natural father, B, died 
 intestate, leaving an estate of $12,000 in cash. He was 
 survived by A and E, a daughter, and by 0, his widow, 
 natural mother of A and E. Immediately after the death 
 of B and before his estate was administered A died intestate. 
 Who are entitled to share in B's estate, and what is the 
 amount to which each is entitled? 
 
 88. 
 
 13. Two farmers, A and B, each owning 100 acres of land, 
 exchange their estates by mutual conveyances in which their 
 wives do not join. A dies intestate. His widow claims 
 dower in both estates. What are her rights? State fully, 
 with your reasons. ^ 
 
 89. 
 
 14. A citizen of New York, who was a soldier in the 
 United States army, was fatally shot in a battle with Indians. 
 Immediately thereafter and before his death on the field 
 of battle, realizing that he must die, and having no facili- 
 ties for writing a wiU, he stated to three comrades that it 
 was his will that all his property should go to his sister, 
 Mary, and requested them to put it in writing and witness 
 the same at the first opportunity, with which request thej] 
 complied. A contest has arisen between Mary, the sister, 
 and John, the brother, of the deceased, Mary claiming to 
 
40 Bab Examinations and Coueses of Studt, 
 
 take all the property of tHe deceased brother, and Johin 
 claiming half of the property under the statute of distri- 
 bution. iWho wins and why? 8tate fully. 
 
 90. 
 
 15. A was the owner of a fine farm of 100 acres of land, 
 with good buildings, capable, under proper management, of 
 paying the interest on a valuation of $10,000, which sum 
 the farm was reasonably worth. A was induced by B to 
 adl tn'm the farm for $1,000, which sum B paid to A in 
 cash and took possession. A, moved by the injustice of 
 his act to his family tendered to B the $1,000 paid by him 
 and demanded the reconveyance of the farm to him and 
 brings a sxdt to set aside the sale on the ground of inade-- 
 quacy of consideration. In whose favor will judgment be 
 granted? Give your reasons. 
 
 91. 
 
 16. A widow had four children, all of whom, except a 
 son, A, were minors. Her real estate was encumbered by a 
 mortgage, and, being unable to pay the iaterest, she con- 
 veyed the same to A without consideration in pursuance 
 of a parol agreement by A to hold the same for the benefit 
 of the children, including himself. A was to have the 
 accruing rents and his board in the family, and was to pay 
 the interest on the mortgage and the taxes on the property. 
 The widow died. A continued to perform his agreement 
 for some time thereafter. He finally sold the premises 
 and with the proceeds of the sale purchased other real es- 
 tate and took title in his own name. He thereupon repu- 
 diated his parol agreement and claimed to be the sole owner 
 of the property. Have A's brothers and sisters any remedy 
 against him? H so, what? Answer fully, stating your 
 reasons. 
 
 B2. 
 
 17. A executed a mortgage to B for $5,000, which was 
 usurious, in that A received from B but $4,000. After pay- 
 ing the interest on the mortgage for some years A died, 
 leaving a wiU whereby he devised the mortgaged lands to 
 
Bae Examinations and Coueses of Studt. 41 
 
 0. aska r^ou how he can rid hia land of the mortgage 
 without paying it off. [What is your advice to him? Give 
 your reasons. 
 
 93. 
 
 18. The X corporation, being insolvent, B, its president, 
 well knowing its insolvency, procured A, his wife, to insti- 
 tute suit to recover judgment on a past-due promissory note 
 of $5,000, given by the corporation to her, for value, which 
 she did, and recovered judgment by default. You are con- 
 sulted as to the validity of the judgment. What do you ad- 
 vise, and why? 
 
 94. 
 
 19. X was a corporation organized for the purpose of the 
 manufacture and sale of beer and malt. Y, one of its 
 directors, was required to furnish a surety for the payment 
 of the rent of the house which he rented of A. In pursu- 
 ance of instructions by resolution of the board of directors, 
 unanimously passed, the X corporation, by its authorized 
 officers, became such accommodation surety, for Y, who 
 failed to pay the rent when due, whereupon A sued the X 
 corporation as surety to recover such rent. If you were 
 consulted, what would you advise as to X corporation's lia- 
 bility; and, if you defended, upon what ground would you 
 base your defense? 
 
 95. 
 
 20. The board of directors of a domestic corporation, 
 which had no surplus profits coming from its businesSj 
 borrowed on the notes of the corporation $50,000, which 
 was used in making dividends on its capital stock, pursuant 
 to a resolution of the board, two of its seven directors duly 
 dissenting. Certain creditors of the corporation consult you 
 as to the legality of the transaction, and what and against 
 whom, if anj, liability exists therefor? What do gou advise? 
 
 98. 
 
 21. A wife procured an insurance on the life of her hus- 
 band for $7,500, payable to her upon his death. The an- 
 nual premium therefor was $750, which was paid by the 
 husband out of his own property. The husband died leav- 
 
42 Bae Examinations and Coueses of Study. 
 
 ing no property, but debts to the amoimt of $5,000. There 
 are $7,500 due from the insurance company upon the policy 
 aforesaid. To whom will it go? 
 
 97. 
 
 22. A was the illegitimate child of B and C. After its 
 birth B and intermarried, and thereafter B, the father, 
 died intestate, leaving 0, his widow, and A, the child, and 
 X, his father, hiTin surviving. He died leaving both real 
 and personal property. To whom and in what proportions 
 will the property descend and be distributed? Answer 
 specifically. 
 
 98. 
 
 23. A husband acquired $10,000 in property from his 
 wife by antenuptial contract. After the marriage the wife 
 became indebted to X in the sum of $5,000. She is insol- 
 vent, and her husband refuses to pay the debts. What are 
 the husband's duties and responsibilities in the premises i 
 
 99. 
 
 24. The Legislature of the State of New York passed an 
 act prohibiting and subjecting to punishment as a crime the 
 selling of tickets for passage on vessels or railroad trains, 
 by any person except common carriers and their specially 
 authorized agents. Is the act constitutional or unconstitu- 
 tional ? State fully your reasons. 
 
 100. 
 
 25. The Legislature passed an act authorizing the X 
 Street Eailway Company to construct and operate its road 
 along and through a public highway, to the center line of 
 which the abutting owners had title, provided only that the 
 consent of the commissioner of highways in that district 
 be obtained by the company, which was done. In pursuance 
 of the act the railway company has begun the construction 
 of its road. The abutting owners desire, if possible, to pre- 
 vent such construction and consult you. Is there any relief ? 
 What advice would you give them? What constitutional 
 provision is involved ? 
 
Bae Examinations and Courses of Study. 43 
 
 EXAMINATION PAPER. 
 No. 3. 
 
 FORENOON — FOUR HOURS. 
 
 101. 
 
 1. Tour client hands you a promissory note for suit Draw 
 a verification to a complaint thereon to be made by yourself 
 as plaintiff's attorney. 
 
 102. 
 
 2. A has a cause of action against B which ■will outlaw 
 in a day. He desires you to sue thereon at once. Upon 
 inquiry made at B's place of residence you are informed that 
 he is absent from home and will not return for thirty days. 
 You cannot learn his present whereabouta. [What could 
 you do under the circumstances ? 
 
 103. 
 
 3. "What is an injunction order^ and in what cases may 
 it be granted in an action ? 
 
 104. 
 
 4. Tou serve a verified complaint in an action on a 
 promissory note made by the defendant. He answers by a 
 verified general denial. It is certain to a demonstration that 
 his answer is false, and you can procure and serve many 
 affidavits to establish that fact. Can you have his answer or 
 defense stricken out on motion? Give your reasons. 
 
 105. 
 
 5. How and when must a subpoena duces tecum be 
 served to compel a person who lives fifty miles from the court- 
 house to produce upon a trial a book of account ? 
 
44 £aB EZAICWATIONS AND CoiTBSBS OF SxTJDT. 
 
 106. 
 
 6. On the trial of a civil action in a court of record, 
 how many jurors may each party challenge peremptorily i 
 
 107. 
 
 7. The lease of a store provided that the landlord would 
 make all necessaryj repairs. A skylight became out of repair 
 during the term and for a number of days because of it, rain 
 leaked through on the tenant's stock of silk directly xmder 
 the same. He notified the landlord, who promised to make 
 the repairs, but did not. The landlord subsequently sued 
 for rent and the tenant set up as a counterclaim thereto the 
 loss and damages sustained by reason of the injury to his 
 property. What is your opinion as to the rights and reme- 
 dies of the parties to the action ? State them. 
 
 108. 
 
 8. A devises a piece of real property to his son B for life, 
 with remainder over to C on B's death, with power to B, dur- 
 ing his life, to sell the same and devote the proceeds to hia 
 own use. A creditor has obtained a judgment against B 
 and is about to sell the property under an execution. C con- 
 sults you. What are his rights and remedies, if any i 
 
 109. 
 
 9. A testator devised to his executors in trust, his certain 
 farm, with directions to collect and pay over the net income 
 thereof to his five children during their joint lives and on the 
 death of the survivor to sell the same and to distribute the 
 proceeds as designated, giving and granting to his said ex- 
 ecutors power at any time in their discretion diiring the 
 continuation of said trust, to sell the farm and make an im- 
 mediate distribution as therein provided for. Question arises 
 as to the validity of the trust. What do you say ? Give your 
 reasons. 
 
 110. 
 
 10. A, a man thirty years of age, who had ceased to be a 
 member of the family of B, his father, a wealthy man, while 
 
Bab EzAMiNATioisrs and Coxtbses of Stui>t. 45 
 
 traTeling, became sick, and being without funds and in great 
 distress, was properly cared for at the expense of 0, a citizen 
 of the place where he then was. After A recovered and all 
 of his expenses had been paid by C, B wrote a letter to 0, 
 promising to pay such expenses. B did not pay the expenses 
 and sues him for the amount thereof. Judgment for whom 
 and why ? State your reasons. 
 
 111. 
 
 11. A farmer. A', was indebted to B, in the sum of $100. 
 He sold to 200 bushels of oats at 50 cents per bushel. 
 paid A no money for the oats, but promised to pay B the 
 $100 which A owed him therefor. This was satisfactory to 
 B. C did not pay B and B sues 0, who defends on the ground 
 that he has never had any dealings with B and owes him 
 nothing. Who wins, and why ? 
 
 112. 
 
 12. A and B were co-partners doing business under the 
 firm name of A, B & Co. A was indebted to upon a per- 
 sonal matter not connected with the business of the firm, and 
 when C pressed A for payment, he gave to C for the amoimt 
 of his debt his promissory note, payable to the order of him- 
 self, which, without consulting B, he also indorsed in the 
 partnership name. The note was not paid at maturity and 
 the firm received notice of presentment and non-payment. 
 An action is brought against A, B & Co., as indorsers, and B 
 consults you. What do you advise him? State fully. 
 
 113. 
 
 13. A and B are co-partners. A is satisfied that he is en- 
 titled to receive from the profits of the firm a large amount of 
 money which is in B's hands, and which he desires to obtain 
 as soon as possible. He has demanded the money from B, 
 who refuses to pay it over. He desires you to bring an ac- 
 tion against B to recover the amount. What do you advise 
 A? State fully. 
 
46 Bab Ezamhtatioits Ain) Cotxesbs ov Study. 
 
 114. 
 
 14. A was the holder of a promissoiy note, of which B waa 
 the maker and C was the indorser. Before the maturity of 
 the note, asked A to let the note run another year, to which 
 A replied that he would do so if C would " let his name be 
 on it, and let it he as it was." To this assented. At the 
 maturity of the note, A did not present the note for payment 
 nor give notice to C of non-payment. At the end of the year 
 the note was not paid and A brings suit against as indorser. 
 C defends upon the ground that he was discharged as indorser 
 by failure of presentment and notice and that his assent to 
 the extension of time was without consideration. Who wins ? 
 Why? 
 
 115. 
 
 15. On the 1st day of February, 1896, A made his promla- 
 sory note for $1,000, with interest, payable to the order of 
 B, on demand. B demanded payment February 15, 1902, 
 and payment being refused, he brings suit against A. A de- 
 fends, setting up the statute of limitations. B insists that 
 he had a reasonable time within which to demand payment 
 of the note before the statute of limitations began to run- 
 Judgment for whom ? State your reasons. 
 
 116. 
 
 16. A applied to B for a loan upon bond and mortgage. 
 B referred the matter to his agent, C, with instructions to 
 examine the title to the real estate and approve or disapprove 
 the loan. C found the record title to be in A, and clear from 
 incumbrances, but was informed by A that he had theretofore 
 executed a deed of the real estate to D as security for a loan, 
 but that D had withheld the deed from record and had per- 
 mitted A to remain in possession of the premises. C col- 
 luded with A to keep the knowledge of the prior unrecorded 
 deed to D from B, and made a report to B, approving the 
 loan. B made the loan and recorded his mortgage. Subse- 
 quently, D put his deed on record. B begins a foreclosure of 
 his mortgage. D defends, alleging that the notice of his deed 
 given to B's agent, 0, was notice to B. Judgment for whom, 
 and why ? 
 
Bab Examinations and Coubses ov Study. 47 
 
 117. 
 
 17. A passenger on a railroad train angered the conductor 
 of the train hy a caustic criticism of the conductor, who there- 
 upon assaulted the passenger, wilfully and wantonly, and 
 inflicted a malicious injury upon him. The act of the con- 
 ductor was in violation of the rules of the railroad company, 
 of which he had due notice. The passenger sues the railroad 
 company for damages. The railroad company defends upon 
 the ground that the conductor in doing the acts complained of 
 was not acting within the scope of his employment. Judg- 
 ment for whom, and why ? 
 
 118. 
 
 18. A and B, co-partners, dissolved. B took the partner- 
 ship property and agreed with A to pay the partnership dehts. 
 Thereafter a firm creditor, with knowledge of the facts, and 
 of B's agreement, took B's negotiahle promissory note, pay- 
 ahle in three months, in settlement of his firm debt. B was 
 then solvent. The note was not paid at maturity, and B 
 having in the meantime become insolvent, the creditor re- 
 turned it to B and then sued A and B, as co-partners, on the 
 original debt. A consults you. What are his rights and 
 liabilities uAder the circumstances? 
 
 119. 
 
 19. A, while in B's employ as a clerk, stole from B $500, 
 for which B discharged him. A was penitent and wanted 
 B to take him back into his service. B agreed on condition 
 that A give his bond, with a surety, for the honest perform- 
 ance of his duties, etc. Thereupon A furnished such bond, 
 with as surety, and again entered B's employ. C was ig- 
 norant of A's former offense. Soon A stole $300 of B and 
 decamped. B demands of C to make good the amount. Has 
 a defeuBe or not ? If so, what ? If not, why not ? 
 
 120. 
 
 20. In 1896 a husband insured hia life in the sum of 
 $10,000 for the benefit of his wife. He paid the premiums 
 thereon for five years, and then surrendered the policy to 
 
48 Bab 'Examinations autd Cotjeses of Stubtt. 
 
 the company in consideration of $500, paid therefor, which 
 canceled the same. The husband died soon thereafter. 
 The wife jknew nothing of the policy until after the h-us- 
 band's death. She now consults jrou. Wbat do you advise 
 as to her rights, if any, under the circumstanceB? 
 
 121. 
 
 21. A fire insurance policy was issued to A, insuring his 
 stock of boots and shoes in his retail store for one year from 
 May 1, 1901. He sold his entire stock in due course of 
 trade during the months of May, June' and July, 1901, and 
 closed his store for a two months' vacation. In October, 
 1901, he bought a new stock of goods and resumed business 
 at the old stand. A fire accidentally occurred in December, 
 1901, causing a large loss which the company refused to 
 pay, claiming that tbe company had not insured the boots 
 and shoes ia question. What, if any, are the rights of A, 
 and the obligation of the insurance company? State your 
 reason? 
 
 122. 
 
 22. A hired of B his horse> to work with his own, for 
 the month of August, 1900, for a given price, which was to 
 be returned to B at tbe expiration of the month. A, not 
 having quite finished his contemplated work, thought to 
 keep the horse a little wlule longer, which, without tiie 
 consent of B, he did. On the night of the third of the 
 following month, the stable wherein A kept B's horse, with- 
 out any fault or negligence on the part of A, accidentally 
 took fire, and B's horse, as well as A's, together with a 
 large amount of other property belonging to A, were con- 
 sumed by fire. B sued A for the value of his horse. A 
 answered, setting up the facts, and that the destruction of 
 plaintiff's horse was not caused by any fault or negligence 
 on his part. B demurs to the answer. Judgment for whom, 
 and why! 
 
 123. 
 
 23. In an action against a warehouseman, the plaintifl 
 proved the delivery of his carriage to the defendant for stoi^ 
 
Bab Examikations and Coueses of Stubt. 49 
 
 age during the winter for hire, a demand for the retnin 
 of the same, a refusal to deliver, and its value. He then 
 rested. The defendant thereupon proved that on a certain 
 night the warehouse, wherein the plaintiff's carriage waa 
 stored, was destroyed By fire, and its contents, including 
 plaintiff's carriage, were totally consumed, and then rested. 
 Both sides moved for judgment* Judgment for whom, and 
 why? 
 
 124. 
 
 24. A sold and delivered to B on a credit of sixty days, 
 his coach team for $600. The contract of sale, which was 
 verbal, provided that title should remain in A until B paid 
 for the horses. At the time of the purchase B was indebted 
 to in the sum of $700. Within ten days after the horses 
 had beem delivered to B, purchased the horses of B, in 
 extinguishment and satisfaction of his debt against B afore- 
 said, having no knowledge of the nature of the contract 
 between A and B. B gave to C a bill of sale of the horses, 
 warranting that he, B, was the absolute owner and could 
 convey good title thereto. The sixty days having expired 
 and B not having paid A, what, if any, remedy has A? 
 
 125. 
 
 25. A sold and delivered to B a horse for the agreed 
 price of $500, and took from him in payment and discharge 
 of his debt, the note of 0, which B indorsed " witliout re- 
 course." Both A and B honestly supposed at the time of 
 the transaction that was abundantly responsible, but it 
 turned out that he was then insolvent, and the note worth- 
 less. A proffers back the not« and sues B for $500, the 
 purchase price of the horse. B answers, pleading payment 
 and sets up the facts aforesaid. A demurs to the answer 
 and asks for judgment. Judgment for whom! On what 
 theoiyl 
 
 4 
 
50 Bae Examinations and Coueses of Study. 
 
 EXAMINATION PAPER, 
 No. 3. 
 
 AFTERNOON — FOUR HOURS. 
 
 126. 
 
 i. On tKe trial of an action, a question of fact was pre- 
 sented. The plaintiff was sworn as a witness on hia own 
 behalf. He testified to the fact, and was neither impeached 
 nor contradicted. He was the only witness sworn. When 
 the plaintiff rested his case, the defendant stated that he 
 had no witnesses, and aiked to go to the jurj;. The plaintiff 
 moved for judgment. What should the ruling of the Court 
 be, and why? 
 
 127. 
 
 2. An attorney rendered to his client a bill for services 
 in the sum of $500. His client neither made nor tendered 
 payment and the attorney thereafter sued him in quantum 
 meruit for $1,000. On the trial, defendant objected to the 
 attorney's showing that his services were worth in excess 
 of the $500 for which he had rendered his account. What 
 should the ruling of the Court bei, and why? 
 
 128. 
 
 3. Before a written contract for the purchase by A of B's 
 store and good will was executed, B agreed that he would 
 not open a store of the same kind in the village, where the 
 store was situated, for a period of five years. That agree- 
 ment was not inserted in the contract because B said it was 
 unnecessary. The sale was consummated and immediately 
 thereafter B opened a similar store in the village and ia 
 now actually engaged therein, in the same line of busineaa, 
 
BaE ExAMINATIOirS ANB COTTESES OF StUDT. 51, 
 
 in competition with A. A consults goxL What would be 
 your advice, and why? 
 
 129. 
 
 4. On the trial of an action, an opposing witness swears 
 to a fact material to the issue. You have a witness in Court 
 who will swear, that in a conversation with him, the oppos- 
 ing witness stated the fact to be diametrically opposite to 
 the evidence he has given. What should you do, if any- 
 thing, to enable you to give the evidence of gour witness? 
 
 130. 
 
 5. On the trial of an action, B, a competent expert wit- 
 ness, was called by plaintiff and after testifying that he was 
 present in Court and had heard and remembered all that 
 A had testified to concerning the facts and circumstances 
 of B's death, was asked this question: " Based on what 
 you heard A testify to, what, in your opinion, was the cause 
 of Cs death? " Objection was made. What would be the 
 correct ruling on the question? Give jiOur reason. 
 
 131. 
 
 6. On the trial of an indictment for grand larceny, the 
 jury having agreed, came into Court and rendered their 
 verdict of guilty. It was received and recorded, and then 
 the prisoner, who was in the jail during all this time, was 
 sent for, and having in open Court waived the appouitment 
 of a time for pronouncing judgment, was sentenced to State's 
 prison. What is your opinion as to the validity of his sent- 
 ence? Why? 
 
 132. 
 
 7. The prisoner was indicted for perjury. On his trial 
 it appeared as part of the prosecution's case that the facts 
 that the prisoner swore to and for which he was indicted 
 were material to the issue involved and might have affected 
 the result, but that tbe defendant did not know the mate- 
 riality of the false statement made by him and that the same 
 did not in fact affect the trial. At the close of the People's 
 case, the prisoner's counsel moved for his discharge on the 
 
52 BaE EXAMINATIOITS AOTJ CoiTBSES OF StUBY. 
 
 above grounds. What should the ruling of the Court be, 
 and why? 
 
 133. 
 
 8. A was indicted for robbery. On his trial it appeared 
 that he feloniously took B's watch from the latter's person 
 at midnight on a public highway. The watch, which was 
 worth $30, was gone before B was aware of the transac- 
 tion, but he discovered his loss almost simultaneously and 
 started in pursuit of A, who, being at the time armed with 
 a loaded pistol, pointed the same at B. B, under the in- 
 fluence of the force and fear of the loaded pistol, allowed 
 A to escape. He was subsequently arrested and indicted 
 as hereinbefore set forth. Was A guilty of the crime of 
 robbery under the circumstances? If so, in what degree? 
 If guilty of any other crime, what, and why? 
 
 134. 
 
 9. A had upon his land a large spring of excellent water, 
 whose flow was sufficient for use in the farm house and 
 bams. It was the only water upon the farm. B, the owner 
 of the adjoining farm, without intending to injure his neigh- 
 bor's spring, sunk a well near the boundary line between 
 the two farms, which had the effect of ruining the spring 
 on A's land by drawing off the water therefrom, leaving 
 the spring dry. There was nothing upon the surface to 
 indicate, and no one had iknowledge of, the existence of a 
 subterraneous stream between the spring and the well. A 
 sues B for the damages sustained by him from the loss of 
 his spring and B consults you. Do you advise Vn'm to settle 
 or to defend, and why? 
 
 135. 
 
 10. A child of two years of age was permitted by its 
 parents to play unattended in a country road which was a 
 public highway. A traveler, who was driving a spirited 
 team along the highway, did not see the child, his attention 
 being directed to an animal in an adjoining field and the 
 child was run over by the wagon and sustained serious in- 
 juries. The driver is sued for damages resulting from the 
 
Bab Examinations and Couesbs of Study. 53 
 
 injury to the child and consults you. Do you advise him 
 that he has or has not a good defense? State fully your 
 reasonsL 
 
 136. 
 
 11. A entertained a dislike for B, a merchant, and C, his 
 coachman, and, prompted by malice, A said of B and O, 
 speaking to a number of people, "Although B rides in his 
 carriage and is but a coachman, they are both alike, be- 
 cause both are bankrupts." B and sue A for slander with- 
 out averring special damage. Are they or either of them 
 entitled to recover? State fully your reasons. 
 
 137. 
 
 12. A brother and his sister each made a will devising his 
 and her property to John Doe, a friend. Each thereafter 
 married and died without issue. John Doe claims both es- 
 tates under the wills. The heirs at law of both brother 
 and sister consult you as to their rights. What would you 
 advise? State your reasons. 
 
 138. 
 
 13. A man died intestate, leaving him surviving a widow, 
 a brother and sister, but neither childTen nor parents. The 
 estate consisted entirely of personal property and after pay- 
 ment of debts amounted to $4,000. What are the respective 
 shares of the widow, the brother and the sister in the estate? 
 State your reasons. 
 
 139. 
 
 14. A man had two sons and two daughters. He duly 
 made his will providing for several specific legacies, but the 
 greater portion of his estate was disposed of by the follow- 
 ing residuary clause: "All the rest, residue, and remainder 
 of my estate, I give, devise, and bequeath unto my two sons, 
 share and share alike." Later he became angry at his two 
 sons, because of their undutiful conduct toward him, and 
 determined to change his will so that his two daughters 
 should take the residuum of his estate instead of his two 
 sons. He, therefore, obliterated the word "sons" in the 
 residuary clause of his will by dravdng a Irne through the 
 
^^ Bab ExAMINATIOliTS AND COUESES OF StUIXT. 
 
 word -with Ms pen, leaving, however, tlie word legible. He 
 then wrote in the vsoU over the obliterated word " sons " 
 the word "daughters" vsdth his initials, thus clearly mani- 
 festing his intent to effect the change in his will. After 
 the testator's death one of the subscribing witnesses, who 
 drew the will, testified that the changes had been made bji 
 the testator since the execution of the will. Are the sons 
 or the daughters, if either, entitled to the residuum? Give 
 your reasons. 
 
 140. 
 
 15. A and B, citizens of New York, entered into a con- 
 tract in writing, by which A sold and agreed to convey to B 
 a tract of land in the State of Pennsylvania. B duly ten- 
 dered to A the purchase money and was entitled to a con- 
 veyance of the land, which A refused to make. B sues A in 
 the Supreme Court, City and County of New York, for spe- 
 cific performance of the contract. A claims that the Court 
 has no jurisdiction and consults you. What is your advice 
 to him? State fully. 
 
 141. 
 
 16. A executed to B a mortgage upon his farm. Subse^ 
 quently, A gave to a second mortgage upon the same 
 farm. A did not pay the interest on the mortgage to B, 
 and B has begun a foreclosure of his mortgage, by adver- 
 tisement, imder the statute. If the foreclosure goes to sale^ 
 C's mortgage will be worthless, because the farm will not 
 sell for more than the amount of B'a mortgage. retains 
 you, states facts which show that B's mortgage is invalid and 
 asks you to assert his rights and protect his interests. [What 
 will you do? State fully. 
 
 142. 
 
 17. A duly conveyed to B his farm, A remaining in pos- 
 session of the premises. B neglected to record the deed. 
 Subsequently, A became indebted to C in the sum of $2,000, 
 which was due and payable. To secure this indebtedness af- 
 ter it was due, but without any agreement to extend or sus- 
 pend time of payment, A gave a mortgage upon the land 
 which he had formerly conveyed to B. C took the mort- 
 
Bae Examinations and Ootteses of Study. 55 
 
 gage in good faitK and without knowledge of the deed fron» 
 A to B. begins a foreclosure of his mortgageu B aaks 
 jjrou whether he has a good defense. What do you advise 
 him? State fully, giving your reasons. 
 
 143. 
 
 18. Upon the formation of the Z company, a manufacture 
 ing corporation, A subscribed for 100 shares of the capital 
 stock at $100 per share, but paid iu only 50 per cent, of the 
 amount of his subscription. The company became insolvent 
 and B, to whom the company owed $5,000, begins a suit 
 against A, to recover the amount, on the ground tbat A 
 owed that amount upon his subscription to the stock held 
 by him when B's debt was contracted. A defends. iWho 
 wins? 'Answer fully, with rjour reasons. 
 
 144. 
 
 19. A. made a promissory note, payable to his own, oi^er, 
 which he indorsed and then procured thereon the indorse- 
 ment of B, a manufacturing corporation, for his accommo- 
 dation. The note was discounted before maturity b;g A 
 at the X Bank, and the proceeds thereof placed to the credit 
 of his account in the X Bank. The note was dishonored, and 
 due notice thereof given to B. Thereupon the X Bank 
 brought action against both A and B to collect tbe nota 
 Judgment for and against whom, and for what leasonl 
 
 145. 
 
 20. A owned $10,000 full paid stocfe in the X corporation, 
 which was indebted to B, a laborer, for services, in the sum 
 of $500. B gave to A notice in writing within thirty days 
 after the termination of his services, as required by the 
 statute, that he intended to hold bim liable for his debt of 
 $500, and without taking anj other proceedings, at the ex- 
 piration of thirty days mor^ he brought action against A 
 for his claim. State whether or not B can recover in the 
 action. If not, why not! 
 
56 Bab Examtnatiows aitd Coueses of Studt. 
 
 146. 
 
 21. "WTiile A and B, husband and wife, are living together, 
 B, the wife, inherits a valuable house and lot in the City 
 of X, wherein thereafter, the husband and wife reside and 
 have a son bom unto them. Subsequently B procured an 
 absolute divorce from A, and then died intestate, owning 
 said property, leaving A and her said son her surviving. 
 What are the respective rights of A and the son in the 
 property? State your reasons. 
 
 147. 
 
 22. A, having a wife, B, and a child, issue of the marriage, 
 was dulyj sentenced to imprisonment for life, on a convic- 
 tion for murder in the second degree. He was duly par- 
 doned, after having served five years of the sentence, and 
 desired to resume marital relations and live with his family, 
 but B would not consent, or allow him to see the child. 
 Thereafter B married and lived with 0, retaining custody 
 of the child. Thereafter A brought an action against her 
 I'or an absolute divorce on statutory; grounds, and for the 
 custody of the child? 1st, What are A's rights in the prem- 
 ises? 2d, What, if any, legal irregularities is B guilty of? 
 
 148. 
 
 S3. A and B were husband and wife; while living to- 
 gether, A committed a grievous assault and battery upon 
 B, without cause or provocation, whereby she was injured 
 for life. The wife brought an action against A to recover 
 damages for injuries sustained. A demurred to the com- 
 plaint (which set forth the facts) on the ground that the 
 complaint did not state facts sufficient to constitute a cause 
 of action. Judgment for whom? State your reasons. 
 
 149. 
 
 24. A was put on trial for the murder of B. The in- 
 dictment contained two counts; the first charging murder in 
 the first degree, while the second count charged murder 
 in the second degree. The jury found him "guilty as 
 
BaE EXAMINATIOITS AITD CotTBSES OF StUDT. 57 
 
 charged in tlie second count." On appeal, the judgment 
 of conviction was reversed and a new trial ordered because 
 of errors committed. On the second trial, the Court being 
 requested by defendant's counsel, refused to instruct the 
 jury not to find a verdict on the first count, to which refusal 
 exception was taten and the jury found the defendant guilty 
 of murder in the first degree. WiU the conviction stand 
 or not, and for what reason? State fully. 
 
 150. 
 
 25. John Doe had been duly committed to jail to await 
 the action of the grand jury on a charge of arson. You 
 are his counsel. Doe has made application to the SherifE 
 having hiTn in custody, to be allowed a private interview 
 with you as his counsel, which the SherifE has absolutely re- 
 fused. What, if any, right has John Doe in the premises, 
 and, if an^ on what is it based and how wiU it be enforced I 
 
58 BaE EXAMIITATIONS AND CoUESES OF StTJDT. 
 
 EXAMINATION PAPER, 
 No. 4. 
 
 FORENOON — FOUR HOURS. 
 
 151. 
 
 1. Draw a summons in an action for divorce with affidavit 
 of proof of service thereof upon the defendant. 
 
 152. 
 
 2. Your client is defendant in an action where the county 
 designated in the complaint for the trial thereof is not the 
 proper county. You desire to move to change the place of 
 trial to the proper county before answering. No papers ex- 
 cept the summons and complaint have been served. State 
 fully what you must do and in what manner to change the 
 venue to the proper county. 
 
 153. 
 
 3. A young woman of property, 18 years of age, hires a 
 horse and buggy of a liveryman to drive a distance of ten 
 miles, returning the same day. She drives a distance of thirty 
 miles and brings the horse and buggy back the third day 
 thereafter seriously damaged. The liveryman consults you as 
 to his remedy. [What do you advise him ? State f uUy with 
 your reasons, 
 
 154. 
 
 4. A sues B upon a promissory note and B defends and sets 
 up a counterclaim which A insists is sham and asks you to 
 move to strike out as sham. What do you advise him, and 
 why? 
 
 155. 
 
 5. A brought an action against B for assault, the simmions 
 having been personally served upon the defendant, within 
 
Bab Examination's and Oottesbs of Stttdt, 59 
 
 tKe State. B appeared in the action and demanded service 
 of the complaint which was served, but he did not answer. 
 What are the necessary steps for A's counsd to take to ob- 
 tain judgment against B? State full^. 
 
 156. 
 
 6. The sheriff has taken into his possession, under a war- 
 rant of attachment, a span of horses, as the property of the 
 defendant, which are claimed by another person. The sheriff 
 desires to ascertain the validity of the claim and asks you 
 how he can do so. What do you advise him? State fully. 
 
 - .' ^- 157. 
 
 7. A was the owner<>f arouse and lot. Upon the marriage 
 of his nephew B, A said to B, " I hereby give you this house 
 and lot and will^(ieed it to you." B took possession at once, 
 occupied the premises and made expenditures in permanent 
 improvements thereon, but the amount of such expenditures 
 is less than the value of the rent of the premises while occu- 
 pied by B. A died without having conveyed the premises to 
 B, who continues to remain in possession. A's executor brings 
 an action of ejectment against B, who defends. Has B a good 
 defense i State fully with your reasons. 
 
 158. 
 
 8. A constructed a building for general manufacturing 
 purposes and supplied it with a water-wheel and suitable gear- 
 ing for propelling machinery. B purchased the premises, 
 and also purchased of 0, and set up planing machines in the 
 building, which were operated by bands connected with shafts 
 ing driven by the water-wheel. These machines were fastened 
 to the floor for the purpose of keeping them in place while 
 working, and each could be removed from the building with- 
 out injury thereto or to any other machine. B gave his note 
 for these machines, which he secured by a chattel mortgage 
 upon all the machinery in the building, including the water- 
 wheel, and gearing, which mortgage was duly filed. Subse- 
 quently he gave to D a real estate mortgage upon the building 
 and all the machinery therein. Both and D foreclose and 
 
60 Bab Examinations and Coueses of Study. 
 
 each claim the machinery. What are their rights re- 
 spectively ? State fully, with your reasons. 
 
 159. 
 
 9. A granted to B, by deed, a private way across his farm. 
 Becoming angry at B, A obstructed the road so that B could 
 not pass over it. B thereupon removed enough of the fences 
 in A's adjoining field to enable him to pass on A's land around 
 the obstruction. A brings an action against B for trespass. 
 B defends, setting up the facts. Is the defense good i If so, 
 why ? If not, what should B have done i 
 
 160. 
 
 10. John Doe and Richard Roe entered into a written 
 agreement, viz. : " I, John Doe, agree to employ Richard Roe 
 so long as satisfactory to me at $5.00 per day as engineer, and 
 I, Richard Roe, agree to work for John Doe, on the terms 
 and conditions aforesaid, and to give him two weeks notice in 
 writing before quitting his employment or I forfeit to him 
 $100. (Signed) John Doe, Richard Roe." 
 
 Richard entered upon his work under the agreement, and 
 subsequently left the employment without giving the notice, 
 there being then due to him for his services $100. John 
 refuses to pay for the labor performed, and Richard sues for 
 his $100. John answers, admitting the service and value, 
 but sets up the contract and alleges a breach thereof on 
 Richard's part in that the notice required thereby was not 
 given, and claims the $100 forfeiture as an offset to plaintiff's 
 claim. Richard demurs to the answer. Judgment for whom, 
 and why ? 
 
 161. 
 
 11. A and B mutually agree to marry each other on the 
 following Christmas. Afterward, and six months before 
 Christmas, A married C. Without any demand or refusal, 
 B immediately and without waiting until Christmas, sued 
 A for breach of promise. If A should consult you, what, if 
 any, defense would you advise him he could make on the 
 above state of facts ? Why ? 
 
BaE EXAMIITATIONS AND COUESES OF StuDY. 61 
 
 162. 
 
 12. A took the farm of B to work on shares in raising 
 grain. A agreed with that if the latter would plow the 
 land, sow and harvest the crops, he should have one-half of 
 his, A's, share, to which C assented, and performed his part 
 of the agreement. 
 
 1st. What is the legal relation of A and B and the rights 
 of each ? 
 
 2d. What are the legal relations of B and in the business 
 and crops ? Copartners or otherwise ? Give your reasons. 
 
 163. 
 
 13. A and B were copartners in business, but dissolved on 
 January 1, 1899. Notice of such dissolution was published 
 in three newspapers, published in the city where they had 
 their principal place of business, and in the trade papers. 
 C, who had had actual dealings with the firm, not seeing the 
 advertisement nor having notice of the dissolution, in good 
 faith sold and delivered $5,000 worth of goods, as he believed 
 to the old firm, which were bought by A in the old firm name. 
 He now sues A and B as partners, for the amount thereof. 
 B defends on the ground that he was not a member of the 
 firm when the sale was made, and neither authorized it nor 
 was cognizant of it at any time. All of the above facts 
 appearing on the trial, judgment for whom and why ? 
 
 164. 
 
 14. A sold to B the right to make, use and sell a certain 
 invention claimed by A to be patented, for which B gave to 
 A his note as follows: 
 
 " $600. N'bw Yoek, June 1, 1901. 
 
 " Six months after date, for value received, I promise to 
 pay to A, or bearer, five hundred dollars, with interest 
 (Given for a patent right.) (Signed) B." 
 
 The note was duly transferred by A to C, for the full face 
 value thereof, before maturity, who was a hona fide holder in 
 due course. The note not being paid at maturity, O sued B 
 
62 Bab Examinations aot) Cotjeses ob' Stttdt. 
 
 thereon, who answered, admitting the making, delivery, and 
 non-payment of the note and then set up that A procured the 
 note by fraud and misrepresentations, but made no claim that 
 had any knowledge thereof when he took the note, or that 
 he was not a bona fide holder for value. C demurred to the 
 answer. Judgment for whom, and why i 
 
 165. 
 
 15. A gave to B his promissory note as follows: 
 
 « $1,000. Albany, May 1, 1902. 
 
 " One month after date, for value received, I promise to 
 pay to B, or order, one thousand dollars with usa (Signed) 
 A." 
 
 On the back of the note for A's accommodation C wrote, 
 " I guarantee the payment of the within note." (Signed) 
 " C." 
 
 A then delivered the note to B. Ten days after its matur- 
 ity, payment not having been demanded of or refused by A, 
 and no notice of dishonor having been given 0, A and C were 
 both sued on the note by B. C defends. Judgment for whom 
 and for what reason ? 
 
 166. 
 
 16. A, as an agent for, and with authority from B, sold a 
 horse to belonging to B with warranty. C knew that A was 
 acting as agent for some one in the transaction, but for whom 
 A did not disclose, as he readily would have done, had 
 inquired, and so was in ignorance of the name and identity 
 of A's principal. There was a breach of the warranty and 
 C sued A thereon to recover his damages, setting up the facts 
 aforesaid in his complaint. A demurs. Judgment for whom, 
 and why ? 
 
 167. 
 
 17. A employed B as his agent, to purchase for him ten 
 shares of the capital stock of a certain railroad company, at 
 a price not to exceed par, agreeing to pay him a commission 
 for his services. B caused ten shares of the stock of the com- 
 pany which he owned to be transferred on the books, and a 
 new scrip issued therefor to A, and mailed the same to him 
 
Bae Examinations and Coueses of Stuivt. 63 
 
 at par; whereupon A remitted to B the funds therefor, to- 
 gether with his agreed commission. About two months there- 
 after A first ascertained that B had sold him some of his own 
 stock, and he then sued to have the sale rescinded and to 
 recover from B the money paid for the stock, as well as the 
 commission paid, not claiming that he had been defrauded. 
 The complaint stated the facts, to which B demurred. Judg- 
 ment for whom, and on what principles ? 
 
 168. 
 
 18. A was surety to B for a debt to B from C. When the 
 debt became due, was solvent and A called upon B to bring 
 an action upon the same. B neglected so to do, and thereafter 
 C became insolvent. B now calls upon A to pay the debt and 
 the latter consults you. What would be your advice under the 
 circumstances disclosed ? 
 
 169. 
 
 19. A and B jointly interested in a transaction, executed 
 a bond with as their surety. D, at the request of the prin- 
 cipals, paid the bond, and now sues A, B and C to recover the 
 amount paid thereon. They consult you. What are their 
 respective rights and liabilities, if any ? 
 
 170. 
 
 20. A policy of life insurance on the husband's life, is pay- 
 able, in the event of his death, to the wife, if living, if not 
 living, to their children. The husband and wife by an instru- 
 ment in writing assign the policy to A in payment of their 
 joint debt. Thereafter the wife died; then the husband. 
 When the policy was issued, and at the time of the death of 
 the husband, they had three children living. Question arises 
 to whom should the policy be paid ? The children claim it, 
 80 does A. What would be your advice ? 
 
 171. 
 
 21. A policy of fire insurance, insured A's stock of Horses, 
 cattle, and sheep, in the sum of $6,000, two thousand thereof 
 being on the horses, two thousand on the cattle, and two thou- 
 
64: Bae Examinatioits and Cotjeses of Sttidt. 
 
 Band on the sheep. The policy provided that " this entire 
 policy * * * shall be void * * * if the subject 
 of the insurance be personal property and be or become in- 
 cumbered by a chattel mortgage." While the policy was in 
 force, A executed and delivered a chattel mortgage on the 
 sheep in the sum of $1,000. Thereafter, and while the mort- 
 gage was alive, a fire took place, and all the insured property 
 was destroyed. There was a total loss of more than $2,000 
 on the cattle and sheep respectively and of $4,000 on the 
 horses. State A's legal position, under the circumstances dis- 
 closed. Is he entitled to recover anything, or nothing ? State 
 fully your reasons. 
 
 172. 
 
 22. A delivered to B, a miller, 10,000 bushels of wheat, 
 for which he agreed to deliver to him in ninety days, 2,000 
 barrels of flour. During the ninety days, and before the 
 miller had begun to grind the same, the sheriff levied on the 
 wheat under an execution issued on a judgment against the 
 miller. A consults you. What is the nature of the transac- 
 tion and A's rights and remedies, if any, under the circum- 
 Btances disclosed 1 
 
 173. 
 
 23. A jeweler received from A a quantity of gold coin, 
 from which he was to make a vase. The vase was to be com- 
 pleted,and delivered to A on January 2, 1902, and A was to 
 pay him $500 for his services, within sixty days thereafter. 
 The vase was completed and ready for delivery on January 
 2, 1902, but before it was delivered and on that day, it was 
 attached by a creditor of A, for a debt of more than the value 
 of the vase completed, including the jeweler's work. The 
 jeweler protested against its being taken and claimed a lien 
 thereon. He now consults and asks you to obtain for him, if 
 possible, its return. What would be your advice ? 
 
 174. 
 
 24. A sold to B 5,000 watch cases to be thereafter manu- 
 factured, at the agreed price of $5 apiece. When the cases 
 were delivered they were defective, which fact could be deter- 
 mined upon inspection- B with knowledge of their defects, 
 
BaE ExaMIMATIONS and CoUBSES of STtTDY. 65 
 
 neither returned nor offered to return them, and thereafter 
 sold the same in due course at their market value, and lost 
 $5,000 on the transaction. B is now sued for the contract 
 price and consults you as to his right to offset his claim for 
 damages. What would be your advice J 
 
 175. 
 
 25. A met B and said to him, " For what will yon sell to 
 me 500 barrels of flour ? " B replied : " Five dollars a 
 barrel, cash on delivery." A said, "All right, I accept; de- 
 liver the flour at my storehouse to-morrow morning." Flour 
 was worth but $4 a barrel when B tendered the flour to A, 
 the next morning, which A refused to accept at the price 
 agreed upon. B now consults you as to what he can or should 
 do \mder the circumstances. What would be your advice I 
 5 
 
66 Bae Examinations and Coueses op Sttjdt, 
 
 EXAMINATION PAPER 
 No. 4. 
 AFTERWOON — FOUR HOURS. 
 
 176. 
 
 1. Upon the trial of an action against A, B and C, fonriei 
 members of a firm which had heen dissolved, A, who had 
 not appeared in the action, was called as a witness for the 
 plaintiff and was subsequently called and examined as a 
 witness for the defendant, B, who had appeared and an- 
 swered. Thereupon the plaintiff proved, under objection and 
 exception, A's declarations made after the dissolution of the 
 firm, in conflict with his testimony as a witness for B. Was 
 the exception well taken? Give your reasons. 
 
 177. 
 
 2. Upon the trial of an action for groceries sold and de- 
 livered the plaintiff, a tradesman, who kept no clerk, pro- 
 duced his account books containing entries of the items upon 
 which he sought to recover against the defendant, and offered 
 them in evidence. Counsel for the defendant objected and 
 the court sustained the objection. What was the objection 
 and what must counsel for the plaintiff do to have the books 
 admitted in evidence? State fully. 
 
 178. 
 
 3. A brings an action of ejectment against B. The 
 records of conveyances in the office of the County Clerk 
 show a complete chain of title in A, except that there is 
 no recorded conveyance from one of his predecessors in the 
 title to another in the year 1870. This deed is in A's pos- 
 
Bae Examikations and Coueses of Sttidt. 67 
 
 session. The deed was not acknowledged, the grantor and 
 the witnesses are dead, and no one knows their signatures. 
 How can he prove his title? Give your reasons. 
 
 179. 
 
 4. A entered into a contract in writing with B, wherein 
 it was stated that A agreed to sell and convey to B certain 
 timber lands therein described at an agreed price. B paid 
 A the price, and A conveyed to B the requisite number of 
 acres of land, but B thereafter discovered that the land con- 
 veyed to him had no timber upon it. Upon the trial of an 
 action by B against A, upon the contract, for fraud, B at- 
 tempted to prove that prior to the making of the contract, 
 A stated to him that the lands he was to convey were heavily 
 timbered, and pointed out to him heavily timbered lands 
 which he said were like those he was to convey to B. The 
 court excluded the evidence on the ground that the contract 
 was the best evidence and could not be varied by oral evi- 
 dence of acts and declarations prior thereto. Was the ruling 
 right or wrong? State fully your reasons. 
 
 180. 
 
 5. A sues B to recover damages for injuries alleged to 
 have been sustained by being struck by a wagon driven upon 
 the sidewalk by one of B's servants. Upon the trial, A called 
 C, who testified only that he drove B's horse and wagon on 
 the occasion in question. B, as a part of his case, recalled O, 
 who testified that he did not drive on the sidewalk. On 
 cross-examination by A, denied that at a certain time and 
 place after the alleged accident, he had said to D that he 
 did drive on the sidewalk. After B rested, A called D as 
 a witness to prove what denied saying on his cross-examina- 
 tion. B objected to the evidence. What was the ground of 
 the objection, and what was the ruling of the Court? State 
 fully with your reasons, 
 
 181. 
 
 6. In the perpetration of a fraud in the pretended sale and 
 conveyance of lands, a notary public was induced to wilfully 
 
68 Bae Examinations and Coueses of Studt. 
 
 certify falsely that the execution of a deed of conveyance 
 of the land was acknowledged by the grantor named therein 
 before him. Of what crime is the notary guilty ? 
 
 ^ 182. 
 
 7. A prisoner, upon his arrest, made a confession to the 
 oflBcer having biTn in custody, admitting his guilt. This con- 
 fession was made after the officer had told the prisoner that 
 he could make him no promise, but that he would use hia 
 influence in his behalf if the prisoner should maike any dis- 
 closures which would be of benefit to the government. The 
 officer testified that he thought the statement was voluntarily 
 made by the prisoner. Upon the trial of the prisoner the 
 confession was proved against the objection of hia counsel. 
 The prisoner was convicted. Will the conviction stand? 
 State fully with your reasons. 
 
 183. 
 
 8. A and B confederated to rob C, who had set Ma valise 
 down on the sidewalk and was looking for a, certain house 
 on the street. A assaulted with force and violence while 
 B opened the valise without being observed by C, abstracted 
 a watch and closed the valise so that it appeared to be in 
 the same condition as before. did not know of the loss 
 until an hour later. Meantime A and B escaped. Later B 
 is arrested, indicted and convicted of robbery. Counsel for 
 B insists that B used no force or violence and is not guilty 
 of the crime charged. "Will the conviction be sustained upon 
 appeal? State fully, with your reasons. 
 
 184. 
 
 9. The railroad train on which A was a passenger was 
 thirty minutes late owing to a defect in the locomotive, 
 which had existed and been known to the railroad company 
 for two weeks. The train passed through a thunderstorm 
 and the car wherein plaintiff sat was struck by lightning and 
 he was severely injured. In an action of negligence brought 
 by A against the railroad company to recover his damages, 
 he successfully established that if the train had been on time- 
 
Bab Examikations and Coubses of Study, 60 
 
 it would have escaped the storm. What do you say about the 
 Kabilitj of the company, and state your reasons. 
 
 185. 
 
 10. A, B and were sued by D for a joint assault and 
 battery against him. After issue joined, A paid D $500 in 
 satisfaction of his wrongful act, taking back a release and 
 discontinuance of the action as against himself. At the trial, 
 this being proven, counsel for B and moved to dismiss the 
 action against them. Motion denied and case went to the 
 jury which gave a verdict for damages against B and C. 
 Upon exceptions taken by them to the ruling of the court, 
 B and appealed from the judgment. Will the judgment 
 be affirmed or not? State your reasons. 
 
 186. 
 
 11. A sues B to recover damages for a malicious assault 
 and battery committed upon his person by B. On the trial, 
 evidence is given on the part of the defendant to prove that, 
 at the time of the assault, B was insane. The Court leaves 
 the issue to the jury, and plaintiff's counsel requests the 
 Court to charge that the defendant even if insane is liable 
 for damages actually inflicted and is also liable for punitive 
 damages, to both of which propositions defendant's counsel 
 duly took exception. What do you say as to the correctness 
 of the two propositions charged respectively? 
 
 187. 
 
 12. A had and left him surviving a son, B, and two daugh- 
 ters, G and D. Being the owner of two houses and lots and 
 considerable personal property, which constituted his entire 
 estate, he made his last will and testament whereby he de- 
 vised unto each of the daughters a specified house and lot, 
 and bequeathed the remainder of his property to his son, 
 B. After making the will, the house and lot devised by the 
 terms thereof to C were taken from A by the X Railroad 
 Company in condemnation proceeding which were vigorously 
 opposed by A, he receiving an award of $10,000, which he 
 immediately invested in the capital stock of the X Bank. 
 
70 Bab Examinations and Coueses of Study. 
 
 After his death, the stock was found in an envelope with 
 the will and a memorandum signed by him, stating that it 
 was his " wish and intention that the stock should go to 
 in place of the real estate for which it stood and represented 
 and of which it was the avails." Under the will which was 
 admitted to probate, how was the property distributed? 
 State your reasons. 
 
 188. 
 
 13. A makes a will and leaves all his property, consisting 
 exclusively of real estate, to his only child, X. He there- 
 after marries, has another child, and dies without changing 
 his will, leaving his widow and his two children his only 
 heirs at law him surviving. His will is ofFered for probate 
 and objection is made thereto. What is the situation thereof 
 and what disposition is made of his estate? 
 
 189. 
 
 14. The will of A provided that in case any legatee con- 
 tested the will on any ground whatsoever, the legacies be- 
 queathed to such contestants should be held revoked and be 
 null and void, and the same should go into and form a part 
 of his residuary estate, and be distributed accordingly. B 
 and 0, both being legatees, contested the wiU. C, being 
 a minor, contested by his guardian appointed for that pur- 
 pose. The will was admitted to probate, C still being a 
 minor. Can B or C, or either of them, recover their legacies, 
 or not? If so, for what reason, if not, why not? 
 
 190. 
 
 15. A was the owner of a vacant lot adjoining his family 
 residence. He entered into a written contract of sale there- 
 for to and with B, relying upon the representations by B 
 that he was making the purchase for the purpose of erecting 
 on the lot a residence for himself and family, and that the 
 plans and specifications therefor were already made. B 
 paid $1,000 cash at the time, and the balance of the purchase 
 price B was to pay on the last day of the following month, 
 and on its receipt A was to execute and deliver the deed 
 therefor. B immediately commenced grading the lot and 
 
Bae Examinations and Coueses of Stubt. 71 
 
 had expended $500 therefor when the appointed time for 
 payment of the balance of the purchase price and the delivery 
 of the deed arrived. Meanwhile A had ascertained that the 
 said representations by B were false, and that, at the time 
 he and A made the contract, he, B, had already entered into 
 a written contract with C for sale to him of the lot, condi- 
 tioned on A's selling to B, whereon he, C, was to erect and 
 maintain a livery stable, which would be offensive and detri- 
 mental to A. B duly demanded his deed at the appointed 
 time, tendering the balance of the purchase price, which A 
 refused to accept^ or to give the deed. B sues for specific 
 performance. A defends. Wbo wins? State your reasons, 
 and the equitable maxim involved. 
 
 191. 
 
 16. A holds a mortgage upon three parcels of land, Tte 
 owner sells one parcel to B, thereafter another to C and at 
 the time of the foreclosure by A of the mortgage, he still 
 owns a third parcel, which is insufficient to pay and satisfy 
 the mortgage in full. In the foreclosure action, A maikes 
 B, C and the owner of the unsold part parties to the fore- 
 closure. B consults you as to his rights. What are they, 
 if any? "What would you advise B to do under the circum- 
 stances for the protection of his property? 
 
 192. 
 
 17. A vessel is stranded at sea with imminent danger that 
 unless it be, at once, relieved by lessening its cargo, not only 
 the vessel, but the entire oargo would be lost or destroyed. 
 In the emergency 500 tons of steel belonging to B were 
 thrown overboard and lost, and thereby the vessel was re- 
 lieved, and the vessel, as well as the balance of the cargo, 
 which belonged to several different importers, was saved. 
 A demurs to being made a sacrifice for others^ Against 
 whom, if any one, has he a remedy, and what, if any, is it! 
 Wbat equitable maxim applies? 
 
 193. 
 
 18. The board of directors of the X corporation con- 
 sisted of three persons. It became necessary to pass at once, 
 
72 Bab ExAmuATioirs and Coueses of Studt. 
 
 a resolution authorizing the treasurer to execute a corpora- 
 tion note for a special purpose, which required corporate 
 action, and its secretary drew up such a resolution and saw 
 each director in turn, at his place of residence and had him 
 assent in ■writing to the passage of the same — which was 
 accordingly entered upon the minutes of the corporation as 
 having been duly adopted by the board of directors. Ques- 
 tion arises as to the validity of the note. What is your 
 opinion? State your reasons. 
 
 194. 
 
 19. The X corporation was unable to pay its obligations 
 as they became due in the regular course of business. At 
 that time it was indebted to A, its president, on account of 
 salary, in the sum of $10,000, and it transferred to him, in 
 payment of his claim, certain of its personal property of that 
 value. Your client, a creditor of the company, which has no 
 visible assets, consults you as to the validity of the transfer, 
 and his rights in relation thereto, if any. What would be 
 your advice? 
 
 195. 
 
 20. A foreign manufacturing corporation desires to do 
 business in this State. Are there any limitations on that 
 privilege? If so, what? 
 
 196. 
 
 21. In an action for an absolute divorce, complaint 
 charges the wife with having committed adultery with A. 
 A is innocent and consults you as to whether there is any 
 method by which he can protect his reputation in the 
 premises. What would be your advice? 
 
 197. 
 
 22. An infant sold his real estate to A, for its full and 
 fair value and received the purchase price therefor, which 
 he thereafter squandered. He repudiated the sale, when he 
 became of age — and now brings an action against the ven- 
 dee to recover the possession of the property, but he does 
 not tender nor offer to restore the purchase price — for the 
 
Bae Examinations and Coueses of Stxjbt. 7ii 
 
 reason that he had spent it and therefore it is impossible for 
 him to do so. Can he, under the circimistances, maintain 
 his action? If so, why so; if not, why not? 
 
 198. 
 
 23. On December 15, 1899, a wife wilfully deserted her 
 husband, and refused to live with him, and he gave notice 
 to X, a tradesman, not to sell to her on his account. The 
 wife on January 1, 1900, offered to return to the husband 
 and he refused to receive her. X, with notice of the facts, 
 sold goods to the wife from the day of her desertion to 
 February 1, 1900, and now sues to hold the husband there- 
 for. State the law governing the husband's liability, if any. 
 
 199. 
 
 24. The X Electric Railway Company is the owner of 
 certain lands and premises in the City of A, which are neces- 
 sary to the proper use and enjoyment of its franchise. The 
 Y Steam Railroad Corporation finds that the said premises 
 are absolutely essential to the proper use and enjoyment of 
 its franchise — and desires to condemn the same for its 
 corporate purposes, and asks your advice. What would be 
 your advice? 
 
 200. 
 
 25. A committed the crime of grand larceny on January 
 1, 1900. At that time the Statute of limitations for the 
 prosecution of that offense was one year. In December, 
 1900, the Legislature made the time for finding indictments 
 for grand larceny, two years, and in February, 1901, A was 
 indicted, tried for th© crime, found guilty, and sentenced to 
 prison. What is your opinion as to the validity of the 
 sentence f Give your reasons. 
 
Y4 Bae ExAltlNATIONS AND CotlESES OF StTTDT. 
 
 EXAMINATION PAPER. 
 No. 5. 
 
 FORENOON — FOUR HOURS. 
 
 201. 
 
 1. Jane Doe is an infant and is the owner of a promissory 
 note made to her order by John Stiles. The note is past due, 
 Draw a complaint upon the note in an action against the 
 maker. 
 
 202. 
 
 2. You are retained to bring an action for libel against 
 the publisher of a newspaper; you serve a verified complaint, 
 but the attorney for the defendant serves on you an un- 
 verified answer. What will you do with it? State fully, 
 with your reasons. 
 
 203. 
 
 3. A complaint in an action for negligence alleged that 
 the defendant excavated a pit in a street and left the same 
 unguarded, in consequence whereof the plaintiff, while pass- 
 ing along the street, fell into the pit and was injured. The 
 answer contained three defenses, separately stated. (1) The 
 contributory negligence of the plaintiff; (2) a settlement or 
 compromise of the plaintiff's demands; (3) a denial of each 
 and every other allegation in the complaint not before speci- 
 fically admitted, qualified or denied. Upon the trial the 
 plaintiff did not prove that the defendant made the excava- 
 tion or that the same was in a public street, and the defend- 
 ant moved for a dismissal of the complaint for that reason. 
 ^Vhat should be the ruling of the Court? State fully with 
 your reasons. 
 
Bae Examikatioits and Coueses of Study. 75 
 
 204. 
 
 4. When ia a reply necessary, and what is the effect oi 
 an omission to serve a reply when a reply is necessary? 
 
 205. 
 
 5. An injunction order has been granted ex parte unjustly 
 restraining your client. You desire to have it vacated ex 
 parte. What will you do ? State fully. 
 
 208. 
 
 6. A Surrogate's Court, having cognizance of a certain 
 matter, is about to exercise powers in excess of its jurisdic- 
 tion, to the detriment of your client. How, and bj what 
 authority can you prevent it? State fully. 
 
 207. 
 
 7. A deed of conveyance of real estate situated in ITew 
 York is executed and acknowledged in Boston, Mass. Draw 
 a proper acknowledgment under the laws of New York and 
 state what must be done to entitle the deed to be recorded 
 in New York. 
 
 208. 
 
 8. A has taken a mortgage for $5,000 upon B's farm to 
 secure the payment of money loaned to him. A has 
 neglected to record his mortgage until a judgment for 
 $1,000 has been obtained against the owner of the farm by 
 C, and duly docketed in the office of the County Clerk. The 
 farm is not worth more than the amount of the mortgage 
 and A asks your advice as to his rights. What do you advis* 
 him? State fully. 
 
 209. 
 
 9. A farmer devised his farm to his son and daughter and 
 their heirs to be held in joint tenancy. The son died in- 
 testate, leaving a son, A, and thereafter the daughter died 
 intestate leaving two sons, B and C. B dies intestate leav- 
 ing a daughter, D. Your client desires to purchase the farm. 
 From whom can he obtain title? State fully, with youi 
 reasons. 
 
76 Bae Examinations and Coxjbses of Study. 
 
 210. 
 
 10. A met B and said to him: "I will give you $5,000 
 cash for your stable and the horses therein contained, and 
 here is $1,000 to bind the bargain." B said, " I accept, and 
 ■will give you a deed of the real estate and a bill of sale of 
 the horses to-morrow at ten a. m." A replied, " All right ; 
 I will give you the balance of the money then." B took the 
 $1,000 and on the next day tendered the deed and bill of 
 sale, as agreed; but A refused to complete his purchase and 
 demanded the return of his $1,000. B consults you. What 
 are the rights of A and B, respectively? State your reasons. 
 
 211. 
 
 11. A and B became engaged to be married, A at the 
 time being a married man, which fact was not known to B. 
 B subsequently discovered the fact of A's marriage, and 
 thereupon, without making any demand upon A, and he not 
 having refused, sued him for breach of promise to marry. 
 Can she maintain the action or not? State your reasons. 
 
 212. 
 
 12. A and B are copartners conducting a mercantile busi- 
 ness. The sheriff receives an execution of $500 against A 
 and levies upon his interest in the goods of the firm. Two 
 days after such levy the sheriff receives another execution 
 of $1,000 against A and B for a copartnership debt. The 
 sheriff realizes on the sale of the copartnership stock levied 
 upon, $900, and he is now in doubt as to how the money 
 should be applied. What would you advise him, and why? 
 
 213. 
 
 13. A was not a copartner in fact of B in a certain busi- 
 ness, but held himself out to be such by his acts and declara- 
 tions in order to give credit to B. sold and delivered to 
 B $1,000 worth of goods for use in that business, but, at 
 the time, he had no notice or knowledge of A's acts or 
 declarations. brings his action against A and B to recover 
 for the goods sold, claiming that A is a partner because of 
 
BaE ExAMrNATIOITS AND CoUBSES OF StUDT. 77 
 
 hia said conduct and declarations. Will reco\'er judgment 
 against A or not, and state the rule governing the trans- 
 action? 
 
 214. 
 
 14. A sold to B the right to make, use and sell a certain 
 invention claimed by A to be patented, for which B gave 
 to A his note as follows: 
 
 " $500. l^BW YoEK, June 1, 1901. 
 
 " Six months after date, for value received, I promise to 
 pay to A, or bearer, five himdred dollars, with. interest, at 
 the First National Bank of the City of Albany. 
 
 (Signed) B." 
 
 Before maturity A, without indorsement, transferred and 
 delivered the note to C for value, who became the owner and 
 holder in due course. The note was dishonored. What, if 
 any, is A'a liability for the transaction? State your reason. 
 
 215. 
 
 15. A being indebted to C and D, copartners, in the sum 
 of $1,000, gave to the firm his note for the amount, payable 
 six months after its dat-e. O and D immediately indorsed 
 the note in and by their firm name, and discoimted the same 
 at the X Bant. Thereafter and before the maturity of the 
 note and D dissolved partnership. After such dissolution, 
 which was known to the X Bank, the note was dishonored 
 and notice thereof duly given to D, but not to C. X Bank 
 sues both and D as indorsers. O defends. Judgment for 
 whom and on what grounds? 
 
 216. 
 
 16. A, as agent for and imder the direction of B, employed 
 to reconstruct a coach belonging to B for a stated sum. 
 C knew that A was acting as agent for some one in 
 the transaction, but for whom A did not disclose, as he would 
 readily have done had inquired, and so was in ignorance 
 of the name and identity of A's principal. When O had 
 linished the work he called upon A for his pay. A disclaimed 
 liability therefor and then disclosed B as his principal, foi 
 
78 Bab Examinations and Coubses of Study. 
 
 whose benefit the work had been done, but C sued A to re>- 
 cover for his services, setting up the facts in his complaint, 
 to which A demurred. Judgment for whom and why? 
 
 217. • 
 
 17. A employed B, a real estate broker, to find a pur- 
 chaser for his farm, the price and terms to be settled between 
 A and the purchaser. 0, wanting to purchase a farm, had 
 also employed B to find for him, 0, a farm, the price and 
 terms therefor to be fixed and agreed upon between C and 
 the seller. Each party, without knowledge thereof by the 
 other, agreed to pay A a commission. B brought A and C 
 together, and they personally negotiated with each other 
 and concluded the sale of A's farm to C. At the conclusion 
 of the sale A and first learned that B had been acting 
 for both of them imder an agreement from each to pay him 
 a commission, and both A and C then refused to pay B the 
 commission to which they had respectively agreed. B con- 
 sults you as to his rights in the case. What advice do you 
 give him, and for what reason? 
 
 218. 
 
 18. A owed B $10,000 for goods sold and delivered. B 
 had in his possession, as collateral security for the debt, 
 securities, the property of A, to the value of $10,000. A 
 was unable to pay the debt, and, desiring more time, as well 
 as the privilege of disposing of the collateral, he induced C 
 to become his surety for the debt, and thereupon B surren- 
 dered the collateral to A. knew nothing about the col- 
 lateral and became surety regardless of the fact. When the 
 debt became due A was insolvent and B demanded of C thai 
 he pay the same. C then, for the first time, learned about 
 the collateral and consults you as to his rights, if any, in 
 the premises. What would be your advice? 
 
 219. 
 
 19. A was surety to B for a debt of $10,000 due to B 
 from 0. The debt was not paid at maturity and A, on de- 
 mand of B for its payment, extinguished the same by the 
 
Bae Examinations anb Coueses of Study. YD 
 
 payment of one-half of its amount to B. The surety now 
 sues C for $10,000, the amount of the original debt. "What 
 would be your advice to C under the circumstances? 
 
 220. 
 
 20. A took out a policy of insurance on his life in the 
 simi of $10,000, payable on his death to B, an old college 
 friend, who was not related to him, and who had no insurable 
 interest in his life. When A died the company refused to 
 pay the policy, claiming that it was void originally as a 
 wager policy, but ofiered to return to A's estate all the 
 premiums paid, with interest. B consults you. What would 
 be your advice? 
 
 221. 
 
 21. A policy of fire insurance on B's dwelling-house pro- 
 vided " that this entire policy * * * ghall be void 
 * * * if any change take place in the title or possession 
 of the subject of insurance." While the policy was in force 
 B executed and delivered to C a deed of the property, ab- 
 solute in form, but, in fact, given as security for a debt. 
 B remained in possession, but while the deed being on record 
 was outstanding a fire took place and the premises were dam- 
 aged in the amount of the policy. The company refuses to 
 pay because of the deed and B consults you. What would 
 be your advice? 
 
 222. 
 
 22. A delivered to B, a miller, 10,000 bushels of wheat, 
 to be ground, the latter to return to A therefrom 2,000 bar- 
 rels of flour, the balance, if any, to be retained by the miller 
 for his services. While the wheat was in the possession of 
 the miller it was levied upon by the sheriff under an execu- 
 tion issued on a judgment recovered against him. A then 
 consults you about getting his wheat back. What is the 
 nature of the transaction, and what would be your advice? 
 
 223. 
 
 23. A warehouseman received the goods of A on storage 
 ' for hire and delivered to him a receipt therefor, which ex- 
 
80 BaE ExAMUfATIONS AND COUESES OP StUDT. 
 
 empted him from liability for loss or damage thereto by fire. 
 Subsequently the goods were destroyed by fire while ia the 
 warehouse and A sued the warehouseman for their value. 
 Can A, under any circumstances, maintain his action? If 
 so, what must he establish; if not, why not? 
 
 224, 
 
 24. A sold to B 5,000 watch cases warranted to be like 
 sample exhibited, at the agreed price of five dollars each. 
 The goods were in existence and were delivered on the day 
 specified therefor. The watch oases were not equal to the 
 sample, a fact which B determined at once, upon inspection. 
 B retained the goods, and neither returned nor offered to re- 
 turn the same, and subsequently sold them, in due course 
 of business, for their actual value, by reason of which he 
 lost $5,000 on the transaction. B is now sued for the con- 
 tract price of the goods and consults you as to his right 
 to offset against the claim, his damages as hereinbefore set 
 forth. What would be your advice? 
 
 225. 
 
 25. A, by a valid contract in writing, made and executed 
 on January 2, 1901, sold to B 10,000 tons of coal, at the 
 agreed price and value of five dollars per ton, the same to 
 be delivered to B at his warehouse in the city of X on De- 
 cember 1, 1901. On February 1, 1901, B met A and said: 
 " I've changed my mind about that 10,000 tons of coal, you 
 need not deliver it." A consults you. If B will not accept 
 the coal, he does not want to tender it because of ita bulk, 
 nor does he desire to wait until December first to know 
 B's final action. What would be your advice, and what can 
 A do under the ciicumstances! 
 
Bae Examinations and Courses of Study. 81 
 
 EXAMINATION PAPER, 
 No. 5. 
 
 AFTERNOON — FOUR HOURS. 
 
 226. 
 
 1. Upon the trial of an action for conversion against A and 
 B as joint tort-feasors, the plaintiff gave no direct proof 
 against either of the defendants, except the admissions of A, 
 which were admitted against objection and clearly showed 
 that both A and B had jointly committed the tort act. A 
 verdict was rendered against A and B. What should be the 
 result of an appeal ? Give your reasons. 
 
 227. 
 
 2. On the trial of an indictment for felony against an 
 infant, the prosecution proved the act and rested. The de- 
 fense then proved that the accused was ten years old and 
 rested. 'No other evidence was given. The attorney for the 
 prisoner then moved for a direction to acquit, and the pros&- 
 cution asked that the case be sent to the jury. What should 
 be the decision of the Court, and why i 
 
 228. 
 
 3. A brings an action against B to recover damages in- 
 flicted by B on C, his vnie, which caused her death. Upon 
 the trial A was asked to state a conversation between him and 
 C, which occurred just before her death, to the effect that it 
 was B who inflicted the injuries. This was objected to by 
 counsel for B. No other proof against B could be procured. 
 What was the ruling of the Court and why ? State fully, with 
 your reasons. 
 
82 EaE EXAMIIS-ATIOWS AND COUESES OF StuDT. 
 
 229. 
 
 4. In preparing a case for trial, as counsel for the plaintiff, 
 you Lave interviewed a man who is cognizant of certain facts 
 in the case. He has stated to you that he saw the Sefendant 
 sign a certain paper, which fact you desire to prove. Upon 
 the trial you call him as your witness, ask him if he saw the 
 defendant sign the paper in question, and he answers : " 'So, 
 I did not see the defendant sign it; I saw A sign it in the 
 defendant's name." You thereupon interrogate the witness 
 in respect to his previous declarations. Counsel for the de- 
 fendant objects, upon the ground that you are cross-examin- 
 ing and impeaching your own witness. Should objection be 
 overruled or sustained ? Give your reasons. 
 
 230. 
 
 5. A, the publisher of a newspaper, is defendant in an 
 action for libel brought by B upon a statement published in 
 A's newspaper to the effect that B is threatened by suit for 
 breach of promise by a young lady prominent in society 
 circles and that B and his friends are attempting to bring 
 about a reconciliation, but the young lady insists on B marry- 
 ing her. The complaint did not aver special damages. On 
 the trial B offered to prove that at the time of the publication 
 by A he was a married man. This was objected to by the 
 defendant; the objection was overruled and the evidence was 
 admitted over the defendant's exception. Was the exception 
 well taken ? Give your reasons. 
 
 231. 
 
 6. You have been assigned by the Court to defend a pris- 
 oner indicted for manslaughter, and you are preparing for 
 trial. Your client has no money. You cause an important 
 witness to be subpoenaed, but he refuses to attend the trial, 
 unless he is paid witness fees. How can you secure the at- 
 tendance of the witness ? State fully. 
 
 232. 
 
 7. A is driving along a country road and overtakes B, a 
 stranger, who is on foot, and invites him to ride. B accepts 
 
Bae Examinations awd CotrESEs of Studt. 83 
 
 the invitation and deftly picks A's pocket of his purse con- 
 taining $100 without A's knowledge. A discovers his loss, 
 accuses B of taking it and demands its return. B leaps out 
 of the "Vragon and tries to escape, but A follows him, and B, 
 in order to retain possession of the stolen property, draws a 
 revolver and intimidates A and makes good his escape. What 
 is the highest degree of crime with which B can be charged ? 
 Give your reasons. 
 
 233. 
 
 8. Upon the trial of a prisoner for burglary the evidence 
 produced by the prosecution and defense was conflicting. 
 The Court charged the jury that they must carefully weigh 
 the testimony submitted in favor of the people and the de- 
 fendant and determine the question of the guilt or innocence 
 of the prisoner upon the preponderance of evidence. Counsel 
 for the prisoner excepted to the charge. The prisoner was 
 convicted. State whether or not the charge was erroneous. 
 Give your reasons. 
 
 234. 
 
 9. A conductor on the X Railroad, while in charge of the 
 train, detained by force a passenger and refused to allow him 
 to alight at his station because he believed him to be Y, a 
 notorious criminal, for whose arrest the State had offered a 
 large reward. The passenger, who was not Y, was subse- 
 quently identified as a reputable citizen by several other pas- 
 sengers and finally set at liberty by the conductor. The pas- 
 senger brought an action against the railroad company for 
 damages for his arrest and detention, and the question arises 
 as to the liability of the company. State your opinion and 
 the reasons therefor. t^ 
 
 235. 
 
 10. A feloniously stole B's horse and was thereafter sued 
 by B in an action to recover its value. A did not defend and 
 B obtained judgment by default. Execution was issued on 
 the judgment, which was returned unsatisfied. In the mean- 
 time A presented the horse as a gift to C, who knew all the 
 facts concerning A's title. B now brings an action in replevin 
 against to obtain possession of the horse. If A had de- 
 
84 Bae Examinations and Coueses of Study. 
 
 fended, could he have prevented judgment, and has C any 
 defense to the action in replevin ? State your reasons. 
 
 236. 
 
 11. A brings an action against B, setting forth in his com- 
 plaint all the necessary allegations constituting his liability 
 to X for malicious prosecution, and then an allegation of the 
 assignment by X of that cause of action to A, the plaintiff. 
 B interposes a demurrer to A's complaint as not stating facts 
 sufficient to constitute a cause of action. Judgment for 
 whom, and on what ground do you base your answer ? 
 
 237. 
 
 12. A devised and bequeathed his entire estate both real 
 and personal, each of the value of $50,000, to the X Asylum, 
 a benevolent and missionary society organized under the act 
 of 1848 (chap. 319, Laws 1848). Bis wiU was made on 
 January 3, 1902, and he died on February 4, 1902, leaving 
 no wife, child or parent him surviving; his only heir-at-law 
 and next of kin being a sister. Question arises as to the 
 validity of the will. What do you say. Give your reasons. 
 
 238. 
 
 13. A makes a will and by it bequeaths his entire estate, 
 consisting of $30,000 in government bonds, in the manner fol- 
 lowing : 
 
 Five thousand dollars to his only child, X, and the re- 
 mainder to his wife. Thereafter he has another child bom 
 unto him and dies without changing his will, leaving his two 
 children and his wife his sole heirs at law him surviving. 
 What is the effect of his death and how will his estate be 
 divided ? 
 
 239. 
 
 14. A, who was but twenty years of age, made her last will 
 and testament whereby she bequeathed all her personal prop- 
 erty, amounting to $10,000, to B, and devised her real estate, 
 it being of the same value, to 0, both being her brothers. She 
 left her surviving a husband, to whom a child was born alive, 
 
Bab Examinations and Coueses of Study. 85 
 
 issue of her marriage, also a father, beside her two brothers. 
 Her mother and the child were dead and she left no living 
 descendants. The real estate did not come to A on the part 
 of her mother. What do you say as to the will being valid or 
 not? If the will is probated, how will the property be 
 divided or descend ? 
 
 240. 
 
 15. A and B entered into a written contract whereby A 
 sold and was to convey to B a valuable house and lot on the 
 following day, when B was to pay the purchase price and 
 take his deed from A, and the contract was to be completed. 
 That night, without the fault of A or B, the house, which 
 was nine-tenths of the value of the property, burned and was 
 totally destroyed. In whom was the equitable title at the 
 time of the fire, and upon whom does the loss fall, and for 
 what reasons ? What equitable maxim applies ? 
 
 241. 
 
 16. A and B sold and conveyed to C certain real property 
 for $12,000. One-half the purchase price was paid down, 
 and for the other one-half made separate mortgages to A 
 and B for $3,000 each. The two mortgages were recorded 
 at the same time, but it was orally agreed between A and B 
 at the time of the transaction, in consideration of A's accept- 
 ing the mortgage, that his mortgage should have preference 
 over B's. Subsequently B assigned his mortgage to X, who 
 paid full value therefor and took the mortgage in good faith, 
 believing the two mortgages to be equal and concurrent liens 
 on the property. In an action by A to foreclose his mortgage 
 he made X a party defendant, claiming that X was a subse- 
 quent lienor. X defends, insisting that the mortgages are 
 equal and concurrent liens. How will it be decided ? Give 
 your reasons. 
 
 242. 
 
 17. A, who has a valid claim against B, consults you in 
 regard to collecting it. You investigate and find that B is 
 insolvent, having just transferred a valuable house and lot to 
 
86 Bab Examination's and Coueses of Study, 
 
 his wife withotit consideration. What course of legal pro- 
 cedure would you follow to collect the debt? State fully, 
 giving each step of your proceeding in its proper order. 
 
 243. 
 
 18. The annual meeting of the X corporation is required 
 by its by-laws to be held On October tenth in each year, at 
 which time a board of directors is to be elected. It failed to 
 meet during the years 1899, 1900 and 1901, and the board 
 of directors elected in 1898 is still acting. What is youi 
 opinion of the situation in so far as it concerns the validity 
 of the acts of the board of directors since October 10, 1899 ? 
 Give your reasons. 
 
 244. 
 
 19. A was in the employ of the X corporation under a con- 
 tract of service for one year from January 1, 1900, at the 
 annual salary of $1,200, payable monthly. On the 1st day 
 of July, 1900, the X corporation consolidated with another 
 corporation, known as the Z corporation, and became merged 
 therein, and A was throvni out of employment On January 
 1, 1901, A began an action against the X corporation to re- 
 cover for the six months' salary due and unpaid on his con- 
 tract. Can he maintain the action ? If so, why so ? If not, 
 why not ? 
 
 245. 
 
 20. Your client is a judgment creditor of a stock corpora- 
 tion and desires to bring an action against the stockholders of 
 record on a certain day to enforce his judgment. He does 
 not know who the stockholders are and asks your advice as to 
 how to ( btain the names thereof. What do you say J 
 
 246. 
 
 21. A husband procured from his wife a written confes- 
 sion of her adultery with X and asks you to bring an action 
 for divorce predicated thereon. He has no other evidence. 
 What would be your advice to him ? 
 
Bae Examinations and Coueses of Studt. 87 
 
 247. 
 
 22. An infant contracted with A to work for him for one 
 year at the agreed wages of fifty dollars per month, payable 
 at the end of the term. He worked for six months and quit 
 without cause. His guardian now sues A for $600, being for 
 the six months' work, at $100 per month. A consults you. 
 What are the rights of A and the infant under the circum- 
 stances disclosed? 
 
 248. 
 
 23. X, an invalid, boarded with A, who maintained the 
 house. A's wife, while attending to the household duties and 
 engaged in no other occupation, nursed A, with the knowl- 
 edge and consent of her husband. The services rendered by 
 her were reasonably worth $500, for which sum the husband 
 brought suit, the wife making no claim therefor. Question 
 arises as to whom did the claim belong under the circum- 
 stances, to the wife or to the husband 2 What do you say? 
 Give your reasonst 
 
 249. 
 
 24. The Legislature passed a law entitled "An Act to Pro- 
 vide for an Electric Light System in the Village of X." The 
 act consisted of fifteen sections, fourteen of which related to 
 the establishment of the electric light system. Section fifteen 
 thereof read as follows: " Sec. 15. The ofiice of overseer of 
 the poor of the village of X is hereby abolished." The over- 
 seer had but served one year of a three-year term. He now 
 consults you as to the right of the Legislature to abolish his 
 office during his term and as to the legal effect of the above 
 act. What do you say ? Give your reasons. 
 
 250. 
 
 25. An assessment for a local improvement was levied 
 upon the property of A and proceedings were taken to sell the 
 same, because of the non-payment thereof. The act of the 
 Legislature under which the assessment was made provided 
 as a condition to its validity that the advertisement for bids 
 to do the work should be published twice a week, for three 
 
88 Bae Examinations and Coueses of Study. 
 
 weeks, in three newspapers published in the town where the 
 property was situated. On investigation it was found that 
 the advertisement had been published in but one newspaper, 
 and then only once, and that a subsequent Legislature had 
 passed a law confirming, validating and relevying the assess- 
 ment as made, notwithstanding the fact that the bids had not 
 been advertised for as required by the original act. Your 
 opinion is asked as to the validity of that law. Give your 
 reasons. 
 
Bae Examinations and Courses of Study. 
 
 EXAMINATION PAPER. 
 No. 6. 
 
 FORENOON — FOUR HOURS. 
 
 251. 
 
 1. Your client is sued for goods sold and delivered. He 
 brings you the complaint and a receipted biU for the account 
 thereiu set forth. Draw an answer, without verification. 
 
 252. 
 
 2. The bids to do and perform a public contract have been 
 opened. The statute requires that the same be let to the 
 lowest responsible bidder. A, who is a bidder, fulfils all the 
 requirements, yet the public board, whose duty it is to award 
 the contract, neglects to do so. A, who wants a speedy deter- 
 mination, consults you. What proceeding could you take 
 under the circumstances, and narrate the procedure thereof. 
 
 253. 
 
 S. An imincorporated political club in your district, with 
 300 duly elected members and a full set of officers, is indebted 
 to your client for the rent of the building in which it meets. 
 It owes the money and has club property. How, and against 
 whom, can you maintain an action to recover the rent ? 
 
 254. 
 
 4. Two executions against the property of X, a Judgmeni 
 debtor, were issued out of a court of record, and delivered to 
 the sheriff of the county where X lived, for collection. One 
 was in favor of A, for $1,000, and was delivered to the sheriff 
 for execution, on January 2, and the other in favor of B, for 
 
90 Bar Examinations and Cousses of Sttjbt. 
 
 $1,000, was delivered on January 3. The sheriff made no 
 levy under A's execution, but did under B's, and sold there- 
 under personal property of the judgment debtor, to the 
 amount and value of $1,000. Both executions still being in 
 the sheriff's hands, A claims the proceeds of the sale. State 
 the rule governing the transaction. 
 
 255. 
 
 5. A sued B in tort, for the wrongful conversion of certain 
 goods. The case was tried and it was adjudged therein that 
 there was a bona fide sale of the goods in question, and judg- 
 ment was rendered in the action for the defendant, on the 
 merits. Can A now sue B to recover the value of the goods ? 
 If so, why so J if not, why not ? 
 
 256. 
 
 6. In an action on contract, the complaint on the face 
 thereof, showed that the action had been commenced more 
 than six years after the cause of action had accrued. Is it 
 necessary that defendant, under the circumstances, should 
 plead the statute in order to avail himseK thereof? State 
 your reasons for your answer. 
 
 257. 
 
 7. A tenant, under a lease which expired on April 1, 1902, 
 in 1901 planted a crop of winter wheat, which could not be 
 harvested until after April 1, 1902. In 1902, subsequent to 
 April first, the landlord, who was then in possession, har- 
 vested the crop, which was worth $1,000. He claims its 
 entire ownership, as against the former tenant. The seed 
 planted by the latter was worth $250. State the rule of law 
 governing the transaction, and to whom does the wheat be- 
 long. 
 
 258. 
 
 8. A executed a deed, in and by which, he granted an 
 estate for life to B, and then an estate for life to C, to take 
 effect upon the death of B, and then successive life estates 
 to D, E and F, respectively, then the fee to G. Give yoiir 
 opinion as to the effect and validity of the deed. 
 
Bab Examinations and Coueses of Study. 91 
 
 259. 
 
 9. A, being about to purchase an estate frona B, caused 
 careful search to be made of the records and found that there 
 ■was no claim, lien, or incumbrance thereon, on record. A 
 few minutes before he closed the transaction, 0, who had no 
 interest and no authority in the premises, volunteered the in- 
 formation to A that D had and held an unrecorded mortgage 
 on the property of $10,000. A did not believe 0, and relying 
 upon the record, completed his purchase, and paid the full 
 cash value of the property therefor, and pxit his deed on 
 record. D did hold the mortgage, as above set forth, which is 
 still unrecorded. What are the rights of A and D under the 
 circumstances ? 
 
 260. 
 
 10. The Z Railroad Company received from A several 
 packages of machinery for transporation and delivery to B 
 in Boston, and it issued to A a bill of lading which contained 
 the provision that the packages were to be transported at the 
 " owner's risk." A portion of the machinery was lost in 
 transit and A brought an action against the railroad company 
 to recover the value thereof, alleging negligence. Upon the 
 trial the plaintiff conclusively proved the negligence of the 
 defendant, but counsel for the defendant railroad company 
 insisted that A could not recover because of the condition con- 
 tained in the bill of lading. Who wins ? Why ? Give your 
 reasons. 
 
 2S1. 
 
 11. On July first. A, B & Co., brokers, doing business in 
 ~New York city, wrote to 0, at Boston, Mass., offering to sell 
 him 100 shares of the capital stock of the X Co., at 90, if the 
 offer should be accepted within five days. The letter was 
 received by C, July second, and the following day he wrote 
 A, B & Co., accepting their offer and directing that the cer- 
 tificate be delivered at the office of his banker in New York, 
 where payment therefor would be made. This letter was duly 
 mailed, but was never received. Meantime the price of the 
 stock rose to 150. C tendered to A, B & Co., $9,000 and de- 
 manded the stock. A, B & Co. replied that not hearing from 
 
92 BaS ExAMINATIOIfS AND COUESES OF StUDT. 
 
 C, they had sold the stock to another party at a higher pric& 
 C brings an action against A, B & Co. to recover damages for 
 breach of contract. Can he recover ? State fully, with yoiir 
 reasons. 
 
 262. 
 
 12. A, B & C were copartners, under an agreement 
 wherein it was stipulated that the partnership should ter- 
 minate December 31, 1900. The copartnership occupied 
 premises upon which it made valuable improvements and by 
 the joint efEorts of the members thereof, built up a valuable 
 good will and increased the rental value of the real estate. 
 During the year 1900, without the knowledge of his copart- 
 ners, A took a renewal lease in his own name, for his own 
 benefit, of the premises occupied by the firm, to take effect 
 January 1, 1901. B and O consult you as to their rights and 
 remedies under the circumstances. What would be your 
 advice? Give your reasons. 
 
 263. 
 
 13. loaned to the firm of A & B, $5,000, to be used 
 in the firm business for one year under an agreement that 
 C was to receive one-third of the profits of the firm during 
 that time, and at the end of the year, if he did not then 
 decide to become a partner, he was to be repaid his $5,000. 
 Before the expiration of the year the firm became insolvent 
 and a creditor of the firm brings an action against A, B and 
 C, as copartners, claiming, by reason of the facts stated, that 
 C is a copartner or member of the firm. C defends. On 
 what probable ground? Judgment for whom, and why? 
 State your reasons. 
 
 264. 
 
 14. A made his promissory note, for value, to B, who 
 before maturity, and for value, indorsed the note to 0. A 
 short time before the note became due, B, fearing that A 
 would not pay the note, induced A to assign aJl his property 
 to him for his protection. Wben the note became due, it was 
 not paid by A, and 0, who was still the holder thereof, forgot 
 to give notice to B, as indorser, of presentation and non-pay- 
 
Bae Examinations and Coueses of Studt. 93 
 
 ment. C brings suit against B, upon his indorsement, and B 
 defends on the ground that he did not receive notice of 
 presentment and non-payment. Who wins^ and why! 
 
 265. 
 
 15. A duly made and delivered his promissory note to B, 
 who indorsed the same for value to 0, before maturity. The 
 day before the note was due, A gave C his check on the X 
 Bank for the amount of the note, asking him to send the note 
 to him by mail. had the check certified by the cashier of 
 the X Bank, but did not collect it. The same day, both A 
 and the X Bank became insolvent. The following day, the 
 day of the maturity of the note, caused notice of protest 
 to be given to B as indorser. C brings an action against B, 
 who defends. Who wins, and why? Give your reasons. 
 
 266. 
 
 16. A was employed by B to purchase for him certain 
 real estate to be sold at public auction. A attended the sale, 
 bid off the property in his own name, and paid ten per cent, 
 of the purchase money in accordance with the terms of sale, 
 without disclosing to either the owner of the real estate or 
 the auctioneer that he was acting in the character of agent 
 for B. Before the payment of the remainder of the pur- 
 chase money became due, B becajne insolvent. The owner 
 of the property demanded payment of A, which was refused. 
 Suit is brought against A to recover the amount remaining 
 impaid and he defends on the ground that in making the 
 purchase he was acting as B's agent. Is his defense good! 
 State fully, with your reasons. 
 
 267. 
 
 17. A was the owner of a promissory note made by B, pay- 
 able to the order of A. Upon the maturity of the note, A 
 handed it, without indorsement, to C, with directions to col- 
 lect the interest due and obtain from B a new note with an 
 indorser. obtained from B the whole amount due upon 
 
94 BaE EXA.MINATIONS AND COTJBSES OB" StUDT. 
 
 the note in cash, principal and interest, surrendered the note 
 to B, paid the interest to A, and absconded with the prin- 
 csipal. A sues B for the principal. Can he recover! State 
 your reasons. 
 
 288. 
 
 18. John Doe "was elected cashier of the X Bank and be- 
 fore assuming office was required to give a bond to the bank 
 for the faithful performance of his duties as cashier in the 
 sum of $50,000. He requested Eichard Roe to become 
 surety upon his bond but Roe refused unless John Stiles 
 would first sign the bond as surety. Subsequently Doe pre- 
 sented the bond to Roe purporting to bear the signature of 
 Stiles as surety, and requested Roe to sign as cosiirety, with 
 which request Roe complied. Doe defaulted as cashier and 
 the X Bank brought suit against Doe, Roe and Stiles on 
 the bond. Doe made no defense. Roe defended on the 
 ground that he signed the bond relying upon the genu- 
 ineness of Stiles' signature, kno^\■i]^g him to be solvent; that 
 the signature of Stiles was forged and therefore he was not 
 liable. Upon demurrer to Roe's answer, what should be the 
 decision of the Court ? Give your reasons. 
 
 269. 
 
 19. A leased to B a store, for five years, at an annual ren- 
 tal of $1,000, the lease providing that by giving written 
 notice thirty days before the expiration of said term," B 
 could, at his option, continue his use and occupancy of the 
 store for five years longer at the same rental. 0, by in- 
 dorsement on the lease, " for value received, guaranteed 
 the payment of the rent stipulated in within lease." B 
 paid his rent for the stated term of five years, gave due 
 notice, and continued under his option to use and occupy 
 the store. He defaulted in payment of the rent at the end 
 of the first year of the extended term. A makes claim 
 against 0, under his guaranty, for $1,000 rent. G insists 
 that his liability, as surety, ended with the expiration of the 
 stated term of five years and that he is not liable. Who is 
 right and why? 
 
Bab Examinations and Coueses of Study. 95 
 
 270. 
 
 20. A insured liis residence and its contents in the X Com- 
 pany, for the sum of $8,000. The house was set on fire, 
 and, with the contents, was totally;, destroyed by the wrong- 
 ful and criminal act of B, who was amply responsible to re- 
 spond for the amount of damages caused. The actual value of 
 the property destroyed was $10,000. Upon B being accused 
 by A, he confessed, and immediately paid A $10,000, his 
 entire loss, and the latter gave him a release of all damages 
 sustained. Thereafter A, having duly made and delivered 
 proofs of loss, brought action on his policy against the X 
 Company to recover $8,000, the amount of his insurance. 
 The X Company defends. Judgment for whom, and why, 
 and what principle is involved? 
 
 271. 
 
 21. A authorized B to receive and receipt for $20,000 
 government bonds belonging to him at Los Angeles, Cali- 
 fornia, and bring and deliver the same to him at ISTew York 
 city, which B agreed and undertook to do. Whereupon A 
 procured for his own benefit, as beneficiary, an insurance 
 on the life of B, for the sum of $20,000, for the term of 
 one year, loss, if any, payable to him, A. One month 
 thereafter, while B was then enroute with the bonds, under his 
 agreement, he was accidentally killed in a railroad wreck, 
 the bonds, however, were secured and duly turned over to 
 A, who suffered nothing by the accident. The X Company 
 offers to restore to A the premium paid, but refuses to pay 
 the policy. Proofs of death have been duly made and 
 served, and A sues the X Company to recover amount of 
 policy. The X Company defends. On what probable 
 groimd? Who wins, and for what reason? 
 
 272. 
 
 22. A delivered to B's mill, 100 pine logs, under an agree- 
 ment that B should saw the same into boards within three 
 months, and that each party should have half the boards. 
 When B had sawed fifty of the logs, he sold the boards 
 
i^G Bab Examinattons and Coueses of Studt. 
 
 therefrom to C, intending to turn over the boards from 
 the remaining fifty logs when sawed (which were equal, in 
 size and quality, to those already sawed) to A, as his half 
 under the agreement. A immediately, sued B in conversion 
 for the value of the boards sold. What was the legal rela- 
 tion of A and B in and to the boards sold, and who will 
 win in the action, and for what reason? 
 
 273. 
 
 23. A procured from B, a livery man, for hire, a horse 
 and carriage, representing that he was to drive only, to the 
 village of C and return. A drove to C, and then twelve 
 miles beyond, to the village of D, where the horse was killed 
 by a runaway team colliding with it. B sued A for the 
 value of the horse, setting up only the foregoing facts in his 
 complaint. A answers, admitting the allegations of the com- 
 plaint, and then sets up aifirmatively that he exercised or- 
 dinary care in the use of the horse, and that its death was 
 not caused or contributed to by his misuse or negligence. 
 B demurred to the affirmative answer. Judgment for 
 whom? Give your reasons, and state the relation of A and 
 B in the transaction. 
 
 274. 
 
 24. A sold and delivered a horse to B for which the latter 
 was to pay one month thereafter $500, on the condition 
 that B might, at his option, after using the horse ten days, 
 then immediately return it if it was not satisfactory. On 
 the ninth day thereafter (B having in good faith made up 
 his mind to return the horse the next day), C levied upon 
 and afterward sold the horse on execution against B. To 
 whom shall A look for his $500? State your reasons. 
 
 275. 
 
 25. A negotiated with a jeweler for the purchase of a 
 gold watch, price $300, which was satisfactory, but wanted 
 six months' time in which to pay, to which the jeweler as- 
 sented, and it was agreed that A should give his note, with- 
 out an indorser, for $300, with interest, at six months, 
 
Bae Examinations and Coueses of Study. 97 
 
 therefor. The jeweler delivered the watch and requested 
 of A, his note, when A replied, " It has just occurred to me 
 that I have bound myself with my partner not to give notes 
 and I cannot do it." A declined to give the note, but offered 
 the jeweler a diamond stud of the value of $500 as security, 
 which the latter refused to accept, and immediately sued A 
 for $300, the purchase price of the watch. A defends, 
 claiming that the debt is not due, that he purchased on six 
 months' credit. A is amply responsible and was known so 
 to be by the jeweler at the time of the sale. Judgment foi 
 whom, and whjl 
 7 
 
98 Bae Examinations and Coueses op Study. 
 
 EXAMINATION PAPER, 
 No. 6. 
 
 AFTERNOON — FOUR HOURS. 
 
 276. 
 
 1. On the trial of an action against a railroad company 
 for damages for negligently causiag the death of a person, 
 the question was as to the absence or presence of the flag- 
 man from his post of dutj^ at the time of the accident A 
 witness for plaintiff, who was present just after the accident, 
 was asked to testify as to what he heard the by-standers, 
 who saw the accident, say in the absence of the flagman, 
 concerning his being present when the accident occurred. 
 Objection is made to the testimony. What should the rul- 
 ing of the Court be, and why? 
 
 277. 
 
 2. A, who was shot by B, was brought immediately there- 
 after to a hospital for treatment. His attending physician 
 knew that A was about to die and had him make and sign 
 the following declaration and swear to it before a notary 
 public: " I, A, on the 3d day of January, 1902, was shot 
 and wounded by B," declaring, in addition, the circumstances 
 surrounding the transaction. Within an hour thereafter he 
 died of the wound mentioned in the declaration as having 
 been inflicted by B. B was subsequently indicted for the 
 murder of A, and on his trial the declaration was offered 
 in evidence by the prosecution. Objection was made thereto. 
 What should the ruling of the court be, and why? 
 
 278. 
 8. A merchant claimed to have sold to a customer 100 
 barrels of flour, and that the same were delivered by X, a 
 
Eae Examinations and Coueses of STumr. 99 
 
 cartman. The customer denied the delivery and stated " if 
 X will say that he delivered the goods, I will pay for them." 
 X stated that he had delivered the same, but the customer 
 still refused to pay. On the trial of an action for the goods 
 question arises as to the admissibility and effect of the cart- 
 man's statement. Is it, or is it not, admissible? State the 
 rule and the effect, if any, of the cartman's statement on 
 the liability of the merchant. 
 
 279. 
 
 4. Tou wish to prove on the trial of an action the items 
 of an account for work done and materials furnished. Your 
 client, the plaintiff, has no present recollection of the items, 
 but has a memorandum of the transaction. What must 
 you show to prove the items? 
 
 280. 
 
 5. On the trial of an action for damages for slander in 
 stating generally that the plaintiff was a thief, the defend- 
 ant offered testimony ia mitigation of damages to show 
 that on or about the day he uttered the words charged the 
 plaintiff actually stole defendant's horse. Objection was 
 mad& Wliat should the ruling of the Court be, and why ? 
 
 281. 
 
 6. On the trial of your client for murder you wish to 
 qualify as a juror, a talesman, who, in response to a question 
 from the District Attorney, has testified that he has a present 
 impression or opinion as to the guilt or innocence of the de- 
 fendant. Can you do so? If so, how; if not, why not? 
 
 282. 
 
 7. A, under circumstances from which a jury could cor- 
 rectly infer an intent to shoot off and discharge the pistol, 
 pointed a loaded pistol at B, who was within shooting dis- 
 tance. Before he shot or did anything further he was dis- 
 armed. Of what crime was he guilty, if any, and whj? 
 
 283. 
 
 8. A was indicted and tried for the crime of robbery, in 
 that being armed with a dangerous weapon, he unlawfully 
 
100 Bab Examibtation's and Coubses of Studt. 
 
 took from the person of B, against his will, by means of 
 force, violence and fear, the sum of $500. The jury found 
 him guilty of larceny from the person. Will the verdict 
 stand ? If so, why so ; if not, why not ? 
 
 284. 
 
 9. A railroad train was derailed, resulting in the injury of 
 a trespasser on the private land of the railroad company. 
 You are asked to advise the railroad company as to the 
 degree or extent of care which it owed to the person in- 
 jured. What is jour advice? State fully, with your 
 reasons. 
 
 285. 
 
 10. An infant of the age of seven years was injured by a 
 railroad locomotive at a highway crossiag. Upon the trial 
 of an action against the railroad company to recover damages 
 for the injuries sustained by the child it became necessary 
 to determine whether or not the child was sui juris. How 
 was the question determined, and upon what did it depend? 
 State fully, with your reasons. 
 
 286. 
 
 11. A was the owner of a valuable horse which escaped 
 from the paddock and for which A made search in vain. 
 Subsequently the horse was taken up in the highway by a 
 farmer. B, learning the facts, went to A, and, concealing 
 from him his knowledge that the horse had been found, 
 offered A twenty-five dollars for the horse, being less than 
 ten per cent, of its value, which A accepted and gave to B' a 
 bill of sale of the same, B exhibited the bill of sale to the 
 farmer and demanded and obtained possession of the horse. 
 Upon learning the facts A brings an action against B to 
 recover the value of the horse, less the amount received by 
 him from B, on the ground that the sale had been procured 
 by fraud. Can he recover? Answer fully, with your reasons. 
 
 287. 
 
 12. A testator in and by his last will directed his executor 
 to turn all of his real and personal estate into cash and t« 
 
Bab Examinations and Coueses of Study. ":101 
 
 V 
 
 divide the proceeds thereof equally among his wife and etil-' 
 dren, share and share alike. There is $100,000 in real estate 
 and but $10,000 in personalty. The widow claims dower 
 in the real estate in addition to her distributive share. State 
 your opinion, with your reasons. 
 
 288. 
 
 13. A made his will devising certain lands to the children 
 of his son, George, and of his daughter, Susan, to be divided 
 among them, share and share alike, as they severally become 
 twenty-one years of age. George and Susan each have, 
 two children bom before the death of A and one child bom 
 after his death. "What are the rights under the will of the 
 several grandchildren? Give your reasons. 
 
 289. 
 
 14. A died leaving a will whereby his son, B, was cut off 
 from all share in his estate. B contested the probate of 
 the will, but was defeated and the will was admitted to pro- 
 bate. Upon appeal by him to the Appellate Division and 
 to the Court of Appeals the probate was sustained. One 
 year after the wiU was admitted to probate, B consults you 
 and asks what further or other remedy, if any, he has, and 
 how it can be applied? What do you advise? State fully. 
 
 290. 
 
 15. A instructed X & Co., his stock brokers, to sell cer- 
 tain shares of stock whenever the market price thereof 
 should reach $150 per share. That price was reached in 
 the manket, and the following day A called on X & Co., 
 and inquired if they had sold his shares. X & Co. stated 
 that they had not sold, as the market looked strong and 
 they thought the stock would reach a higher price. A 
 said nothing and went away. A few days later the market 
 price of the stock began to decline and X & Co. sold the 
 shares at $125 per share. A sues X & Co. for the loss 
 arising from the subsequent depreciation in the price of the 
 stock. Can he recover? Answer fully, stating your 
 reasons. 
 
102 Bab ExAMnrATioNS aut> Coueses of Stxtoy, 
 
 291. 
 
 16. A purchases certificates representing an interest ia 
 an illegal trust. The certificates contain a stipulation bind- 
 ing their holder to all the terms of the agreement on which 
 the trust was formed. A begins an action in equity to se- 
 cure, through an accounting and distribution, profits and 
 assets alleged to have been acquired by the trust under the 
 agreement by which it was formed. Is A entitled to the 
 relief asked for? If so, why; if not, why not? State fully, 
 giving your reasons. 
 
 292. 
 
 17. A person who was injured in a railroad accident set- 
 tled with the railroad company, received a sum of money 
 and gave a release of all claims and demands against the 
 company. He believes that he has been overreached by the 
 attorney of the railroad company in maldng the settlement 
 and asks you to advise him what steps he must take to put 
 himself in a position to obtain adequate compensation, and 
 what remedy he has, if any. What is your advice? What 
 equitable maxim is involved? Answer full^ with your 
 reasons. 
 
 293. 
 
 18. A corporation authorized by its charter to engage in 
 the telegraph and telephone business only, entered into a 
 written contract with the city of Albany to manufacture 
 electricity for, and to furnish electric lights for lighting 
 the city, its streets, etc., for the term of five years, to com- 
 mence six months thereafter. Two months thereafter .the 
 corporation repudiated the contract and notified the city 
 that it should not perform. What, if any, remedy has the 
 city against the corporation for its breach of contract, and 
 why! 
 
 294. 
 
 19. The directors named in the charter for the first year 
 of the X corporation, who held over and continued as direct- 
 ors, because of their neglect and refusal to adopt by-laws 
 enabling the stockholders to hold an annual election for 
 directors after the expiration of the first year, voted to and 
 
Bab Examinations and Coueses of Sttidt. 103 
 
 did employ A as the corporation's attorney for the ensuing 
 year, at a salary of $3,000. A acted as such attorney for 
 the year, when a new board was elected, which dispensed 
 with his services and refused to pay him anything for hia 
 said services rendered. He sues the corporation for $3,000. 
 Will he recover? If so, why; if not, why not? 
 
 295. 
 
 20. The X Street Surface Railway uompany had ohtained 
 the requisite consent of the municipal authorities of the city 
 of Rochester to construct and operate its railway in West 
 Main street of that city, but was unable to obtain the neces- 
 sary consents of the abutting property-owners therefor. How, 
 if at all, can the X Company acquire the legal right to con- 
 struct and operate its road in that street? 
 
 296. 
 
 21. A husband furnished to his wife fifty dollars weeHy 
 to pay the running expenses of their home. The wife by 
 her economy, without the husband's knowledge, during the 
 year saved and accumulated therefrom $700, vdth which she 
 purchased in her own name a horse, carriage and harness. 
 While the same were being delivered to their house, the wife 
 having paid for the same as aforesaid, the sheriff levied upon 
 and subsequently sold the whole outfit on an execution 
 against her husband, all of which she forbade. The wife 
 consults you as to her rights. What would ^ou advise, and 
 for what reason? 
 
 297. 
 
 22. A, the husband, and B, the wrte, were owners of real 
 estate, as tenants by the entirety. A procured a divorce, 
 a vinculo, from B and then married O, and had a son, D, 
 issue of the latter marriage. Then A dies intestate, leaving 
 B, and D him surviving. What are the respective inter- 
 ests of said survivors in the real estate, and how, if at all, 
 were the interests of A and B in the real estate afiected by 
 the divorce! 
 
104 Bab Examinations and Coueses of Study. 
 
 298. 
 
 23. Li the trial of a joint action against husband and wife 
 for an assault upon B, the court charged the jury as fol- 
 lows, to wit: " The wife is liable for her wrongful and 
 tortious acts in this case; the husband is not responsible for 
 her acts, unless they were committed by his coercion or in- 
 stigation, but it is presumed, as matter of law, where the 
 husband is present with his wife, and, seeing, fails to restrain 
 or makes no attempt to restrain her from the commission of 
 such acts, that he not only consents thereto, but he instigates 
 her to such commission and is liable therefor." State 
 whether the charge is correct or not. Give your reasons for 
 your answer. 
 
 299. 
 
 24. The X State Banking Association becoming insolvent, 
 it was ascertained that it had outstanding and in circulation 
 $100,000 of its duly-issued bills and other general indebted- 
 ness of like amount. Its assets, after being reduced to cash, 
 amounted to only $100,000. The question arises how shall 
 the assets be applied on the obligations of the bank. State 
 your reasons. (Assume that there is no Bankruptcy Law.) 
 
 300. 
 
 25. The defendant was regularly tried on an indictment 
 for burglary. Evidence for and ag'ainst was given. The 
 jury acquitted. The presiding judge set the verdict aside as 
 against the weight of evidence, as it clearly was, and ordered 
 a new trial. The defendant appeals. With what result, 
 and for what reasoni 
 
Bae Examinations and Courses os Study, 105 
 
 EXAMINATION PAPER. 
 
 No. 7. 
 
 FORENOON — FOUR HOURS. 
 
 301. 
 
 1. A asks YOU to commence, by the service of a copy of 
 the summons only, an action against B to recover a penalty 
 given by statute. Draw a summons in the action to serve 
 upon the defendant. 
 
 302. 
 
 2. The copartnership between A and B was dissolved by 
 mutual consent. At the time of the dissolution, the firm was 
 indebted to X in the sum of $1,000. X thereafter executed 
 a release of the indebtedness to A, which release exonerated 
 him from all liability incurred by reason of his connection 
 with the partnership. Then X sued B for the full amoimt 
 of the claim. Has B, by reason of the above facts, any de- 
 fense to the cause of action or any part thereof ? Give your 
 reasons. 
 
 303. 
 
 3. A and B are each merchants doing a separate business 
 in the city of jSTew York. They dealt with each other be- 
 tween January 1, 1895, and January 1, 1899. Each kept 
 an account of his transactions with the other, which accounts 
 were mutual, open and current. On January 1, 1899, the 
 date of the last item in A's account, there was a balance due 
 on the aceoimt from B to A of $1,000. A began an action 
 therefor on January 1, 1904. B pleads the statute of limi- 
 tations as a defense to all items prior to January 1, 1898, 
 which, if allowed, will reduce A's claim to $40. Is B's plea 
 good or otherwise ? Give your reasons. 
 
106 Bak Examinations and Courses of Study. 
 
 304. 
 
 4. You procure, as attorney for tlie plaintiff, an order 
 directing the service of a summons upon a non-resident de- 
 fendant without the State, by publication in two newspapers 
 for not less than once a week for six successive weeks, or, at 
 the option of the plaintiff, by service of the summons and a 
 copy of the complaint and order without the State, upon the 
 defendant personally. 
 
 You exercise the last option. When will the defendant so 
 served be in default for failure to appear or answer ? 
 
 305. 
 
 5. The complaint in an action by a corporation alleges 
 " that the plaintiff is a domestic corporation duly organized 
 and existing under and by virtue of the laws of the State of 
 New York." You appear for the defendant and wish to put 
 in issue the existence of the corporation. Draw the clause in 
 your answer necessary to do so. Omit verification. 
 
 306. 
 
 6. A conductor finds a sum of money in a railroad car and 
 turns it over to the company. Each of two persons make a 
 separate demand on the company for the same and one brings 
 action. The company is in doubt as to whom it belongs. 
 
 What course would you advise the company to take ? 
 
 307. 
 
 7. Your client is a tenant in possession of a dwelling- 
 house under a lease having three years to run. The house 
 takes fire and is injured thereby. The tenant consults you as 
 to his right to surrender the premises because of said fire 
 and his liability to pay to the owner rent for the time subse- 
 quent to the surrender. 
 
 State the rule. 
 
 308. 
 
 8. A, the owner of certain premises in the city of New 
 York, leased them to B for the term of five years from May 
 1, 1898, at the annual rent of $5,000 a year payable 
 quarterly. The lease was in writing and B went into posses- 
 
Bab Examinations and Coueses of Study. 107 
 
 sion. On June 2, 1899, B wrote a letter to A stating his 
 intention to abandon the premises at once and to no longer 
 pay rent therefor; he left the same day. To this letter A 
 made no reply. Thereafter A, acting in good faith, and with 
 a desire to diminish his claim against B, let and rented the 
 premises to C for the balance of the term at the annual rental 
 of $4,000, which was the best figure he could procure there- 
 for. A now seeks to hold B for the difference in the rent. 
 B consults you. What do y6u say as to his liability ? Give 
 your reasons. 
 
 309. 
 
 9. A, as landlord, executed and delivered to B, as tenant, 
 a written lease of a certain factory in the city of X for a 
 term of years beginning May 1, 1904, at an annual rental of 
 $1,000. On May 1, 1904, B found X, a former tenant of 
 A, in possession of the demised premises, who wrongfully 
 withheld the same from both A and B. B was compelled to 
 have a factory for use at once, and he thereupon notified the 
 landlord that as he had not given him possession of the factory 
 on May 1, 1904, he elected to terminate the lease, and he 
 liired and entered into possession of another factory. The 
 landlord refused to accept the surrender and proposes to hold 
 B for the rent reserved in the lease. 
 
 B consults you. What do you say as to his liability? 
 Grive your reasons. 
 
 310. 
 
 10. A owned a horse, for which B offered him $500. A 
 at once accepted the offer and it was agreed tliat the horse 
 should be delivered and paid for on the following day. 
 Toothing further transpired until the next day, when B ten- 
 dered the agreed price, demanded the horse, and A refused 
 to perform the contract. The value of the horse was $1,000. 
 On the trial of an action brought by B against A for breach 
 of his contract all these facts, including value, were ad- 
 mitted. Who should have judgment, and why ? 
 
 311. 
 
 11. Where a valid contract was made for the sale and de- 
 livery of specific articles of personal property under which 
 
108 Bae Examinations and Coukses of Study. 
 
 the title did not vest in the vendee, and the property was 
 destroyed by accident, without fault of the veador, so that 
 delivery by him became impossible, is the vendor liable to 
 tlie vendee in damages for non-delivery? Give the reason 
 for your answer. 
 
 312. 
 
 12. A loaned to the iirm of C and D $5,000, to be used in 
 its business for one year, under an agreement that he was 
 to receive one-third of the profits, and if at the end of the 
 year he did not conclude to become a partner, he was to be 
 repaid oiit of the copartnership funds. During that time L 
 sold and delivered to the firm goods which were used in its 
 business, of the value of $1,000. They were not paid for, 
 and L brought an action to recover therefor and made A a 
 party defendant with C and D. A alone defended. At the 
 trial there was no dispute as to the facts, and the only ques- 
 tion of law presented was whether A was liable to the plain- 
 tiff as a member of such firm. What should have been the 
 decision, and upon what ground ? 
 
 313. 
 
 13. A and B were copartners engaged in dealing and 
 speculating in real estate. They owned certain land which 
 they sold to one D, the contract by D being induced by the 
 fraud and false representations of A, which were material, 
 and upon which D relied in making the purchase. When D 
 learned of the fraud he brought an action in fraud to re- 
 cover the price paid for the land, and made both A and B 
 parties defendants. On the trial the court was requested by 
 B to instruct the jury that he was not liable unless he was 
 personally guilty of the fraud charged. The court denied 
 this request, and B excepted. Was the exception well taken ? 
 Give your reasons for the answer. 
 
 314. 
 
 14. Two valid bonds, negotiable by indorsement only, 
 were duly made and issued by the county of S. They were 
 payable to K and delivered to him. E., for a valuable con- 
 sideration and before maturity, by indorsement in blank, 
 
Bab Examinations and Coueses of Study. 109 
 
 duly transferred and delivered them to C. While in the 
 hands of C, thus indorsed, they were stolen. Subsequently 
 they were offered for sale to A, who became a purchaser for 
 a valuable consideration and before maturity. At tliat time 
 K's indorsement upon the bonds had been erased, but of that 
 A had no knowledge. The person offering them, however, 
 falsely personated K and indorsed E,'s name on the bonds 
 and delivered them to A. Afterwards C sued A for the bonds. 
 For whom should judgment be given, and why ? 
 
 315. 
 
 15. A presented to B for his signature a paper which he 
 represented to be a duplicate of an order for certain personal 
 property, which B had already made, and B, without reading 
 or examining the paper presented, signed and delivered it 
 to A. It was in fact not an order but a negotiable promis- 
 sory note, payable thirty days after date. Before it became 
 due C purchased it in good faith and paid a valuable con- 
 sideration therefor. When it became due it was not paid, 
 and thereupon C brought an action on the note against B. 
 
 These facts being conceded, who should have judgment ? 
 Give your reasons. 
 
 316. 
 
 16. A loaned to B $1,000, for which B gave his promis- 
 sory note payable to A's order one year from date, at the office 
 of W. A being subsequently informed by one M, her son- 
 in-law, that B wished to pay the interest and renew the note 
 for one year, gave the note to M, without indorsement, and 
 with instructions to receive the interest and take a new nota 
 indorsed by C for the payment for the principal Before the 
 maturity of the note, however, B left the money to pay it 
 with W at the specified place of payment. When the note 
 became due M presented it at that place with a forged order 
 directing its payment to him. Upon receiving the note and 
 order W, in the presence of B, paid the money to M, who 
 paid the interest to A and absconded with the principal. 
 A sued B for the principal and the foregoing facts were un- 
 disputed. Who should recover, and why? 
 
110 Bae Examistatiows and Cotteses of Study. 
 
 317. 
 
 17. A delivered a certificate of stock to B as collateral 
 security for a loan of $1,000 by B to A. "While B thus held 
 the certificate he applied to a hank for a loan upon it of 
 $2,000, in effect stating that he wanted it for A. The hank 
 agreed to make the loan if B would procure from A a proper 
 power of attorney to he attached to the certificate. B did not 
 procure the $2,000 loan for A, but for himself, and he pro- 
 cured the power of attorney by representing to A that he, B, 
 ought to have it to secure his loan of $1,000. B then deliv- 
 ered the certificate and power of attorney to the hank and 
 obtained the loan of $2,000. Subsequently the bank, as al- 
 leged pledgee, brought an action to foreclose a claimed lien 
 on the stock for $2,000, making A a party to the action. A 
 defended on the ground that B had no authority to pledge 
 the stock, and that as B did not claim to the bank to be the 
 ovmer of it, the bank obtained no title or interest therein, 
 which would enable it to maintain the action. Who should 
 have judgment, and why ? 
 
 318. 
 
 18. A and B were copartners engaged in a mercantile 
 business under the firm name of A and B. C was surety to 
 the firm for the payment of its purchases. B died, but the 
 business was continued under the said firm name by A and 
 the administrator of B's estate, who contracted debts for 
 purchases to the amount of $5,000, and then became insol- 
 vent. The creditors claim that is liable, as surety, for the 
 amount. He claims otherwise. What do you say? Give 
 your reasons. 
 
 319. 
 
 19. A gave his promissory note, with B, C and D as sure- 
 ties. Thereafter A became insolvent. B paid the note when 
 it became due. Subsequently C became insolvent B now 
 consults you as to his rights, if any, against D under the 
 circumstances. State fully, with your reasons. 
 
 320. 
 
 20. A entered into an agreement in writing with B to sell 
 and convey to B thirty days after the date of the agreement, 
 
Bae Examination's and Coueses of Study. Ill 
 
 a house for tlie sum of $15,000, -which B agreed to pay upon 
 delivery of the deed. B at once, and before the payment of 
 any part of the purchase money or the delivery of the deed to 
 him, took out a policy of fire insurance in the Z. Fire Insur- 
 ance Company upon the house for his own benefit. The next 
 day the house burned. The insurance company refused to 
 pay the loss, claiming that B had no insurable interest. B 
 brings an action upon the policy. Can he recover ? If so, 
 why ? If not, why not ? 
 
 321. 
 
 21. A, who had no property, was indebted to B in the 
 sum of $2,000. B procured an insurance on the life of A, 
 payable, in event of death, to himself, B. The policy pro- 
 vided that it should be null and void in case the insured 
 should " die by his own hand or act voluntary or otherwise." 
 A, the insured, became sick, and accidentally, and with no 
 intent to cause death and being perfectly sane, took an over- 
 dose of medicine prescribed by his physician, from the effects 
 of which he died. The company questions its liability upon 
 the policy. What do you say, and for what reason ? 
 
 322. 
 
 22. A guest at a country inn, having valuable jewels, 
 placed the same in the innkeeper's safe in compliance with a 
 printed notice posted in the guest's room. The safe was 
 opened by burglars without negligence on the part of the 
 innkeeper or the guest and the jewels were stolen. The 
 guest brings an action against the innkeeper for the value 
 of the jewels. Can he recover ? Answer fully, with your 
 reasons. 
 
 323. 
 
 23. The X. & T. Railroad Company received for transpor- 
 tation to Buffalo a carload of valuable horses. After arrival 
 at destination and before the horses could be taken from the 
 custody of the railroad company, a gTcat fire broke out in 
 the city, and without any fault on the part of the railroad 
 company extended to the car containing the horses, and they 
 
112 Bar Examinatiob's and Cotjeses of Study. 
 
 were burned to death. Is the railroad company liable for 
 the value of the horses ? If so, why ? If not, why not ? 
 Answer fully. 
 
 324. 
 
 24. A sold by sample 1,00'0 bushels of wheat to B and a 
 like amount to C to be delivered at A's warehoiise. B paid 
 in full for, the amount of his purchase, but C paid nothing. 
 A measured out the respective amounts of wheat which 
 awaited B's and C's orders and immediately thereafter the 
 warehouse and its contents, including both parcels of wheat, 
 were destroyed by fire. A sues C for the price of the wheat 
 sold to him, and B sues A for the value of the wheat pur- 
 chased by him. What are the rights and liabilities of A, B 
 and C, respectively ? Answer fully, with your reasons. 
 
 325. 
 
 25. A entered into a contract with B to manufacture and 
 deliver to B a boiler and engine which was expressly war- 
 ranted should be of sufficient capacity and power for a mill 
 owned by B. Upon delivery of the boiler and engine B at 
 once saw that they were incapable of doing the work required 
 of them, but without notice of defect to A B set them up 
 and brought suit against A to recover the damages sustained 
 by him because they did not comply with the contract. Was 
 he entitled to recover ? If so, why ? If not, why not ? 
 
Bae Examinations and Coueses op Study. 113 
 
 EXAMINATION PAPER. 
 No. 7. 
 
 AFTERNOON — FOUR HOURS. 
 
 326. 
 
 1. On the trial of an action, the plaintiff called a witn&ss 
 on his behalf, and interrogated him to establish a material 
 fact. The "witness answered opposite to what he told plain- 
 tiff's attorney the fact to be. Thereupon plaintiff called a 
 witness to prove that the particular fact his former witness 
 testified to was otherwise, and objection was made to the 
 competency of his testimony. 
 
 What should the ruling of the court be, and why ? 
 
 327. 
 
 2. You desire to examine on the trial of an action the 
 president and books of account of the defendant corporation. 
 
 How would you proceed? 
 
 328. 
 
 3. A and B entered into an agreement, which was re- 
 duced to writing. In an action between X and B, the agree- 
 ment became relevant to the issue and X offered parol testi- 
 mony contradicting the same, and to show what the real 
 transaction was. Objection was made thereto. 
 
 What should be the ruling of the court, and why? 
 
 329. 
 
 4. A brought an action against X to rescind a contract 
 to purchase shares of stock and to recover the purchase price 
 thereof, on the ground that he had been induced to enter 
 
 8 
 
114 Bar Examinatioosts and Coueses of Study. 
 
 into the same because of false and fraudulent representations 
 in relation thereto, made to him by the defendant and on 
 which he relied. 
 
 On the trial, plaintiff offered testimony of other similar 
 representations made about the same time to other pur- 
 chasers of the stock by the defendant. Objection was made 
 thereto. 
 
 What should be the ruling of the court, and why ? 
 
 330. 
 
 5. On the trial of an action, the defendant called X as a 
 witness. On his cross-examination, plaintiff's attorney asked 
 him the following question : " Is it not a fact that you were 
 convicted of the crime of burglary at the Erie Trial Term in 
 January, 1905 ? " Objection was made thereto. 
 
 What should be the ruling of the court, and why ? 
 
 331. 
 
 6. A and B met by accident and agreed that at a certain 
 hour on the night of the following day they would bur- 
 glarize the residence of C, and arranged the part each should 
 take -therein and separated. For some reason the matter 
 was dropped, and nothing further was done or said about 
 committing the crime. Were they guilty of a crime or not ? 
 If so, what ? If not, why not ? 
 
 332. 
 
 7. Upon the trial of a criminal action for felony the jury 
 found the defendant guilty. He appeared for judgment and 
 waived the appointment of a time for pronouncing the same. 
 The court thereupon, without asking him any further ques- 
 tions, sentenced him to State prison for a lawful period of 
 time. Was the judgment and sentence of the court valid or 
 not ? If so, why so ? If not, why not ? 
 
 333. 
 
 8. On the trial of X under an in^ctment for murder in 
 the first degree, it was established that i the prisoner com- 
 mitted the act while in a state of volun|fiTy intoxication. 
 
Bab Examinations and Coueses of Study. 115 
 
 The prisoner's counsel asked the court to charge the jury- 
 that the defendant's intoxication at the time might be con- 
 sidered by them in determining the intent with which the 
 act was committed, and the grade or degree of his crime. 
 
 The court refused so to charge, and the defendant was con- 
 victed of murder in the first degree. Was the refusal to 
 charge erroneous or otherwise? Give your reasons. 
 
 334. 
 
 9. A agreed to purchase of B two hundred hogs and pay 
 him the market price therefor, if delivered within four weeks, 
 and A had not been previously supplied within that time. 
 B drove his hogs to the place of delivery and offered them 
 to A, who, although the contract was void under the statute 
 of frauds, would have taken and paid for them but for the 
 fact that one C, who had learned of the contract between 
 A and B, induced A to purchase his hogs by falsely and 
 fraudulently representing to A that B had taken his hogs to 
 another market and did not intend to fulfill his contract. 
 This statement was false and known by C to be so, and was 
 intended to and did deprive B of the benefit of liis contract. 
 Upon learning these facts B sued C for fraud and proved 
 damages to the extent of $400. These facts being undenied, 
 for whom should judgment be given ? Give reasons. 
 
 335. 
 
 10. M owned and possessed a right of way over the farm 
 of B, subject to the duty of maintaining gates across the 
 way, at each end thereof. M removed the gates. After- 
 wards, while M was engaged in making necessary repairs 
 to the way, B, claiming that M had lost his right of way and 
 was therefore a trespasser, assaulted and beat M. in an effort 
 to eject him from the farm as such trespasser. An action 
 therefor was brought by M against B. The latter alleged 
 as a defense that by the removal of the gates M had broken 
 the condition upon which his right depended, and that he 
 thereby lost his right to the use of the way, and hence the 
 action of B was justified in removing M as a trespasser 
 
116 Bae Examinations and Coueses of Studt. 
 
 upon his premises. Conceding these facts and that M. sus- 
 tained damage, for whom should judgment be given, and 
 why? 
 
 336. 
 
 11. A purchased a ticket for a passage upon the railroad 
 of the X. Railroad Company, entered one of its cars and 
 before reaching his destination lost his ticket. When he 
 attempted to pass through the gate across the passageway 
 from the station, he was stopped by the gatekeeper of the 
 company and informed that he could not pass until he paid 
 his fare or purchased a ticket. He stated to the gatekeeper 
 that he had purchased a ticket and its loss. When he per- 
 sisted in attempting to pass he was pushed back by the gate- 
 keeper, who then ordered his arrest. He was arrested and 
 taken to the police station and locked up over night. In the 
 morning he was examined and discharged. The company 
 had ordered its gatekeeper not to let passengers pass from 
 the station until they had paid their fare or showed a ticket. 
 A sued the company for false imprisonment. Was it liable ? 
 If not, why not ? Give your reasons. 
 
 337. 
 
 12. A died owing a valuable parcel of real estate. He 
 also left a last will and testament by which he devised it to 
 his executors in trust for the benefit of the X corporation, and 
 expressly declared by his will that no portion of his real 
 estate should go to his heirs-at-law. The devise for the 
 benefit of the corporation proved to be invalid, and his heirs- 
 at-law then brought an action against the executors, who were 
 in possession, to recover the real property of which A died 
 seized. What should be the decision? Give your reasons. 
 
 338. 
 
 13. In an action under the Code to establish the will of 
 D, it appeared on the trial that the testator, instead of sign- 
 ing the will at the end and immediately after the testimo- 
 nium clause, signed it after the attestation clause, where 
 the subscribing witnesses also signed. 
 
Bae Examinations and Coiteses of Study. 117 
 
 Was the will executed by the testator as required by stat- 
 ute ? Give the reasons for your answer. 
 
 339. 
 
 14. D died leaving a last will and testament, whereby he 
 devised to A, his widow, all of his real estate for the term 
 of her natural life. The testator's will then provided that 
 " from and after his widow's death " his real estate should 
 go to his heirs-at-law. At his death the testator left him 
 surviving A, his widow, and C, a daughter, who was his only 
 heir at law. 
 
 What estate did C take under her father's will in the real 
 property left by him ? Was it a vested remainder, the enjoy- 
 ment of which was postponed during the life of the widow, 
 or was it a contingent remainder which was dependent upon 
 C's surviving the testator's widow ? Give your reasons. 
 
 340. 
 
 15. A, being the owner of a farm of 100 acres, sold it to 
 B for $5,000 and gave him a deed thereof. Upon the deliv- 
 ery of the deed B paid $2,000 in cash and gave his promis- 
 sory note for the remaining $3,000, payable to the order of A. 
 Thereupon B entered into and still holds the possession of 
 the farm. Subsequently, and before the note became due, B 
 became insolvent and the note was consequently uncollectible. 
 A, thinking he ought in some way be able to hold the farm 
 for the payment of the unpaid purchase price, consults you. 
 Has he any remedy except upon the note, and if so, what? 
 
 341. 
 
 16. A owned several vacant lots upon which he intended 
 in the following spring to commence the erection of a busi- 
 ness block. In the previous fall he gave B a license to oc- 
 cupy them for storing stone until spring, when the stone 
 were to be removed by B, who paid nMhing for the use 
 of the lots. In the spring A ordered B to remove the stone, 
 which he neglected to do. Thereupon A commenced a suit 
 in equity against B to compel their removal. B defended 
 
118 Bab Ex-vMiNATiocsrs and Coueses of Study. 
 
 on the ground that the suit could not be maintained because 
 A had an adequate remedy at law, and this was pleaded as 
 a defense. After issue was thus joined you were consulted 
 by A as to the validity of that defense. What would be your 
 advice? Give reasons. 
 
 342. 
 
 1/7. A was the owner of a vacant city lot. B had $5,000 
 upon which he was receiving only three per cent interest. 
 B proposed to A to use his money in building a block of 
 buildings upon A's lot, to the end that A would receive 
 something for the use of the lot and that B would receive 
 more than three per cent for the use of his money. A as- 
 sented to B's proposition and agreed that if B built the block 
 he should have a right to sell it, and should then pay A the 
 value of the lot. This agreement was not in writing, but B 
 relied upon and in pursuance of it erected a block upon A's 
 lot. After the block was completed A at once denied that 
 B had any right to or interest in the property, whereupon 
 E brought a suit in equity to establish and enforce his rights, 
 if he had any. 
 
 Could B maintain the suit and to what relief, if any, was 
 he entitled ? 
 
 343. 
 
 18. The X. Company, a stock corporation, was duly 
 formed under the laws of the State of New York. After the 
 certificate of incorporation had been filed in accordance with 
 law the incorporators of the company determined that it 
 failed to express the true object and purpose of the corpora- 
 tion, and that the same should be changed so as to truly set 
 forth such object and purpose. How did they accomplish the 
 result desired ? Answer fully. 
 
 344. 
 
 19. A is the owner of 51 per cent of the capital stock of 
 the X. & Y. E.y. Co. The stockholders of the compajiy are 
 to decide whether the company shall purchase a numbei 
 of locomotives which are necessary for the business of the 
 company, and a meeting of stockholders is held for the pur- 
 
Bar Examinations and Coueses of Study. 119 
 
 pose of voting upon, the purchase. A moves that ten loco- 
 motives be purchased from himself, he being a locomotive 
 manufacturer, for $125,000, the locomotives having cost 
 him $100,000, which fact he discloses to the other stock- 
 holders. His motion is carried by his vote upon 51 per 
 cent of the shares of the capital stock, against the vote in 
 opposition of stockholders owning 49 per cent of the capital 
 stock. A minority stockholder brings suit to restrain the 
 purchase upon the facts stated, no fraud being alleged. Will 
 the action lie? If so, why? If not, why not? Answer 
 fully. 
 
 345. 
 
 20. The "A. Company," a domestic corporation, made 
 its promissory note for $10,000 payable three months after 
 date to the order of X, and agreed to pay interest thereon 
 at the rate of 10 per cent. The note was duly authorized 
 by the directors, execufed by the proper officers and the pro- 
 ceeds thereof were applied to the corporate uses of the cor- 
 poration. The note was not paid at maturity, and X brought 
 an action thereon against the corporation. Upon the facts 
 stated had the company a defense to the note ? If so, what 
 defense ? If no defense, why ? 
 
 346. 
 
 21. The guardian of a minor suffered waste of the inher- 
 itance of his ward to the amount of $5,000. You are asked 
 what relief or remedy, if any, may be enforced on behalf of 
 the ward. "What do you say ? 
 
 347. 
 
 22. A and B own a parcel of real estate as tenants in 
 common. A had divorced his wife for adultery and B's wife 
 had divorced him for the same cause. They are about to 
 transfer the title to the property to your client ajid offer a 
 deed of the same not signed by either of the former wives. 
 Questions arises as to the sufficiency of the deed. What do 
 you say, and why ? 
 
120 Bak Examinations and Coueses op Study. 
 
 348. 
 
 2'3. X and Y were duly married, X, the husband, absented, 
 himself for six successive years without being known to Y, 
 the wife, to be living during that time. Y thereupon mar- 
 ried Z. X returns and claims the right to resume marital 
 relations with Y, to which Z objects. What are the rights 
 and obligations of the respective parties? Answer fully, 
 with your reasons. 
 
 349. 
 
 24. A was killed in a railroad accident and his administra- 
 tor commenced an action against the railroad company to re- 
 cover $2^0,000 damages itherefor. After the commence- 
 ment of the action the Legislature passed an act limiting 
 to $10,000 the amount recoverable in an action to recover 
 damages for injuries resulting in death. The jury rendered 
 a verdict in favor of the plaintiff for $15,000, upon which 
 judgment was entered for that amount. A question arises 
 as to the validity of the judgment. Is it valid ? If so, why ? 
 If not, why not? 
 
 350. 
 
 25. A was arrested on a warrant charging him with mur- 
 der, and, on being taken before the magistrate issuing the 
 warrant, demanded an examination. On such examination, 
 A appearing with counsel, B was sworn as a witness on be- 
 half of the people, and his testimony reduced to writing by 
 the magistrate. Opportunity was given to A and his coun- 
 sel to cross-examine the witness, which was declined. The 
 evidence given by B was read over to and signed by him 
 and properly certified by the magistrate. A was held for 
 the grand jury and subsequently indicted on the charge. 
 On the trial of the indictment, B having died, the district 
 attorney offered in evidence the deposition of B taken before 
 the magistrate. The prisoner's counsel objected as in viola- 
 tion of his client's constitutional rights. Was the objec- 
 tion sustained or not? State your reasons. What constitu- 
 tional right is involved? 
 
Bae Examinations and Cotjeses of Study. 121 
 
 EXAMINATION PAPER. 
 No. 8. 
 
 FORENOON — FOUR HOURS. 
 
 351. 
 
 1. Draw an affidavit of personal service of a summons in 
 the Supreme Court upon an infant defendant under the 
 age of foxirteen years. 
 
 352. 
 
 2. A was the sole administrator of B, who died leaving 
 him surviving a wife and next-of-kin. B's death was caused 
 by the Avrongful act of C. Subsequently C died, and D was 
 duly appointed as his executor. Thereupon A, as adminis- 
 trator of B, brought an action against D, as executor of the 
 estate of C, to recover damages for such wrongful act of his 
 testator. These facts were fully alleged in the complaint, 
 and the defendant duly demurred thereto. What should be 
 the decision, and why ? 
 
 353. 
 
 3. A sued B, alleging an account stated. B interposed 
 a general denial, and offered to prove that the dealings con- 
 stituting the account mentioned were between B and C, and 
 that the indebtedness of B thereon was to C, and not to A. 
 A objected to that evidence upon the sole ground that it 
 was not admissible under the pleadings. What should be 
 the ruling, and why ? 
 
 354. 
 
 4. A owned a farm upon which he gave B a mortgage to 
 secure a usurious loan of $5,000. A devised the farm to O, 
 and then died. After A's death C brought a suit in equity 
 
132 Eae Examinations and Coueses of Study. 
 
 against B praying for a judgment that said mortgage be 
 declared void for usury, and be set aside and canceled. B de- 
 murred to the complaint on the ground that it did not state 
 facts suiBcient to constitute a cause of action, in that it 
 failed to allege that C had paid, or offered to pay, the sum 
 actually loaned to A. What should the decision be? 
 
 355. 
 
 5. A, an infant without having a guardian ad litem ap- 
 pointed, commenced an action against the E. Co. Issue was 
 joined and the case came on for trial. At the close of the 
 evidence the defendant moved for a non-suit on the ground 
 that the plaintiff was prosecuting the action without the 
 appointment of a guardian. An application was then made 
 by the plaintiff for the appointment of a guardian ad litem 
 nunc pro tunc. Had the court jurisdiction to gi'ant the plain- 
 tiff's application, or was it required to grant the defendant's 
 motion for a non-suit ? Give the reasons for your answer. 
 
 356. 
 
 6. In an action in which you are the defendant's attorney 
 it is necessary to make and serve an affidavit of merits, to be 
 verified by the defendant. Draw such an affidavit stating 
 fully the facts required to be alleged therein. 
 
 357. 
 
 7. A owned a farm which B agreed to purchase and for 
 which he agreed to pay A $5,000. The contract between 
 them was in writing, but contained no agreement warranting 
 the title. The farm was subject to a mortgage for $4,000, 
 which had been recorded, but its existence was unknovsm to 
 B as matter of fact when the contract was made. Subse- 
 quently B learned of it and that the farm had been sold on 
 its foreclosure. He then refused to perform the contract. 
 A, however, insisted that, as the contract contained no ex- 
 press warranty of the title, B was bound to pay the agreed 
 consideration, and brought an action against B therefor. In 
 the absence of an express warranty could A recover ? Give 
 the reasons for your answer. 
 
Bah Examinations and Courses of Stttbt. ilSS 
 
 358. 
 
 8. A gave B a mortgage upon certain real estate nominally 
 to secure the payment of $20,000 on demand. In fact, it 
 was to secure advances thereafter to be made by B, under a 
 contract by A to erect three houses upon the mortgaged 
 premises, the advances to be made as the buildings progressed, 
 the houses to be completed v^ithin one year. If the work 
 proceeded according to the contract, no demand was to be 
 made for the mortgage debt until ninety days after A was 
 entitled to his last advance. B advanced $10,000 under the 
 contract when A abandoned it, leaving the houses unfinished, 
 and made a general assignment to O for the benefit of cred- 
 itors. B thereupon commenced an action to foreclose his 
 mortgage without demand and without waiting for the ex- 
 piration of the time set for the completion of fhe buildings. 
 C, as such assignee, defended upon the ground that a demand 
 before action was necessary, and that the action was prema- 
 turely brought. Was the judgment for B, or was it against 
 him, and why? 
 
 359. 
 
 9. H was the owner in fee of certain city lots situated 
 upon D street, which was closed in 1900, in pursuance of a 
 statute passed in 1899. In 190i2 H sold and deeded the lots 
 to B by a deed containing the usual covenants of warranty, 
 and which bounded the lota in front by the side of D street. 
 The award of damages to the lots caused by closing the street 
 was made in 1904. H claimed the amount of the award, and 
 it was also claimed by B. For whom was judgment given, 
 and why ? 
 
 360. 
 
 10. The X Bank held A's not© for $500; A was away at 
 the time of its maturity, having made no provision for its 
 payment. B, who took a friendly interest in the affairs of A, 
 to prevent A's credit being impaired, without the request of 
 A, paid the note when due, and thereupon the bank can- 
 celed it. B honestly expected, when he made the payment, 
 because of his friendly relations with A, that A would reim- 
 burse him therefor. Upon A's return B informed him of his 
 payment of the note and his reasons therefor, for which A 
 
124 Bak Examiitations and Courses of Study. 
 
 expressed his gratitude. A few weeks later, A having said 
 nothing about reimbursement, B requested it, which A re- 
 fused, whereupon B brings an action to recover from A the 
 amount so paid for his benefit. A defends. Who wins, and 
 why? 
 
 361. 
 
 11. The plaintiff was employed by the defendant " at the 
 rate of $1,000 per year," nothing more being said. At the 
 end of the first month the plaintiff left defendant's employ 
 without ca^ise and demanded pay for the month's service 
 rendered, which defendant refused. Thereupon plaintiff 
 sued defendant for the month's wages under the contract. 
 The defendant in his answer set up the contract, alleged the 
 plaintiff's breach thereof and his own readiness to perform, 
 and demanded a dismissal of the complaint. The above facts 
 being established upon the trial, judgment for whom, and 
 why? 
 
 362. 
 
 12. A and B were rivals in the mercantile business. A 
 had in merchandise and accounts $100,000, while B had 
 $50,0'00. They signed a limited partnership agreement un- 
 der the statute, which was filed, recorded and published 
 according to the facts, in which A was made the general 
 partner and B the special, or limited, partner, with a capital 
 of $150,000, of which A contributed his said merchandise 
 and accounts at $100,000, and B his said merchandise and 
 accounts at $50,000. The new firm thereafter failed, with 
 liabilities amounting to $150,000. What is the liability of A 
 and B, respectively, for the debts of the concern ? State your 
 reasons. 
 
 363. 
 
 13. A, B and C were copartners. X commenced an action 
 against the firm, on a firm obligation, by the service of a 
 summons and complaint on A only. A defaulted and X 
 thereupon entered judgment against A, B and C and issued 
 execution to the sheriff of the county where the firm did 
 business and where A, B and C lived. The sheriff has levied 
 on the entire stock of the firm which is concededly insuffi- 
 
Bab ExAMiNATioiirs and Ooueses of Study. 125 
 
 cient to satisfy the judgment, and has advertised it and C's 
 private dwelling-house for sale under the execution. C con- 
 sults you as to his rights, if any, in the premises. What do 
 you say, and "why ? 
 
 364. 
 
 14. A made his promissory note payable to the order of X, 
 an infant. X, for value, and before maturity indorsed the 
 same over to B. The note was protested for nonpayment and 
 due notice given, etc. B sued A thereon, who defends on 
 the ground that X was an infant, and that by reason thereof 
 his indorsement did not pass title or the property in the 
 note to B. B demurs to the answer. Judgment for whom, 
 and why ? 
 
 365. 
 
 15. A made his note payable to the order of B, who duly 
 indorsed it over to C, who duly indorsed it over to D, who 
 indorsed it over to E, who duly indorsed it back to O, all in 
 due course. The note is dishonored, duly protested, etc., 
 notice being given to all indorsers. C sues A, B, D and E 
 on the note. The defendants all consult you as to their 
 respective liabilities. What do you advise, and why? 
 
 366. 
 
 16. A was a general agent for B in buying and selling 
 horses, who was instructed by B never to warrant any horse 
 he sold for him, but that the buyer must purchase at his 
 own risk. Notwithstanding and contrary to such instruc- 
 tions, in selling a span of horses to C A warranted them kind 
 and sound in every particular. O was ignorant of B's in- 
 structions to A. The horses proved to be both unkind and 
 unsound, to the great damage of C, who sued B for such dam- 
 age, relying upon the said warranty. Judgment for whom, 
 and why? 
 
 367. 
 
 17. A commercial agent, X, sold by sample to B 1,000 
 bushels of malt and forwarded the order to his house to be 
 filled. The house promptly accepted the order and delivered 
 the malt, to be paid for at thirty days. The house had had 
 
126 Bae Examinations and Courses of Study. 
 
 no previous dealing with B. Upon the expiration of the time 
 X called upon B and collected from him payment for the 
 malt, stating that, although an agent simply, he was author- 
 ized to collect, when, in fact, he was especially instructed by 
 liis house not to collect. The agent absconded with the 
 money. Upon whom does the loss fall ? State your reasons. 
 
 368. 
 
 18. A was surety for B, the maker of a promissory note. 
 After its maturity the holder of the not© said to B: "I'll 
 not bother you on that note, nor sue you thereon for ninety 
 days, in view of your present poverty." The holder knew 
 at the time that A was surety on the note, yet neither he 
 nor B informed him of the transaction, and he knew nothing 
 of it until after the ninety days agreed upon had expired. 
 By reason of the above transaction A claims to be released 
 as surety. What do you say, and why ? 
 
 369. 
 
 19. A was surety to C for B. C had received collateral 
 security from B for the same debt, which fact was unknown 
 to A. When the debt became due A paid it and thereupon C 
 returned the collateral to B, who disposed of it and then 
 became insolvent. A now leams of the above facts and 
 asks you if he has any remedy in the premises. What do 
 you say? 
 
 370. 
 
 20. A policy of fire insurance provided that the entire 
 policy should be void if the insured dwelling-house, whether 
 intended for occupancy by owner or tenant, be or become 
 vacant or unoccupied and so remain for ten days. The house 
 in question was a dwelling-house on a farm. It was occu- 
 pied as a summer residence by the owner, who, when he 
 moved into tbe city in the fall, left all his furniture in it 
 and put the same in charge of his farmer, who resided in an- 
 other house on the farm, as caretaker. The farmer had a 
 key to the house and went into and inspected the same regu- 
 
Bab Examinations and Ooueses op Study. 127 
 
 larly and at least once a week. The owner visited it regu- 
 larly every two weeks and made a thorough inspection 
 thereof, and on those occasions lunched therein. Wo person 
 slept in it. After the premises had been in the above con- 
 dition for about two months it was destroyed by fire. The 
 company now refuses to pay the loss, claiming a breach of 
 the above condition. Is the company liable ? If so, why 
 so ; if not, why not ? 
 
 371. 
 
 21. A policy of life insurance contained a clause that if 
 the proposals, answers and declarations made by the insured, 
 and on which the policy was issued, should be found in any 
 respect false or fraudulent, then the policy should be void. 
 In his application for the policy the insured warranted his 
 age to be thirty years, when, as matter of fact, he knew he 
 was thirty-five years old. The agent who took the policy 
 on behalf of the company knew that the insured was thirty- 
 five years of age and the falsity of the warranty. The in- 
 sured having died, the company contests the policy. On the 
 above facts judgment for whom, and why ? 
 
 372. 
 
 22. X consigned to A, an auctioneer in the city of New 
 York, for sale on his account certain merchandise, his prop- 
 erty, of the value of $10,000. While in the auctioneer's pos- 
 session the property was levied upon by the sheriff of IsTew 
 York county under an execution in an action in which one Z 
 was the sole defendant, and was advertised and sold by the 
 sheriff under a claim that the merchandise was the property 
 of Z, the judgment debtor, and not the property of X, of all 
 of which X had no notice, nor did A take any steps to pre- 
 vent the sale. X, when he learned what had taken place, 
 demanded of A, the auctioneer, the return of the property or 
 its value, both of which demands the auctioneer refused to 
 comply with, justifying his refusal upon the above facts. X 
 now sues the auctioneer for the value of the consignment. 
 The above facts appearing, judgment for whom, and why ? 
 
128 Bae Examinations and Coueses of Study. 
 
 373. 
 
 23. A delivered to B a quantity of clotli and other neces- 
 sary material from -which B agreed to make and deliver to 
 A, 10,000 pairs of trousers, at $1.50 per pair. When B 
 made up 5,000 pairs of the trousers his factory, accidently 
 and without his fault or negligence, took fire, in which fire 
 all the made-up trousers and the remaining stock of goods 
 were totally destroyed. A thereupon sued B for his damage 
 caused by B's inability to perform his contract, and B coun- 
 terclaimed for $7,500, the value of the labor he had expended 
 in completing the 5,000 pairs of trousers not delivered. 
 Judgment for whom, and why ? 
 
 374. 
 
 24. On May 1, 1905, A and B entered into a valid con- 
 tract in and by which A agreed to sell and deliver to B on 
 June 1, 1905, 1,000 barrels of flour, which B agreed to ac- 
 cept and to pay A five dollars per barrel on delivery. On 
 May 15, 1905, B notified A of his intention not to accept 
 delivery of the flour, nor to pay for the same on June flrst. 
 Thereupon and without tendering the flour A sent the same 
 to public auction and after due advertisement and notice 
 to B sold the same on May 19 to the highes.t bidder for 
 $4 a barrel. On May 20 A began suit against B to re- 
 cover the deficiency on the sale. Can A maintain his action ? 
 Give your reasons. 
 
 375. 
 
 25. A wrote to B saying, " Send me, by American Ex- 
 press, at once 5,000 X brand cigars on a credit of six 
 months." B immediately expressed to A by American Ex- 
 press, as requested, 4,000 X brand cigars and billed them on 
 a credit of five months, stating that the remaining 1,000 
 cigars would follow in a couple of weeks, or, as soon as he 
 could manufacture the same. The 4,000 cigars shipped were 
 lost in tiansit, and B^ sues A for their value, claiming that 
 he delivered them to A's agent, the express company, at hia 
 request, and that as between them A must stand the loss. 
 A defends. Judgment for whom, and why ? 
 
Bae Examinations and Couksbs of Study. 129: 
 
 EXAMINATION PAPER. 
 No. 8. 
 
 AFTERNOON — FOUR HOURS. 
 
 376. 
 
 1. A sued B to recover damages for an assault with a 
 loaded gun. On the trial, the court having already charged 
 the jury that the burden "was upon the plaintiff to prove his 
 case by a preponderance of evidence, B requested the court 
 to further charge that he was presumed to be innocent until 
 he was proved to be guilty. This the court declined to charge 
 and B duly excepted. Was the exception well taken ? Give 
 the reasons for your answer. 
 
 377. 
 
 2. A gave to B his promissory note for $2,000, in which it 
 was stated to be for money loaned. When it became due B 
 sued A thereon, who defended on the ground of want of 
 consideration. On the trial B offered to prove that the note 
 was given for the board, care and nursing of A furnished 
 to and performed for him by B. This evidence was objected 
 to by A on the ground that it contradicted the note, which 
 was in writing, and hence was inadmissible. What should 
 the ruling be ? 
 
 378. 
 
 3. A, as administrator of B, brought an action against 
 the X. Co. to recover for its alleged negligence causing the 
 death of B. No one witnessed the occurrence, which re- 
 sulted in B's injury and subsequent death. About thirty 
 minutes after the accident the decedent told a witness how 
 
 it occurred. On the trial the plaintiff called this witness and 
 9 
 
130 Bae Examinations and Coueses of Study, 
 
 offered to prove by him the declarations of the decedent as 
 to how the injury happened. The evidence was objected to 
 by the defendant upon the ground that the declarations of 
 the decedent were incompetent, were no part of the res gest<x, 
 and that such declarations were subsequent to the injury 
 and at a different place. What should the ruling be ? 
 
 379. 
 
 4. A, an heir-at-law of D, brought an action against B, 
 the grantee of D, deceased, to set aside a conveyance of 
 land made by the decedent to B on the ground that it was 
 obtained by undue influence. On the trial E, the decedent's 
 widow, who, as his wife, joined in the conveyance by D to B, 
 was called as a witness for A and interrogated as to a per- 
 sonal transaction between herself and her deceased husband 
 relating to such property and the transfer thereof. This 
 evidence was objected to as inadmissible, and that the wit- 
 ness was incompetent under section 829 of the Code, on the 
 ground that she was interested in the event of the action. 
 These objections were overruled, and the defendant ex- 
 cepted. Was the exception well taken ? 
 
 380. 
 
 5. A gave B his promissory note for $1,000' loaned to 
 him by B. It was payable, with interest, thirty days after 
 date. Ten years afterwards B died and C was appointed 
 as his administrator. Thereupon C, as such administrator, 
 sued A upon the note, and A pleaded the statute of limita- 
 tions as a defense. On the trial the note was produced in 
 evidence, with indorsements of part payments thereon, which 
 were in the handwriting of B. They were all dated more 
 than seven years after the note was given. No other proof 
 was offered. Eor whom should the court direct judgment, 
 and why ? 
 
 381. 
 
 6. A was duly indicted for grand larceny and brought to 
 trial thereon. The trial commenced ,on Monday, continued 
 through the day when the court and the trial were adjourned 
 
Bak Examinations and Ooueses of Study. 131 
 
 ■until Tuesday. On Tuesday the court did not convene, be- 
 cause of the inability of the judge to reach the court, owing 
 to the prevalence of a blizzard, but it reconvened on Wednes- 
 day and proceeded with the trial without objection from the 
 defendant. The trial resulted in a verdict convicting A of 
 the crime charged. When sentence was moved A moved for 
 a new trial and arrest of judgment on the ground that the 
 court was not in session when the verdict was rendered ; that 
 not having reconvened on Tuesday it was dissolved and its 
 subsequent proceedings were without jurisdiction. What 
 was the decision, and why ? 
 
 382. 
 
 7. A was charged in an indictment with having com- 
 mitted a specific crime constituting a felony. On the trial 
 of the indictment the proof disclosed that A was absent at 
 the time the crime was committed, although he advised and 
 procured its commission. A objected to the submission of 
 the case to the jury on the ground that the j)roof showed 
 that he was absent at the time of the alleged commission 
 of the crime, and hence there was no sufficient allegation 
 in the indictment of the facts constituting the crime proved. 
 Was the indictment sufficient ? Give the reasons for your 
 answer. 
 
 383. 
 
 8. P was indicted for the murder of B. On the trial of P 
 it was proved that a dead body, was found, alleged to be that 
 of B. There was no direct proof of that fact, but there was 
 evidence of circumstances which were sufficient to justify 
 a jury in finding, beyond a reasonable doubt, that the body 
 found was that of B. Could that fact be established by 
 the circumstantial proof under section 181 of the Penal 
 Code, which reads : " No person can be convicted of mur- 
 der or manslaughter unless the death of the person alleged 
 to have been killed, and the fact of killing by the defendant 
 as . alleged, are each established as independent facts, the 
 former by direct proof, and the latter beyond a reasonable 
 doubt." Give vour reasons. 
 
132 Bae Examinations and Coueses of Study. 
 
 384. 
 
 9. While A was an ordinary passenger on the X. Rail- 
 road the train suddenly left the track and he was badly in- 
 jured. On the trial, in an action brought for damages, A 
 proved the foregoing facts and rested. The X. Company 
 moved for a nonsuit on the ground that plaintiff had shown 
 no negligence against the company. How was the motion 
 decided ? State your reasons. 
 
 385. 
 
 10. A and B were walking together and they casually 
 met C, a practicing physician, to whom B bowed. A there- 
 upon said to B : " I do not recognize C now ; he is a liar 
 and dishonest." ISTothing more was said. B reported the 
 conversation to C, who sued A for slander. On the trial C 
 proved the above facts and rested. A thereupon moved for 
 judgment Judgment for whom and why? 
 
 386. 
 
 11. A and B owned adjoining vacant lots on a side hill 
 in the city of X. The lot owned by A was above that of B, 
 and the surface water, which came in the time of rain, flowed 
 naturally from A's lot down to and over and across B's lot 
 which was below. B built upon his lot a house, which caught 
 and dammed the water which theretofore flowed naturally 
 down the hill and threw it back upon A's lot to his damage. 
 A sues B therefor. Can he recover ? Give your reasons. 
 
 387. 
 
 12. A had two children, B and C, and thereafter duly 
 adopted as a child, D, a minor. Subsequently the father, A, 
 made his will, leaving all his property to " the heirs of A, 
 share and share alike." The father died and his said will 
 was duly probated. B, C and D consult you as to their re- 
 spective rights and interests under the will. What do you 
 advise, and why ? 
 
 388. 
 
 13. A, by his will, devised and bequeathed a house and 
 lot and $10,000 in cash to his son, B, and then gave all his 
 
Bae Examinations and Coueses of Studt. 133 
 
 residuary estate, real and personal, to C. The legacy and 
 bequest to B lapsed by reason of his death occurring in the 
 lifetime of A. After A's death and the probate of his said 
 "will C claimed the house and lot and the $10,000 as residu- 
 ary legatee, A's executors also make claim to the $10,000 
 in the interest of the next-of-kin of the testator. D, the 
 only surviving child of A, for whom no provision was made 
 in the will, claims the house and lot by descent. ^Vho is 
 entitled to the house and lot and the $10',000 ? Give your 
 reasons. 
 
 389. 
 
 14. A, who was but twenty years of age, made his last 
 will and testament whereby he bequeathed all of his per- 
 sonal property, amounting to $20,000, to B, one of his 
 brothers, and devised his real estate, of the same value, to his 
 other brother, C. A died without lawful descendants, leav- 
 ing him surviving his widow, D, and his said two brothers. 
 Both his father and mother are dead. What do you say as 
 to the validity of the provisions of the will, and if the same 
 is probated, how will the property be distributed and de- 
 scend ? 
 
 390. 
 
 15. A held a past-due mortgage on the farm of B, which 
 B was unable to pay. B requested C, his wife, to furnish the 
 money from her separate estate and take an assignment of 
 the mortgage to herself, to which she consented, and gave 
 the money therefor to her husband. B, the husband, instead 
 of procuring an assignment, obtained from A a satisfaction 
 of the mortgage, which he duly recorded, all without his 
 wife's knowledge or consent. The wife, discovering the situ- 
 ation, consults you as to her rights. What do you advise, and 
 what equitable principle is involved ? 
 
 391. 
 
 16. A died leaving an estate of $50,000, consisting en- 
 tirely of cash. By his last will and testament he directed that 
 $10,000 thereof should be expended by his executors in 
 the purchase of a farm for his son, B, to whom title in fee 
 
134 Bae Examinations and Couesbs of Study. 
 
 should be given. Before such purchase could be made by the 
 executors B died intestate, leaving a widow and one child 
 him surviving. How shall the $10,000 be distributed, and 
 what equitable principle is involved ? 
 
 392. 
 
 17. There was a past-due mortgage on the farm of A, held 
 by B, duly recorded. A paid to B the amount of the mort- 
 gage, but instead of a satisfaction and discharge he obtained 
 a written assignment of the mortgage from B, the name of 
 the assignee being left blank, but did not record it. Subse- 
 quently A sold the farm to C subject to the mortgage, it 
 being expressed in the deed that C assumed and agreed to 
 pay said mortgage. One month after title passed to C A 
 filled up the blank assignment by inserting the name of D 
 as assignee, and sold and delivered it to D. D demanded pay- 
 ment of the mortgage, which C refused, he having first 
 learned the facts after he took title, and I> commenced fore- 
 closure. C defended, claiming payment and satisfaction of 
 the mortgage, and asked to have the same discharged of rec- 
 ord. Judgment for whom, and what equitable principle is 
 involved ? 
 
 393. 
 
 18. The X corporation was capitalized for $10,000, con- 
 sisting of 2,000 shares of stock of the par value of five dol- 
 lars a share. At the annual meeting of the stockholders, 
 duly called for the purpose of electing directors, there were 
 three tickets in the field. The A ticket received 250 votes, 
 the B ticket 400 votes and the C ticket 200 votes. The in- 
 spectors of election certified the B ticket as elected, but the 
 old board of directors refused to vacate or surrender their 
 offices, claiming to hold over as directors, because a majority 
 of the stock not having voted at the annual election, there 
 was no valid election of their successors. What do you say ? 
 Gfive your reasons. 
 
 394. 
 
 19. A was a stockholder and director of the X. Stock 
 Company. He was also a lawyer and was retained by the 
 
Bae Examinations and Coueses of Study. 135 
 
 board of directors to defend the corporation in several liti- 
 gations pending against it, which he did, the reasonable 
 ■worth and value of his services being $1,000. There was no 
 express resolution of the board passed containing an agree- 
 ment to employ and compensate A for his services as at- 
 torney, nor was he entitled by the by-laws of the company to 
 any salary for official services. Question arises whether, 
 upon the above facts, A has a valid claim against the corpora- 
 tion. What do you say, and why ? 
 
 395. 
 
 20. The board of directors of the Xi fcorporation consisted 
 of five persons. At a regular meeting of the board, at which 
 but three of the directors "Were present, by a vote of two 
 directors in the affirmative and one in the negative, the 
 president was directed to execute and deliver the promissory 
 note of the corporation for a certain specified corporate piir- 
 pose. Thereafter the dissenting director and the two absent 
 directors signed a paper forbidding the issuing of the note, 
 all of which is brought to the notice of your client, who is 
 about to pay value for the note. He asks your advice as to 
 whether the note is good or not under the circumstances dis- 
 closed. What would be your advice, and why ? 
 
 396. 
 
 21. The income of an estate is devised to A until the birth 
 of issue, upon the happening of which event^ the income is 
 to be divided between himself and the child. He has a child 
 begotten and bom out of wedlock. He thereafter marries 
 the mother of the child, who seeks on its behalf to compel a 
 division of the income as provided. What do you say as to 
 the child's rights in the premises ? 
 
 397. 
 
 22. A and B were husband and wife. They lived separate 
 and apart by mutual agreement, the husband having the care 
 and custody of X, an unmarried minor child, the sole issue 
 of the marriage. The husband in and by his last will and tes- 
 
136 Bar Examinations and Coueses of Stttdy. 
 
 tament, which was duly admitted to probate and recorded, 
 appointed Y to be the general guardian of the person of tiie 
 infant until it arrived at the age of twenty-one years. The 
 widow consults you as to the validity of the appointment of 
 the guardian. What do you say, and why? 
 
 398. 
 
 23. A sued B in contract to recover the price and value of 
 certain goods, wares and merchandise sold and delivered to 
 him by A. The complaint contained allegations of fraudu- 
 lent misrepresentations on the part of the defendant as to his 
 being of full age, and as to his responsibility, made to induce 
 credit, that plaintiff sold on a credit and in reliance on such 
 representations, as aforesaid, all of which were false. The 
 defense was infancy. All of the above facts having been 
 established on the trial of the action, both sides moved for 
 judgment. Judgment for whom, and why ? 
 
 399. 
 
 24. State the qualifications for voters for officers elective 
 by the people. 
 
 400. 
 
 25. A was indicted and tried for robbery in the first de- 
 gree. The jury acquitted him. Thereupon the district at- 
 torney, upon affidavits absolutely establishing misconduct 
 and corruption on the part of the jury, moved to set aside 
 the verdict and for a new trial. What should be the decision 
 of the court on the motion, and for what reason ? 
 
Bab Examinations and Coueses of Study. 137 
 
 EXAMINATION PAPER. 
 Xo. 9. 
 
 FORENOON — FOUR HOURS. 
 
 401 
 
 1. A did work and furnished materials to B to the full 
 amount for which the City Court of the city of New York, 
 or a Cotinty Court, can render judgment, which is due and 
 wholly unpaid, and A wishes you to bring action in such 
 one of those courts as you prefer" to recover the full purchase 
 price. Draw a complaint, without verification, in the 
 action. 
 
 402 
 
 2. A sued B and in his complaint set out a cause of action 
 in tort, viz.: the sale of a horse, the making of false and 
 fraudulent representations on the sale, and the reliance of 
 the plaintiff thereon and resulting damages. B's answer 
 admitted the sale of the horse and denied all other allega- 
 tions of the complaint, and then set up a counterclaim for 
 balance of the purchase price of the horse, unpaid. Ques- 
 tion arises as to defendant's right to plead, in the action, 
 the counterclaim above set forth. What do you say and 
 why? 
 
 403 
 
 3. B, a non-resident, was indebted to A, of the city of 
 Syracuse, in the sum of $2,000 past due. There were six 
 carriages on the cars of the 'N. Y. C. & H. K. R. at Syracuse 
 belonging to B, which had been consigned to a dealer by B 
 to be sold on commission. A commences suit to recover his 
 claim against B, attaching only three of the carriages, the 
 other three being on another car in a distant part of the 
 
138 Ear Examinations and Cotteses of Study. 
 
 freight yard, and so escaped tlie sheriff and his process. A 
 served the summons on B by puhlication. B appeared and 
 defended the action, and on the trial A was awarded judg- 
 ment for the amount claimed, upon which he issued execu- 
 tion, and the sheriff levied upon and sold thereon all six of 
 the carriages, leaving the execution partly unsatisfied. B 
 having forbidden the sale of the three carriages not attached, 
 now sues the sheriff lor converting them. Judgment for 
 whom, and why? 
 
 404 
 
 4. A, a lad of twenty years of age, was run down and 
 severely injured by an automobile, which B was negligently 
 driving. A comes to you and wishes you to bring an action 
 in the Supreme Court against B to recover damages for his 
 injuries. State fully and particularly what, if any, pro- 
 ceedings are necessary for you to take before issuing 
 summons. 
 
 405 
 
 5. You were prosecuting an action as attorney for the 
 plaintiff against B, the defendant. On the trial the case 
 was submitted to the jury which, after a short deliberation, 
 agreed upon a verdict, returned into court and duly reported 
 its verdict in favor of your client against B in the sum of 
 $5,000, which was received by the court and at once re- 
 corded by the clerk. On hearing the verdict, B, who was 
 afflicted with heart trouble, collapsed, and within five min- 
 utes after the recording of the verdict expired. Question 
 now arises how, if at all, and against what name, person or 
 persons, you can enter a judgment. What do you say? 
 State the ruleu 
 
 406 
 
 6. A, a resident of the State of Pennsylvania, was duly 
 subpoenaed and in attendance as a witness on the trial of an 
 action pending between E and F, then on trial at a trial 
 term of the Supreme Court being held in the County of 
 Broome, IST. Y. While so in attendance A was served with a 
 summons and complaint for the commencement of a civil 
 action against him by G. Is such service valid ? If not, why 
 and what could A do to avoid it ? 
 
Bab Examinatiohs and Coueses of Study. 139 
 
 407 
 
 7. A and B were husband and wife. They had a child, 
 issue of the marriage, which died. Subsequent to the death 
 of the child the wife became seized in fee of real estate, and 
 then died intestate, owning the real estate, leaving no de- 
 scendants, father or mother, but leaviiig a brother and two 
 children of a deceased sister, and her husband, her surviv- 
 ing. What becomes of the real estate ? 
 
 408 
 
 8. A was the owner of a farm of 200 acres through which 
 ran a public highway, east and west, included in the 200 
 acres, which highway divided the farm in two equal parts. 
 A, by will, devised to his son B, "All of his farm lying 
 south of the highway," and to his son C, "All of his farm 
 lying north of the highway." A then made his son D his 
 residuary legatee. A owned some personal, but no other 
 real property, at the time of the devises. Question has 
 arisen which of said legatees or devisees has title to the 
 highway mentioned. What do you say? State your 
 reasons. 
 
 409 
 
 9. A, the ovraer of certain real property, met B, a real 
 estate agent, and said to him, " if you find a purchaser for 
 my land at $1,000 cash, sign a contract for the sale of the 
 same and I will execute the necessary deed." B found a 
 purchaser and signed for A a contract to convey the same, 
 as above, to C, an intending purchaser. 
 
 C tendered the agreed purchase price, but A refused to 
 execute and deliver the deed called for by the contract to 
 convey and repudiated his transaction with B. Conceding 
 that the above facts can be established, what are C's rights 
 in the premises, if any, and why ? 
 
 410 
 
 10. A and B contracted as follows: "In consideration of 
 the purchase by B of a note for $1,000, made by X payable 
 in six months from this date, I, A, hereby guarantee the 
 
140 Bae Examinations and Coueses of Study. 
 
 collection of said note to B. Signed A." When tlie note 
 became due X refused and neglected to pay the same, and 
 B at once sued A on his guarantee as above. Question 
 arises as to A's liability in the action. What do you say, 
 and why? 
 
 411 
 
 11. By a valid contract A sold and agreed to deliver to B 
 1,000 barrels of flour, in lots of 100 barrels each, on the 
 first day of each of the succeeding ten months, for which B 
 agreed to pay A $500 in cash for each installment as deliv- 
 ered. A delivered the first installment and was paid there- 
 for. He refused, without cause, to deliver the second install- 
 ment. B immediately brought an action against A to recover 
 $900 damages, which he claimed to have sustained because 
 of the refusal and neglect of A to deliver 900 barrels of flour, 
 the balance of the flour called for by the contract. Can the 
 action be maintained ? If so, why so ; if not, why not ? 
 
 412 
 
 12. A and B were copartners in business. It was a going 
 concern under a contract having five years to run. A brought 
 an action in equity against his copartner to compel him to 
 account in a certain copartnership transaction which B had 
 conducted secretly and was endeavoring to withhold from A 
 his share of the profits thereof, and to pay him his share 
 thereof. In his complaint A did not ask for a dissolution of 
 the firm, and question arises as to whether A can maintain 
 his action and as to the effect it has on the copartnership 
 existence. What do you say, and why? 
 
 413 
 
 13. A and B were copartners at the time of the death of 
 A. B thereafter sued in his own name for a firm debt con- 
 tracted before the death of A. The defendant pleaded, 
 among other defenses, the non-joinder, as parties plaintiff, 
 of the personal representatives of A. B demurred to the 
 defense of non-joinder. Judgment on the demurrer for 
 whom, and why? 
 
Bab Examinations and Coueses of Study. 141 
 
 414 
 
 14. A made iiis negotiable promissory note for $1,000 
 payable in six months, with interest, and agreed to sell and 
 sold the same to X, who paid him therefor $900. The note 
 thereafter came into the possession of Y in due course. 
 When the note became due Y surrendered it to the maker 
 and took a new note therefor for the same amount in re- 
 newal. The renewal note came into the hands of Z in due 
 course. Has A any defense to the note as against Z ? If so, 
 why so; if not, why not? 
 
 415 
 
 15. The X Trust Company was the owner of ten bonds, 
 each for $1,000, issued by a domestic railroad corporation. 
 The bonds were in the usual form with coupons attached and 
 were drawn payable to bearer. They were stolen from the 
 Trust Company by a clerk in its employ, who pledged them 
 with a firm of hrokers as security for dealings in stock. The 
 stock brokers took the bonds in good faith and for value 
 before they were due. 
 
 The bonds were found, after the arrest of the clerk, in the 
 possession of the brokers, from whom the Trust Company 
 demanded the same. The stock brokers consult you as to 
 their rights and liabilities in the matter. What would be 
 your advice, and why? 
 
 416 
 
 16. A, as agent for B, entered into a contract in writing, 
 not under seal, with C, in his own name as principal. The 
 fact that A was B's agent was not disclosed to C at the time. 
 Thereafter default was made by C in the performance of 
 the contract and A began an aetipn thereon for damages in 
 his own name. C having learned that A was but an agent 
 in the transaction, and was acting for B, defended, and, 
 among other defenses, pleaded that A was not the real party 
 in interest, and that B should be the plaintiff in the action. 
 A demurred to that defense. Judgment on the demurrer for 
 whom, and why? 
 
142 Bae Examinations and Coueses of Study. 
 
 417 
 
 17. A was the owner of a judgment against B for $5,000. 
 He said on an occasion that B was his friend and for that 
 reason he would discharge it for $1,000. X overheard the 
 statement, and without authority falsely represented to A 
 that he was also a friend of B's and had come to him on B's 
 account for an assignment of the judgment for the $1,000, 
 which A had said he would discharge it for. A was thereby 
 induced to assign the judgment to X for $1,000. B having 
 learned of the transaction, tendered $1,000 to X and de- 
 manded a satisfaction of the judgment, which X refused to 
 accept, demanding the face of the judgment. B consults you 
 as to his rights in the premises, if any. What would be your 
 advice, and why? 
 
 418 
 
 18. A as principal and B as surety duly executed and de- 
 livered to C their joint and several bond as security for the 
 fidelity of A as agent while in C's employ. A subsequently 
 violated his trust, when C brought an action on the bond 
 against A and B. B alone defended, alleging in his answer 
 as new matter that when C took the bond he knew that A 
 had previously violated the trust reposed in him by C, and 
 that C did not disclose such misconduct to B, who was 
 ignorant of that fact when he signed the bond. C de- 
 murred to B's answer on the ground that it was insufficient 
 in law upon the face thereof. Who had judgment, and why ? 
 
 419 
 
 19. A' was employed by the X Bank as its bookkeeper. 
 The bank required of A that he should furnish it a bond 
 with sufficient sureties, conditioned that he, A, should faith- 
 fully perform the duties and trust which were reposed in 
 him as such bookkeeper and the duties of any other office, 
 trust or employment relating to the business of the bank. 
 A furnished the required bond, upon which B and C were 
 sureties. After acting several years as bookkeeper A was 
 appointed as receiving teller of the bank. While acting as 
 teller A embezzled $2,000 from the funds of the bank. 
 
Bae Examinations and Coueses of Study. 143 
 
 Upon discovering that fact the bank brought an action on 
 the bond against A, the principal, and B and C, as sureties. 
 The sureties defended upon the ground that A had ceased to 
 act as bookkeeper and had become receiving teller of the 
 bank when the embezzlement took place, and hence that the 
 sureties were not liable upon their bond. What was the 
 decision, and why? 
 
 420 
 
 20. A was the beneficiary named in a policy of life insur- 
 ance issued by the X Company on the life of one C. A 
 being uncertain whether the premium due in November 
 1897, had been paid, wrote to the company to ascertain and 
 the company replied that it had. A relied upon this state- 
 ment, and made no further inquiry until nearly a year later, 
 when he again inquired of the company if the premiums had 
 been paid up to that date, and he was then for the first time 
 informed that the policy had expired under its terms by 
 reason of the non-payment of the premium due in Novem- 
 ber, 1897. Subsequently C died, and thereupon A brought 
 an action against the X Company to recover the amount of 
 such policy. The defendant appeared and defended upon 
 the ground that the policy was forfeited because the pre- 
 mium due in ISTovember, 1897, had not been paid. There, 
 was no dispute as to the facts. Who had judgment, and 
 why? 
 
 421 
 
 21. The Y Fire Insurance Company issued to A a New 
 York standard fire insurance policy for $1,000, upon his 
 storehouse property in the city of Albany, loss, if any, 
 payable to B as his mortgage interest might appear. The 
 policy provided that it would become void unless otherwise 
 provided by an agreement indorsed thereon, if without the 
 knowledge of the insurer foreclosure proceedings were com- 
 menced or notice was given of the sale of any property cov- 
 ered by the policy under or by virtue of any mortgage. It 
 also provided that no ofScer, agent or other representative 
 of the company should have power to waive any condition 
 or provision of the policy, except such as by the terms of 
 
144 Bae Examinations and Coueses of Study. 
 
 the policy miglit be the subject of agreement, and as to those 
 that they should not be deemed to have been waived unless 
 the waiver should be written upon or attached to the policy. 
 A loss having occurred, B brought an action upon the policy, 
 when it appeared that B had previously brought suit against 
 A to foreclose his mortgage on the premises insured, ob- 
 tained a judgment, advertised the premises for sale, and 
 that three days before the day appointed for the sale the 
 storehouse was totally destroyed by fire. There was no 
 waiver in writing, but prior to the foreclosure suit B orally 
 informed D, a duly authorized agent of the Y Company, 
 who signed the policy, that he was about to commence such 
 a foreclosure suit, and D agreed that this might be done 
 without injuring the plaintiff's rights under the policy. 
 These facts being conceded, who had judgment, and why? 
 
 422 
 
 22. A, the owner and occupant of a storehouse in the city 
 of Syracuse, made an agreement with B in consideration of 
 certain charges paid therefor to store his, B's, furniture 
 for safekeeping, by allotting to him in such building certain 
 space, which was enclosed by a wooden partition with a 
 door upon which there were two loocks ; the key of one was 
 kept by B and the key of the other by A. A assured B that 
 his goods would be safe, and would be guarded day and 
 night. While there the most of B's goods were stolen by 
 those in charge of the building, whereupon B sued A for the 
 value of the property stolen. What was the relation be- 
 tween the parties, and who had judgment, and why? 
 
 423 
 
 23. In 1866 A deposited with B ten government bonds 
 of the value of $1,000 each, with instructions to B not to 
 deliver them except upon A's written order. Subsequently 
 C, A's wife, called for the bonds and B delivered them to 
 her without any written order from A. Afterwards A de- 
 manded the bonds and B refused to deliver them, where- 
 upon A sued therefor. B defended upon the ground that he 
 
Bar Examinations and Coueses of Study. 145 
 
 had delivered them to A's wife. There being no dispute 
 as to the facts, who had judgment, and why? 
 
 424 
 
 24. In 1900 A was a manufacturer and dealer in hollow- 
 ware. On the first day of January of that year B wrote to 
 A asking him to quote him (B) his (A's) best prices for 
 hollow-ware, to be delivered in the city of IsTew Tork. Ou 
 the next day A answered B's letter, sending him a cata- 
 logue of his prices, and offered to sell B such goods as he 
 should order at a discount of 65 per cent from the cata- 
 logue prices. Upon the receipt of that offer B at once 
 ordered a specific bill of goods which was to be delivered by 
 A forthwith as directed. Ten days later, and after the deliv- 
 ery of the first bill, B ordered a second bill of the same kind 
 of goods, which, owing to an advance in price, A refused to 
 fill and so notified B. B having refused to pay for the first 
 bill, A sued him (B) therefor. B appeared and admitted 
 the complaint, but set up as a counterclaim an alleged breach 
 of contract by A in not furnishing B with the goods de- 
 scribed in his second order. Was B entitled to recover upon 
 his alleged counterclaim ? Give the reasons for your answer. 
 
 425 
 
 25. A owning certain bonds of the X Eailroad Company, 
 sold them to B, who relied upon the oral promise of A that 
 if at any time he, B, became dissatisfied with the bonds, he, 
 A, would on thirty days' notice take them back and return 
 the money B paid therefor. Subsequently the company mak- 
 ing default in the payment of the interest, B wrote to A 
 that he was dissatisfied, and gave thirty days' notice that he 
 required A to take the bonds back and refund the purchase 
 price. Thereafter B tendered the bonds and demanded the 
 money paid therefor, which A refused to repay. B then 
 brought an action against A to recover the amount paid by 
 him, B. A defended on the ground that the contract not 
 being in writing was void under the Statute of Frauds. 
 There being no dispute as to the facts, what was the de- 
 cision, and why? 
 10 
 
140 Bae Examinations and Coxjeses op Study. 
 
 EXAMINATION PAPER. 
 No. 9. 
 
 AFTERNOON — FOUR HOURS. 
 
 426 
 
 1. !A locomotive engineer was injured by the machinery 
 of the locomotive -which he was running. Upon the trial of 
 an action for daijiages against the railroad company the 
 question (which was material) arose whether the engine 
 was properly constructed or out of repair at the time of the 
 accident. The plaintiff offered to prove, as relevant to the 
 question, that immediately after the accident the railroad 
 company made extensive repairs and changes in the loco- 
 motive. Was the evidence admissible or not? If so, why? 
 If not, why not ? 
 
 427 
 
 2. A locomotive engineer of the Y Eailroad Company 
 was fatally injured by the derailment of his engine, caused 
 by a defect in the track. After his death, B, his widow (she 
 having been appointed administratrix of his estate), brought 
 action against the railroad company to recover damages for 
 the loss of her husband, on the ground of negligence. On 
 the trial the defendant offered to prove the declarations of 
 the deceased, made on the day following the accident, tend- 
 ing to contradict material evidence given by the plaintiff. 
 Objection is made that the evidence is hearsay and incompe- 
 tent. What should the ruling be, and for what reason ? 
 
 428 
 
 3. A brought an action against B to recover damages for 
 the alienation of his wife's affections. On the trial A pro- 
 
Bak Examinations and Coueses of Study. 147 
 
 duced and offered in evidence a letter, in chief, written to 
 lim by his wife, wherein she plainly stated that she had no 
 affection for him. A, hut that B had won her affections, and 
 that she had great love and regard for him. Objection is 
 made as incompetent, which was overruled, and the letter 
 received. What do you say as to the ruling? Give your 
 reasons. 
 
 429 
 
 4. On the trial of an action wherein the plaintiff and ona 
 B had testified in plaintiff's behalf, the defendant, after 
 plaintiff had rested, offered to prove by C material declara- 
 tions relating to the merits made by both the plaintiff and 
 B but of court, contradictory to the evidence given by them 
 on the trial, without first having inquired of either, on tha 
 witness stand, whether or no he had made such declarations, 
 and on that ground the plaintiff's attorney objected to the 
 evidence offered both as to the plaintiff and B. How did 
 the court rule, and why ? 
 
 430 
 
 5. In a judicial proceeding it was material and relevant 
 to establish that A was the legitimate son of B and C, his 
 parents, both of whom were dead. The legitimacy was dis- 
 puted. The attorney for A, the son, offered to prove by D 
 that a short time before C, the mother of A, died, she stated 
 to him, D, that she and B were lawful husband and wife, 
 and that A was the fruit of their marriage. The evidence 
 was objected to as incompetent and hearsay. How did the 
 court rule, and why? 
 
 431 
 
 6. A was arrested in the county of Albany, and subse- 
 quently indicted in that county for having received in thai 
 county a certain gold watch, stolen property, he knowing 
 the same to have been stolen. A was wearing the watch 
 when arrested. On the trial it was shown conclusively that 
 the watch was stolen by a pickpocket in the city of Koches- 
 ter, Monroe county, and was delivered to A by the thief in 
 Rochester. At the close of the evidence the attorney for A 
 
148 Bae Examinations and Coukses of Study. 
 
 requested the court to direct the jury to acquit the prisoner 
 upon the grounds: 
 
 1st. That there was a fatal variance between the 
 proof and allegations of the indictment as to the county 
 in which A received the watch. 
 
 2d. That the courts of Albany county had no juris- 
 diction in the premises ; that the defendant could, if at 
 all, be indicted and convicted only in the county of 
 Monroe for the ofFense charged. 
 What did the court do with the requests, and for what 
 reason ? 
 
 432 
 
 7. On the trial of an indictment the defendant gave evi- 
 dence of his good character. In its charge to the jury the 
 court said: 
 
 " The defendant also produces some evidence as to 
 his good character, but before the week passes you will 
 find that all these cases are to be decided upon facts by 
 twelve common sense business men. While it is true 
 that in doubtful cases evidence of good character may, 
 and perhaps should be effectual to acquit from a crimi- 
 nal charge, it is your duty to decide the case upon the 
 facts presented, irrespective of the evidence of char- 
 acter." 
 
 The defendant excepted to the charge. Was the charge 
 correct or not ? If you say correct, state your reasons. If 
 not correct, what is the trouble? Give your reasons and 
 the law applicable. 
 
 433 
 
 8. The defendant, who had burglarized the jewelry store 
 of A, while engaged in securing and stealing valuables 
 therein was surprised by the unexpected appearance of the 
 night watchman, and in his effort to escape, with no intent 
 to burn or destroy the store, he accidentally overturned a 
 lighted oil lamp from which the store took fire and was com- 
 pletely destroyed. The defendant was indicted for arson in 
 the third degree for burning the store. Can he be legally 
 convicted of the crime charged or not ? State your reasons. 
 
Bak Examinations and Coueses of Study. 149 
 
 434 
 
 9. A, the owner of certain premises in the city of New 
 Tork, employed one X, a contractor, to lay a new sidewalk 
 in front of the same. The contractor tore up the old side- 
 walk and began to construct the new one, in the course of 
 which one of his employees carelessly and negligently failed 
 to guard and protect the work, by reason of which B, a 
 pedestrian, without negligence on his part, was injured by a 
 projecting flagstone in process of being laid. B now sues A, 
 the owner, for his damages caused as above. Can he main- 
 tain his action ? If so, why so ; if not, why not ? 
 
 435 
 
 10. A contractor was engaged in blasting rock on land 
 adjoining the premises of A. The blasting was not done in 
 a negligent or improper manner, nor with want of skill, but 
 each blast caused concussion with great disturbance and 
 vibration of the earth and air, and jarred A's house and 
 ultimately damaged the same in the sum of $1,000. A now 
 consults you as to his rights in the premises. What would 
 be your advice, and why ? 
 
 436 
 
 11. A was insolvent and he knew the fact. He purchased 
 goods of X on credit and omitted to disclose his financial 
 condition to his vendor at the time, who would not have sold 
 to him the goods if he had known the same. When the debt 
 became due A could not pay, and had no property, the goods 
 he purchased of X having been sold in the course of busi- 
 ness and the proceeds used in paying current business debts. 
 X now consults you as to whether he can maintain an action 
 against A in fraud upon the facts stated. What would bo 
 your advice, and why? 
 
 437 
 
 12. A, having a wife and child, bequeathed, by his last 
 will and testament, his entire estate of $100,000 in govern- 
 ment bonds to the " X Missionary Society " for the propa- 
 gation of the Gospel in foreign lands. The wife consults 
 you as to the will and its effect. What would be your advice, 
 and why? 
 
150 Bae Examinations and Coueses of Study. 
 
 438 
 
 13. A father in and by his last will and testament devised 
 to his son John a certain farm in the town of X, and the 
 residue of his estate to his daughter Jane. At the time of 
 the father's death John was dead and Jane, the sister, claims 
 the farm as a lapsed devise, to the exclusion of John's son 
 Peter, who was not in existence at the time the will was 
 made, hut who survived the testator. Who has the farm, 
 and why? 
 
 439 
 
 14. A father drew his own will and therein and thereby 
 bequeathed to his son John one thousand dollars in cash, and 
 the residue of his estate, amounting to nine thousand dollars 
 in cash, to his only other child Jane. John was one of the 
 two subscribing witnesses to the will, which could not be 
 proved without his testimony. John consults you as to his 
 status under the circumstances. What would you advise 
 him, and why? 
 
 440 
 
 15. A testator devised his estate to X in trust for the sup- 
 port and maintenance of the testator's son John, with power 
 in John, in his discretion, after he arrived at the age of 
 forty-five years, to declare the trust at an end and take over 
 the corpus of the estate. John went into business and lost, 
 and a judgment for a business debt was entered and dock- 
 eted against him in the sum of five thousand dollars when 
 he was forty-three years old. He now arrives at the age of 
 forty-five and question arises as to the collectibility of the 
 judgment out of the trust fund, both John and the trustee 
 refusing to pay the same, and John refusing to exercise his 
 discretion as to the ending of the trust. What do you say, 
 and why? 
 
 441 
 
 16. An art collector having a gallery, which he desired 
 to complete, of the paintings of one Whistler, an artist, who 
 is dead, entered into a valid agreement with an art dealer of 
 purchase and sale wherein he agreed to purchase and the 
 dealer agreed to sell to him a unique painting by Whistler 
 
Bae Examinations and Cotteses of Study. 151 
 
 for $10,000, its fair market value. The dealer eventually 
 refused to deliver the picture, and the collector consults you 
 as to his right to obtain specific possession of the same. 
 What "would be your advice, and why ? 
 
 442 
 
 17. A, for the purpose of defrauding his creditors, trans- 
 ferred his real estate to B upon a secret trust, in and by 
 which B agreed to retransfer the property to him as soon 
 as he forced a 'settlement with his creditors. Having done 
 so, he demanded of B that he retransfer as he had agreed, 
 which B refuses to do. A now seeks in equity to enforce the 
 agreement as to the retransfer. What is your opinion of 
 the transaction, and what maxim in equity is involved ? 
 
 443 
 
 18. C, a stockholder of the X bank, whicb was duly 
 organized under the Banking Laws of this State, desiring to 
 be represented at a meeting of the corporation duly called, 
 executed in proper form and delivered to B, the teller of 
 said bank, his proxy, authorizing B to vote for him, C, at 
 said meeting. B offered to vote on such proxy when a ques- 
 tion arose as to its validity, and whether B could properly 
 vote thereon. Was the proxy valid? If so, why; if not, 
 why not ? 
 
 444 
 
 19. A was the owner of one hundred shares of stock in 
 the Y Company, for which he held a certificate that was acci- 
 dently destroyed by fire. Subsequently A made application 
 to the Y Company to issue to him a new certificate for the 
 shares represented by the certificate so destroyed, and the 
 corporation, while admitting that A was the owner of such 
 shares and that such certificate was destroyed as A claimed, 
 still refused to issue a new certificate in the place of the one 
 destroyed. Can the corporation be compelled to issue such 
 new certificate, and if so, how ? If not, why not ? 
 
152 Bar Examinations and Coubses of Study. 
 
 445 
 
 20. A brought an action against the B corporation, alleg- 
 ing in his complaint that it was a domestic corporation duly 
 organized under the laws of this State. The defendant ap- 
 peared and answered by denying each and every allegation 
 of the complaint. On the trial the plaintiff proved all the 
 allegations of the complaint except the organization of the 
 defendant, and then rested. Thereupon the defendant moved 
 for a nonsuit upon the ground that there was no evidence of 
 the defendant's incorporation. What was the decision, and 
 why? 
 
 446 
 
 21. A, the wife of B, was employed by C as his sten- 
 ographer and typewriter, for which C agreed to pay her $10 
 per week. A was engaged in this employment for two years, 
 and C paid her $10 each week during that time. At the 
 expiration of two years, by the direction of B, A left C's 
 employment and B demanded of C $1,040 as the compen- 
 sation for his wife's services during the two years she was 
 in his employ, which C refused to pay. Thereupon B 
 brought an action action against C to recover therefor. On 
 the trial all the facts were admitted. At the close of the 
 evidence each party moved for a judgment in his favor. 
 Who had judgment, and why ? 
 
 447 
 
 22. A and B were husband and wife, inhabitants of this 
 State, and lived in a state of separation without being di- 
 vorced. They were the parents of C, a son ten years of age, 
 who was living with and in the custody of his mother. A, 
 the father believing that it would be better for C to live with 
 him and remain in his custody consults you as to the manner 
 of obtaining a legal determination as to who should have the 
 custody of the child. What would you advise, and what 
 would be the principle upon which the court would act in 
 determining the question ? 
 
 448 
 
 23. A had one child, B. Subsequently he legally adopted 
 as his child one C, who was a minor. Afterwards A made 
 
Bae Examinations and Coueses of Study. 153 
 
 his will by which he gave all the property of which he should 
 die seized to his, A's, heirs, share and share alike. A sub- 
 sequently died and his will was duly admitted to probate. 
 B and being uncertain in respect to their rights under A's 
 will, consult you. What would you advise ? Give the rea- 
 sons for your answer. 
 
 449 
 
 24. A, who was a generous and public spirited citizen of 
 the city of Syracuse, owned a large amount of real and per- 
 sonal property which was taxable and taxed against him in 
 that city. The Legislature, however, in view of A's gen- 
 erosity and public spirit, and to encourage his public enter- 
 prise, enacted a local and private statute exempting A from 
 taxation upon his real and personal property located and 
 taxable in said city. A question having arisen as to the 
 validity of the statute, A consults you. What do you say, 
 was it valid? If so, why; if not, why? 
 
 450 
 
 25. A was duly elected to a city office not specially pro- 
 vided for in the Constitution. The term of such office was 
 established by statute at six years. Before the expiration of 
 A's term the Legislature passed an act which in effect ex- 
 tended the term of such office to nine years. Under the 
 latter statute A claimed to be entitled to hold the office dur- 
 ing the full term of nine years. B instituted a proceeding 
 in the nature of a quo warranto to test the question whether 
 A's claim that he was entitled to the office for nine years 
 could be sustained. On the trial B proved that he was duly 
 nominated and elected to fill such office upon the expiration 
 of the term of six years, provided a vacancy then existed. 
 There was no dispute as to the facts, what was the decision, 
 and why ? 
 
154 Bae Examinations and Coueses of Study. 
 
 EXAMINATION PAPER. 
 No. 10. 
 
 FORENOON — FOUR HOURS. 
 
 GROUP ONE. 
 PLEADING AND PRACTICE AND EVIDENCE. 
 
 451 
 
 1. You are the defendant's attorney in an action in wBieh 
 it is necessary to serve an affidavit of merits duly verified 
 by the defendant. Drav? such an affidavit, stating fully 
 and correctly the facts required to be alleged therein. 
 
 452 
 
 2. A, as Commissioner of Highways of the City of New 
 York, was by law required to summarily remove all en- 
 croachments or obstructions u:pon any of the streets of that 
 city. B unlawfully erected and maintained a news-stand 
 upon one of its streets, which C, a citizen and resident of the 
 city, notified and demanded of A that he as such Commis- 
 sioner should remove. A, however, disregarded such request 
 and took no action in compliance therewith. C now consults 
 you to ascertain if he can maintain any action or proceeding 
 against A to compel him to remove such news-stand. What 
 would be your advice? Give the reasons for your answer 
 and the nature of O's remedy, if he has any. 
 
 453 
 
 3. In an action brought by A against B to prevent him 
 from committing threatened waste upon the premises of A, 
 the latter obtained an uijunction restraining B therefrom, 
 which was improvidently granted, but by a Court having 
 jurisdiction. It was served upon B, who disobeyed the same, 
 
Bak Examinations and Coueses of Study. 155 
 
 when a proceeding was duly instituted against B to punish 
 hini for contempt. Can it be maintained? If so, why; if 
 not, why ? 
 
 454 
 
 4. As attorney for A you commenced an action against B 
 upon a written contract upon which C was the sole subscrib- 
 ing witness. B, by his answer, denied the making of the 
 contract. You duly subpoenaed C as a witness who promised 
 to be present at the trial as such. After the case was called, 
 a jury impanelled and the trial had proceeded to near the 
 close of the plaintiff's case, you find that C is not in at- 
 tendance as a witness, but that he has left the State, so that 
 it is impossible to then obtain his testimony, which is vital 
 to establish A's cause of action. Under the circumstances 
 the Court states that it will grant you any relief to which 
 you are entitled. "What motion would you make, or for what 
 relief would you apply ? 
 
 455 
 
 5. A brought an action in the Supreme Court against B 
 and C for fraud. It was tried before a jury which agreed 
 upon a verdict in favor of A vs. B and in favor of C vs. A. 
 When the jury returned into Court its foreman mistakenly 
 announced that the jury had found a verdict in favor of 
 A vs. B and C, and as announced the verdict was received 
 and recorded by the Court. Had C any remedy? If so, 
 what ? Give the reason for your answer. 
 
 456 
 
 6. A, as trustee, brought an action to procure a deter' 
 mination of conflicting claims to a trust fund in his hands, 
 alleging his readiness to deposit the money in the hands of 
 the Court, or to make such other disposition of it as the 
 Court should direct. After trial the Court entered a judg- 
 ment directing A as such trustee to pay specified sums, to the 
 various claimants within twelve days after service of a 
 copy of the judgment tipon A. A copy of the judgment was 
 duly served by the various claimants, with notice of entry 
 upon A, who did not pay the sums claimed as therein di- 
 rected. Thereupon the parties entitled to recover the sums 
 so awarded instituted a proceeding to pimish A for contempt 
 
156 Bae Examinations and Coueses of Stttdt. 
 
 in not paying such claims, contending that the remedy for 
 the enforcement of the judgment was by commitment for 
 contempt and not by execution. What was the decision, and 
 why? 
 
 457 
 
 7. A and B were co-sureties for C under and by virtue of a 
 contract in writing between C and D, which stated only the 
 contract between the principals and that they, A and B, 
 were sureties for the faithful performance of the same on the 
 part of C. A, as such surety, was compelled to pay to D 
 $1,000 on account of C's default. A now sues B for the 
 $1,000 paid and on the trial offers to prove that prior to 
 their executing the contract as sureties, and as the con- 
 sideration for his signing the same, B verbally agreed to 
 indemnify A against loss therefrom. Objection is made 
 thereto. What should be the ruling of the Court and why ? 
 
 458 
 
 8. In an action against B for an accounting as to certain 
 securities alleged to have been loaned by A to B, C, the wife 
 of B, was called as a witness by A and testified to a conver- 
 sation with her husband when they were alone relating to 
 A's securities taken by B, his obligation to A for the same 
 and his promise to secure A therefor. This evidence was 
 objected to by B on the ground that the conversation be- 
 tween C and B was a confidential communication and pro- 
 hibited by statute. What was the correct ruling, and why? 
 
 439 
 
 9. In an action pending in the' Supreme Court the County 
 Judge of the County of C was appointed as referee to hear 
 and determine the issues therein. After it was tried and 
 determined the defendant moved to vacate the order of 
 reference and all subsequent proceedings on the ground that 
 the Court had no jurisdiction to appoint the said County 
 Judge as such referee because the County of C contained 
 more than 120,000 inhabitants. There was, however, no 
 proof as to its population when the order was made except 
 the last enumeration made eight years previously, which 
 showed it contained less than 120,000 inhabitants, although 
 
BaE ExiMINATIONS AND CoUESES OF StUDT. 157 
 
 the population at the time the order was made may have 
 exceeded that number there was no proof nor public record 
 disclosing that fact. The defendant, however, to sustain his 
 motion, claimed that the Court should take judicial notice 
 of the actual population of the county when the order was 
 made, and therefore that the order should be vacated. What 
 was the decision, and why? 
 
 460 
 
 10. A borrowed $1,000 of the X Banking Corporation 
 and gave his note therefor due in ninety days. Subsequently 
 A died and B was duly appointed sole executor of A's estate. 
 The bank afterwards sued B, as executor, to recover the 
 amount of said note against the estate of A. B defended on 
 the ground that the note had already been paid. On the 
 trial the defendant gave testimony tending to prove the pay- 
 ment of the note by A to D, who was the cashier and a 
 large stockholder in the X Bank. The bank then called D, 
 who was sworn as a witness, and offered to prove by him 
 that the note was not paid to him as claimed by B. This 
 evidence was objected to on the ground that D was incompe- 
 tent because interested in the event of the action. What was 
 the decision, and why ? 
 
 461 
 
 11. A, as administrator of the estate of B, brought au 
 action against C to set aside a chattel mortgage given by B 
 to C, as being in fraud of the creditors of B on the theory 
 that the mortgage was made with the understanding that B 
 might sell and dispose of the mortgaged property and apply 
 the avails to his own use. On the trial A offered to prove 
 that when the mortgage was given, C's agent, who acted for 
 him, stated to B that the giving of the mortgage would not 
 in any way effect him. This evidence was objected to by 
 as incompetent and inadmissible. What was the ruling, and 
 why? 
 
 462 
 
 12. A was indicted and on trial for the crime of murder 
 in the first degree. His defense was insanity, and there was 
 some evidence, though slight, to establish that defense. Upon 
 whom then rested the burden of showing the defendant's 
 sanity when the crime was committed, and why ? 
 
158 Bae Examinations and Cotteses of Study. 
 
 GROUP TWO. 
 SUBSTANTIVE LAW. 
 
 (Begin new page with the above heading.) 
 463 
 
 13. A conveyed by deed his farm to B, for whicli B paid 
 $2,000 cash, and gave A his note for $1,000 due at one year 
 for the balance of the purchase price. B sold the farm to 
 C for $1,000 in advance of the purchase price for which he 
 had bought, and, B not having recorded his deed from A, by 
 agreement between A, B and C, paid to B $2,000 which he 
 had paid A, also the $1,000, the advance purchase price, and 
 also paid, took up and surrendered to B the $1,000 note of B 
 held 'by A ; then B surrendered up to A his unrecorded deed, 
 which was then destroyed, and A gave a deed of the farm 
 direct to C, which C immediately recorded. Question now 
 arises as between B and C, who has the title to the farm. 
 What do you say, and for what reason? 
 
 464 
 
 14. A and B, husband and wife, had title in fee, as ten- 
 ants by the entirety, to valuable real estate. They had one 
 child, C, issue of the marriage. A procured a divorce from 
 B, his wife, for principal cause, and shortly thereafter died 
 intestate, leaving B and C surviving. Who now owns the 
 real estate? State your reasons fully. 
 
 465 
 
 15. A devised the use of his farm to B for life, and on 
 his death the farm to go in fee to C. B, being in possessioa 
 under the devise, sowed the entire farm to wheat, but before 
 the crop was harvested or matured he died and C took pos- 
 session of the farm as remainderman. The crop having 
 matured, the administrators of B undertook to harvest the 
 same, when C forbade them, claiming that the wheat be- 
 longed to him, and that they were trespassers in entering on 
 the farm to harvest it. To whom does the wheat belong, and 
 what are the rights of the parties ? State your reasons. 
 
Bae Examinations and Coueses op Study. 159 
 
 466 
 
 16. A and B entered into an agreement by which A, who 
 was an artist, was to make a crayon portrait of B's wife, for 
 which he, B, was to pay therefor $75.00, if it was in all re- 
 spects satisfactory to him, B, otherwise B was to be under no 
 obligation to accept or pay for it. After the portrait was 
 completed A took it to B, who honestly declared that it was 
 not satisfactory to him, either as to its likeness or the quality 
 of the work, and refused to accept or pay for it. A sued B to 
 recover the $75.00. B defended, setting up the contract, and 
 alleged that the portrait was unsatisfactory to him both as to 
 its likeness and the quality of the work. On the trial plain- 
 tiff admitted the terms of the contract, proved his perform- 
 ance of the work, and admitted the objections made to the 
 portrait by defendant, and called several experts as witnesses, 
 who testified that the work of the portrait was first-class and 
 its likeness remarkably good, and rested. The defendant 
 also rested, offering no evidence. Defendant then asked for 
 a non-suit. Plaintiif asked for direction of a verdict against 
 defendant for $75.00. What did the Court do, and for what 
 reason ? 
 
 467 
 
 17. A and B were joint and several makers of a promissory 
 note held by 0. On the day after the expiration of six years 
 from maturity, when the note was outlawed. A, without the 
 knowledge or consent of B, paid to C the unpaid interest for 
 six years, which C, at A's request, endorsed on the note. 
 One year thereafter, the note still being unpaid, C sued A 
 and B thereon, when B interposed as a defense the statute 
 of limitations. Was B's defense successful or not, and why ? 
 
 468 
 
 18. A loaned to the firm of B and C $5,000 under an 
 agreement by which the firm was to pay him for the use 
 thereof ten per cent of the profits of its business during the 
 succeeding five years. Afterwards D, who had become a 
 creditor of the firm upon a transaction had during the 
 existence of the agreement, sued A, B and for the indebt- 
 edness due him, alleging their liability thereon as copartners. 
 
160 Bae Examinations and Coueses of Study. 
 
 Tipon the facts stated. State whether or not A was liable ia 
 the action, giving the reasons for your answer. 
 
 469 
 
 19. A and B were copartners in business. The firm was 
 insolvent, but had valuable assets. The firm was indebted to 
 C, who was the wife of B, in an amount equal to the value 
 of the assets for money loaned to the firm. The firm was 
 also indebted in the same amount to D, who was A's wife, 
 for money loaned. B, without the knowledge or consent of 
 his partner. A, transferred the entire assets to C, his wife, in 
 payment of her debt. Neither A nor B had any property ex- 
 cept what was in the firm's assets. There was then no bank- 
 ruptcy law. What do you say as to the legality of B's 
 transaction, and as to the rights and remedy, if any, of D ? 
 State your reasons. ^^ 
 
 470 ^ 
 
 20. A and B exchanged promissory notes for the same 
 amount made by them respectively payable to the order of 
 the other. The exchange was made for the mutual accommo- 
 dation of the parties. A had the note he received discounted 
 for his own benefit, but when it became due it was not paid; 
 it was worthless when issued, l^evertheless B, as the owner 
 and holder thereof, sued A on the note the latter had made 
 in the transaction. A defended and pleaded failure of con- 
 sideration as above stated. Those facts appearing, judgment 
 for whom, and why? 
 
 471 
 
 21. In a transaction had between A and B, A made and 
 delivered to B his negotiable promissory note. The note, 
 under the facts of the transaction, was fraudulent as between 
 the parties. The note came into the hands of C, who was a 
 holder in due course. A refused to pay the note when due 
 and was sued thereon by C. A defended, and in his answer 
 admitted the making and delivery of the note, and its non- 
 payment, and then set up facts which, if proven, would 
 establish its fraudulent character. On the trial C offered the 
 note in evidence, proved the amount due thereon and rested. 
 A then proved that the note was fraudulent in its inception, 
 
Bae Examinations and Coukses of Study. 161 
 
 and also rested. Both parties then moved for judgment. 
 Judgment for whom, and why? 
 
 472 
 
 22. A merchant authorized his bookkeeper to draw and 
 negotiate commercial paper for his use, and he did so for 
 a number of years through one X, a note broker, all of which 
 paper the merchant regularly paid. On an occasion, with 
 intent to defraud his principal and for the purpose of rais- 
 ing money for his own use, the clerk presented his principal's 
 note in the usual form to the broker and had it discounted 
 by him. X paid value therefor without notice or circum- 
 stances suggesting the suspicion that it was not of the same 
 character as the paper previously discontinued by him. The 
 clerk absconded with the proceeds of the note. Question 
 arises as to the liability of the merchant thereon to the 
 broker. What do you say, and why? 
 
 473 
 
 23. A, the owner of certain real property, authorized B, 
 as his agent, to sell the same for $10,000, and instructed 
 him to make no representations concerning its title or value. 
 In fraud of A, and with intent to defraud him, as well as 
 C, an intending purchaser, B made false and fraudulent 
 representations both as to its title and value, and thereby 
 induced C to purchase the property for $15,000, which 
 amount C paid to B, who paid over $10,000 thereof to A, 
 who accepted the same in good faith and in ignorance of 
 B's fraud in the premises. C discovered the fraud, re- 
 scinded the contract, tendered to A a reconveyance of the 
 property and sued him to recover back the consideration 
 paid. On the facts stated, is C entitled to recover from A 
 the $15,000 paid to his agent? If so, why so; if not, why 
 not? 
 
 474 
 
 24. A was surety for B, who owed G $5,000. C had in 
 addition as collateral security for the debt $5,000 par value 
 of the bonds of the X Co. B tendered the amount of tho 
 debt to C, when it became due, but the latter requested him 
 
 11 
 
162 Bab Examinations and Coueses of Study, 
 
 not to pay it then as he had no present use for the money 
 and B withdrew his tender. The bonds subsequently be- 
 came worthless and B insolvent. C thereupon tendered the 
 bonds to A and demanded payment of the debt from him. 
 A then first learned of the above transaction. He now con- 
 sults you as to his liability under the circumstances dis- 
 closed. What would be your advice, and why ? 
 
 475 
 
 25. A and B were co-sureties for C for the payment of 
 a debt for $5,000 which C owed to B. A, as surety, com- 
 promised the debt for $2,500, which sum he paid to D 
 in settlement of the same. He now consults you as to hid 
 rights against B, his co-surety under the circumstances 
 above disclosed. What would be your advice, and why ^ 
 Give your reasons. 
 
Bab Examinations and Coueses of Study. 163 
 
 EXAMINATION PAPER. 
 No. 10. 
 
 AFTERNOON — FOUR HOURS. 
 
 GROUP TWO — SUBSTANTIVE LAW (Continued). 
 476 
 
 1. A -was the owner in fee and in possession of a lot of 
 land upon which a house was in process of construction by 
 one B, under a contract binding him, B, to furnish materials 
 and complete the building above the foundation within a 
 specified time not yet expired, and for a sum payable after 
 its completion. Before its completion the X Insurance Co. 
 issued to A a policy of fire insurance on such building for 
 its full value. Subsequently a fire occurred and the house 
 was totally destroyed. Whereupon A brought an action 
 upon such policy to recover the value of the building de- 
 stroyed, although A had paid B nothing for the work and 
 materials furnished by him. Who had judgment, and why ? 
 
 477 
 
 2. A held an accident policy of insurance on his life in 
 the T. Accident Insurance Co. It provided that the insur- 
 ance company should not be liable for the death of the in- 
 sured from " inhaling of gas." The insured was found 
 dead in bed in his room at the hotel where he was stopping. 
 His death resulted from the accidental and unconscious in- 
 haling of illuminating gas which had in some way been 
 turned on so that the atmosphere of the room was filled with 
 it. An action was subsequently brought on said policy by 
 the personal representatives of A and the insurance com- 
 pany defended upon the sole ground" that A's death was 
 caused by the inhaling of gas within the meaning of such 
 
164 Bae Examinations and Coueses of Study. 
 
 policy, and consequently the company was not liable. The 
 plaintiff, however, insisted that the exemption in the policy 
 from liability for death from inhaling of gas had no appli- 
 cation in this case, but applied only to a voluntary and in- 
 telligent act on the part of the insured and not to an in- 
 voluntary and unconscious one. Who had judgment, and 
 why? 
 
 478 
 
 3. A, B and C were joint owners of a sailing vessel. A 
 entered into a contract with B and C by which he. A, agreed 
 to take the vessel to sail on shares. He to man her, pay 
 the crew, furnish supplies and have absolute control and 
 management thereof. The vessel was lost through the negli- 
 gence of A. Is A liable to his co-owners? If so, why so; 
 if not, why not ? 
 
 479 
 
 4. A and B entered into a contract whereby A agreed to 
 manufacture for B 100 pairs of pruning shears in all re- 
 spects like the sample furnished. B was to furnish the 
 rough castings for the handles, etc., and A to furnish the 
 blades and complete their manufacture so as to conform to 
 the sample furnished. B delivered the castings and A 
 manufactured the shears, but failed to make them conform 
 to the sample, and they were consequently worthless. The 
 question has arisen between the parties in whom the title to 
 the shears which have been completed rests, and what 
 was the nature of the contract. What do you say, and why ? 
 
 480 
 
 5. A sold to B a supposed valuable horse for $1,000, 
 warranting it to be gentle and kind, upon which warranty 
 B relied. The horse was delivered to B, who paid the 
 price, and he immediately hitched it, when the horse 
 proved to be most vicious and unkind, and, clearly, not as 
 warranted. B at once duly offered to return the horse to 
 A (which A refused to accept) , and notified him that he 
 rescinded the sale and purchase, and demanded of A the 
 retiim of $1,000, the paid purchase price, which A re- 
 fused. B then sued A for $1,000, the purchase price of 
 
Bae Examinations and Courses of Study. 165 
 
 the horse. On the trial plaintifF established the foregoing 
 facts and rested. A, having answered, appeared on the 
 trial, but offered no evidence. The evidence being closed, 
 plaintifF asked the Court to hold that he, plaintiff, had 
 the right to rescind, and, from the evidence, he had re- 
 scinded the sale and purchase, and was entitled to $1,000, 
 the purchase price paid, as and for his dam-ages against A, 
 and asked the Court to direct a verdict against A for that 
 amount accordingly. To all of which the defendant ob- 
 jected. What did the Court do, and for what reason ? 
 
 481 
 
 6. A meeting B, who was driving a runabout auto which 
 he owned, said, " I'll give you $500 for that automobile 
 and pay you $150 to run it and my touring car (which A 
 owned) for one month, commencing to-morrow morning." 
 B answered, "All right, I agree. The automobile is your's. 
 I'll bring it to you to-morrow morning and commence my 
 work." A replied, "All right. I'll expect you," and they 
 separated. The following morning B appeared with the 
 automobile and offered it, and also his services, as agreed. 
 A refused to accept the automobile, and also told B that 
 he did not want his services, and, without just cause, re- 
 pudiated his entire agreement. What, if any, are the 
 rights of B against A? State your reasons. 
 
 482 
 
 7. A and B were jointly indicted for burglary. When 
 arranged for trial they were represented by separate coun- 
 sel, and A demanded that he be tried separately, to which 
 B objected and demanded that they be tried together. What 
 did the Court direct? State the rule applicable to separate 
 trials of defendants jointly indicted. 
 
 483 
 
 8. A, on returning from a hunt, in the night time, and 
 ■with no intent or purpose except to unload the same, negli- 
 gently discharged his gun into the highway and killed X 
 who was passing. Is A guilty of any crime ? If so, of what 
 crime ; if not, why not ? 
 
166 Bab Examinations and Coueses of Study. 
 
 484 
 
 9. A and B agreed at ITiagara Falls to go across the 
 Suspension Bridge into Canada and fight a duel with re- 
 volvers at sunrise the following morning. They went ac- 
 cordingly, C going with A as his second, and D going with 
 B as his second. The duel was fought according to pro- 
 gram (C and D acting as seconds for their respective prin- 
 cipals), in which A inflicted a wound upon B whereof B 
 died the following day in Canada. The other three re- 
 turned to l^iagara Falls immediately, and within three 
 months all were indicted and put on trial in Albany county 
 because of the transaction causing B's death. State 
 whether all or either of them were convicted. If not all, 
 who, if any, were convicted and for what crime; if not, 
 why not ? 
 
 485 
 
 10. A brought an action against the X. B. E. Co. to 
 recover damages for personal injuries alleged to have been 
 sustained by reason of the negligence of the defendant, 
 claiming in his complaint to have suffered permanent 
 spinal and internal injuries. Defendant, by its answer, 
 denied the negligence, and also denied that it had any 
 knowledge of the nature or extent of plaintiff's injuries, 
 but was wholly ignorant thereof. Before the trial the de- 
 fendant, on affidavits setting forth the foregoing facts, duly 
 made a ^notion for the Court to grant an order requiring 
 the plaintiff to submit to a physical examination as to tho 
 injuries complained of, by a physician or surgeon. The 
 attorney for the plaintiff strenuously objected on the 
 ground that the Court did not have the legal power or right 
 to grant such an order. How did the Court decide, and if 
 the motion was granted, what was its object? 
 
 486 
 
 11. A, with intent to deceive B and to induce him to 
 purchase 100 shares of stock of the X corporation, falsely 
 and fraudulently represented to B that the title to certain 
 
Bak Examinations and Courses of Study. 167 
 
 lands was in the corporation. B relying upon such repre- 
 sentations purchased of the X corporation 100 shares of its 
 stock, paying therefor $10,000. The shares were not worth 
 more than $5,000, owing to the fact that the company did 
 not own the lands as represented by A. When these facts be- 
 came known to B he brought an action against A to recover 
 the damages he sustained by reason of such false representa- 
 tions, which were conceded to be $5,000. On the trial A 
 alleged and proved by the undisputed evidence that he. A, 
 received no part of the purchase money and derived no 
 benefit whatever from the sale. At the conclusion of the 
 plaintiff's evidence A moved for a non-suit upon the ground 
 that he had no interest in the transaction and hence was not 
 liable to B. What was the decision and why ? 
 
 487 
 
 12. A, who was but twenty years of age, sold to B a 
 carriage horse, which he falsely and fraudulently repre- 
 sented to be sound, intending thereby to deceive and de- 
 fraud B. B relied upon the representations in purchasing 
 the horse, which proved to be unsound and worthless. B 
 did not return or offer to return the horse, nor did he re- 
 scind or disaffirm the sale, but brought an action against 
 A to recover damages for his false and fraudulent repre- 
 sentations in making the sale. A's only defense interposed 
 was infancy. Judgment for whom, and why ? 
 
 488 
 
 13. A died leaving a valid vtIU whereby he bequeathed 
 to his grandson, B, a legacy of $3,000 and directed his 
 executor named therein to pay to B that sum within one year 
 after his, A's, death. A by his said will then devised and 
 bequeathed the remainder of his estate to C and duly consti- 
 tuted and appointed him the sole executor of his will. C 
 qualified and acted as such, accepted the devise under the 
 will and took possession of the property. A's estate con- 
 sisted ohiefl,y of real property, there being only enough 
 personal to discharge and pay his debts and funeral expenses. 
 B demanded of 0, the executor and devisee under A's :will, 
 
168 Bab Examinations and Ooueses of Study. 
 
 the payment of his legacy, which C refused on the ground 
 that it was payable out of the personal property and not 
 from the real estate and as the personal property was in- 
 sufficient to pay it he was not liable. Thereupon B brought 
 an action against C to recover his legacy. Upon the trial 
 the foregoing facts were proved and not denied. Who 
 should have judgment and why ? 
 
 489 
 
 14. A died, leaving a widow and B and C, two sons, his 
 only heirs-at-law and next of kin him surviving. He left a 
 last will and testament, which was duly probated, contain- 
 ing several devises and bequests, among which was a be- 
 quest of $50,000 to his widow, and a bequest of like amount- 
 to his son B. He left nothing to his son C, the will pro- 
 viding as follows : " I hereby disinherit my ungrateful 
 son, C. He, C, is to have or take nothing from my prop- 
 erty in any way or under no circumstances, and I hereby 
 cut him off entirely from any inheritance from my estate." 
 The will contained a bequest of $24,000 to X, which failed, 
 he having died prior to the testator's death, thus lapsing 
 the legacy, which left that amount undisposed of by the 
 will. "Who takes the $24,000, and for what reason? 
 
 490 
 
 15. A, who was never married, died intestate owning 
 a large amount of real property. He left him surviving a 
 brother and a sister, also B, C and D, children of a de- 
 ceased sister, and E, the child of a deceased brother.- How, 
 and in what proportion, will the property descend, and for 
 what reason? 
 
 491 
 
 16. A desired to purchase B's estate at X, and after mak- 
 ing, without B's knowledge, as he believed, a personal in- 
 spection of the same, he offered B $10,000 in cash there- 
 for, which offer B accepted. After the purchase price was 
 paid and the deed was delivered, A endeavored to take 
 possession of the estate which he had viewed, when he was 
 informed, for the first time, that a certain farm lot which 
 
Bae Examinations and Courses of Study. 169 
 
 lie mistakenly believed to be a part of the same, and wlueh 
 was an inducing cause of bis buying, was the property of 
 another, and that the land he had purchased, and which 
 was included in his deed, was worth but $6,000. A there- 
 upon brought an action in equity against B to rescind the 
 deed and to restore the parties to their original positions. 
 The above facts appearing, judgment for whom, and why? 
 
 492 
 
 17. A brought an action in equity, in the usual form, to 
 foreclose a mortgage. The complaint alleged the execution 
 of the bond to which the mortgage was given as collateral 
 and demanded the sale of the mortgaged premises. The 
 mortgagor defended, and in his answer set up facts which 
 tended to establish the invalidity of the mortgage. On the 
 trial the plaintiff failed to establish the mortgage. He then 
 asked permission to prove the loan for which the bond and 
 mortgage were given, and to recover a judgment at law 
 upon the debt. What should be the ruling of the Court, 
 and why? 
 
 493 
 
 18. A being indebted to B conveys to him by a deed, 
 absolute on its face, a parcel of land as security for the 
 debt. Thereafter A tenders to B the whole amount due, 
 with interest, but B claims that he owns the land and that 
 he took the deed in payment of the debt that A owed to 
 him. There is no writing between the parties except the 
 deed which is on record. What are A's rights, and how can 
 he enforce them, if any? 
 
 494 
 
 19. You are called upon to incorporate a stock corpora- 
 tion under the Business Corporations Law. State the re- 
 quirements as to the value of the shares of stock therein, 
 and as to the amount of capital it must have to begin busi- 
 ness with. 
 
 495 
 
 20. A corporation, by resolution of its board of directors, 
 appointed X as its general agent to purchase supplies for 
 its corporate purposes. A by-law of the corporation spe- 
 
170 Bae Examustations and Coueses of Study. 
 
 cifically provided that no agent or employee of the com- 
 pany should have the right or power to contract any debts 
 or to create any obligation imposing any liability on the 
 company unless expressly authorized so to do by a majority 
 of the board of trustees at a meeting of the board. X, as 
 such agent, without such authorization, contracted to pur- 
 chase supplies for the aforesaid corporate purposes from A, 
 who knew that X was such agent, but had no knowledge of 
 the said by-law. The corporation on learning of the trans- 
 action repudiated the contract, and, on being sued for dam- 
 ages for its breach, set up the by-law as a defense thereto. 
 On the facts stated, who should have judgment, and why? 
 
 496 
 
 21. The president of a business corporation paid his in- 
 dividual debt to A in the sum of $1,000 with a check of the 
 corporation. A deposited the check and it was paid in due 
 course. The president at the time was a defaulter to the 
 corporation, and had no authority to use the checks for the 
 purposes aforesaid. A accepted the check in good faith and 
 without knowledge of the conditions. The receiver of the 
 corporation, duly appointed, now demands of A the amount 
 of the check and A consults you as to his liability, if any. 
 What would be your advice, and why? 
 
 497 
 
 22. John, the fourteen-year-old son of X, a farmer, hired 
 out to a neighbor to do farm work at $30 a month. X 
 wanted his boy at home and so told the neighbor within 
 a week after he began to work for him; he also said that 
 if the boy worked he wanted his wages paid to him (the 
 father). The neighbor paid no attention to X and paid the 
 boy his wages for a full year's services. X now sues him 
 to recover the same. Who should have judgment, and why? 
 
 498 
 
 23. A married woman living separate and apart from 
 her husband purchased, as such wife, necessary groceries 
 
Bae Examinations and Cotjeses of Study. 171 
 
 for her own use of the reasonable worth and value of $100. 
 The grocer knew of the separation and charged the account 
 to the husband. The husband refused to pay. In an action 
 brought to recover the value of the necessaries aforesaid 
 the above facts appeared. Judgment for whom, and why? 
 
 499 
 
 24. A statute provided that the State, for the purpose of 
 building a barge canal, could, in the exercise of its right 
 of eminent domain, condemn and take for the public use 
 certain lands and premises, with the right to the State to 
 take immediate possession thereof before condemnation and 
 payment. The statute appropriated sufBcient State moneyj= 
 to compensate the owner as soon as the value of his estate 
 so taken was ascertained in the proceeding. Question 
 arises as to the validity- of that statute under the Constitu- 
 tion. What would be your advice? Give your reasons. 
 
 500 
 
 25. A statute was enacted which regulated the hours of 
 work of journeymen tailors. It was clearly oppressive and 
 in violation of their constitutional rights and privileges. 
 The statute made it the duty of the Commissioner of Labor 
 to enforce its provisions, and he proceeded to do so. X, 
 a wealthy and philanthropic banker, residing in New Y^ork 
 city, knowing their want of cohesion and the lack of funds 
 among the journeymen tailors, for their benefit, brought 
 an action in eqtiity against the Commissioner of Labor to 
 restrain the enforcement of the act. The above facts being 
 conceded, will the action lie? If so, why so; if not, why 
 not? 
 
172 Bab Examinations and Ooueses of Study. 
 
 EXAMINATION PAPER. 
 No. 11. 
 
 FORENOON — FOUR HOTJRS. 
 
 GROUP O^K 
 PLEADING AND PRACTICE AND EVIDENCE. 
 (Copy this group heading.) 
 
 501. 
 
 1. Draw an affidavit of the service of a subpoena in an 
 action pending in the Supreme Court on a witness who lives 
 ten miles from the Court House. 
 
 502. 
 
 2. Your client is charged before a justice of the peace with 
 the crime of petit larceny. You have examined the deposi- 
 tion on which the warrant was issued and learn therefrom 
 that it does not state facts tending to show that a crime 
 had been committed nor reasonable grounds to believe that 
 your client, who was named therein, committed it, if it did 
 so state. Can you obtain a writ restraining the magistrate 
 from hearing the case? If so, what writ; and if not, why 
 not ? Give your reasons for your answer. 
 
 503. 
 
 3. Give a state of facts under which an order of arrest 
 could be issued in an action, where the right to arrest depends 
 upon the nature of the action. 
 
 504. 
 
 4. In an action in the Supreme Court, the plaintiff de- 
 murred to the defense consisting of new matter contained in 
 
Bak Examinations and Coueses of Study. 173 
 
 defendant's answer on the ground that it was insufficient 
 in law upon the face thereof. The defendant had neglected 
 to demur to plaintiff's complaint. On the argument of the 
 demurrer, it was conceded that both pleadings were demur- 
 rable, the complaint for the reason that it did not state facts 
 sufficient to constitute a cause of action. How will the Court 
 then decide the controversy? 
 
 505. 
 
 5. On the trial of an action defendant claimed under 
 the pleadings the affirmative and the right to open the case 
 and to close to the jury. The Court overruled the defend- 
 ant's claim, to vt^hich he excepted and proceeded with the 
 trial. 
 
 He was beaten. The only exception he had in the case 
 was the one above stated. 
 
 Will an appellate court reverse the judgment predicated 
 on the above exception only, provided it is satisfied that it 
 was well taken ? Give the reasons for your answer. 
 
 506. 
 
 6. For what length of time is a judgment of the Supreme 
 Court duly docketed in the County Clerk's office a lien on 
 real property in the county of the judgment debtor ? 
 
 507. 
 
 7. A was indicted for forging the name of B to a promis- 
 sory note and uttering the same. 
 
 On the trial the District Attorney called several qualified 
 witnesses, who testified that, in their opinion, the name signed 
 to the note was not in the handwriting of B. Although B 
 was subpoenaed by the people, and in court, he was not called 
 to disprove the signature. 
 
 At the close of the People's case A's counsel moved the 
 Court to advise the jury to acquit, on the sole ground that 
 B had not testified nor disputed the signature which was 
 necessary in order to convict. What did the Court do, and 
 for what reason? 
 
 508. 
 
 8. A held B's past due promissory note for $1,000, given 
 for money loaned. 
 
174 Bae Examinations and Cotjeses of Study. 
 
 At A's request, B, who was unable to pay cash, made a 
 written bill of sale of his four horses to A, in payment of 
 the note, which he then surrendered to B. A took immedi- 
 ate possession of the horses. 
 
 The following day, C, one of B's creditors, obtained 
 judgment against B, issued execution and levied upon and 
 took possession of the horses. 
 
 A at once sued C in conversion to recover the value of 
 the horses. 
 
 C defends upon the ground that the bill of sale to A was 
 fraudulent and void and given with intent to cheat and de- 
 fraud and other creditors of B. 
 
 On the trial, the defendant offered to prove certain dec- 
 larations of B, made after the bill of sale and possession 
 of the horses were given to A, which tended to show the 
 fraudulent intent of B in the transaction with A. A's coun- 
 sel objects to the evidence as incompetent. How did th© 
 Court rule, and why? 
 
 509. 
 
 9. The probate of A's vnll was contested on the ground 
 that A, at the time of its execution, neither declared it to 
 be his will, nor requested the attesting witnesses to sign 
 as such. 
 
 B, who was a beneficiary under the will, was present with 
 the testator and the two witnesses "when the will was exe- 
 cuted, but he took no part in the conversation which occurred, 
 all that was said and done was between A and the witnesses. 
 He, B, neither spoke, nor was spoken to. 
 
 On the hearing B was called as a witness on behalf of 
 the proponent of the will, and was asked to state what was 
 done and said by A at the time the will was executed. Due 
 and timely objection was made by the contestant. 
 
 How did the Surrogate rule, and for what reasons? 
 
 510. 
 
 10. A had verbally agreed with B that the latter should 
 do the carpenter work upon a certain building which A 
 was about to erect. 
 
 They agreed to put the contract in writing, and, for that 
 
Bab Examinations and Coueses of Study. ITS 
 
 purpose, at A's request, they went to the law office of C, 
 who was A's attorney and legal adviser whenever he needed 
 an attorney's services. A and B stated the terms of the 
 contract to C, who reduced it to writing, and the same was 
 then and there signed by both A and B. A paid C for his 
 services and the party then left the office. 
 
 On the trial of an action thereafter brought by B against 
 A to recover for the work done under the contract, its mean- 
 ing and construction being in dispute, B called C as a wit- 
 ness and asked him to state the conversation between A 
 and B in his presence, at the time he was preparing the 
 written contract. A objects that the conversation is privi- 
 leged and that 0, being his attorney, was debarred from 
 disclosing it. 
 
 How did the Court decide, and for what reason? 
 
 511. 
 
 11. A and B, who were without fault, were injured by 
 a runaway team of C. Both claimed that C's negligence 
 was the cause of their injury, and claimed damages against 
 him. He settled with and paid A his damages without 
 litigation, but refused to pay B, who thereupon sued C, bas- 
 ing his claim on the aforesaid negligence, which C denied. 
 
 On the trial B offered to prove C's settlement with A as 
 an admission of his, C's liability, both claims having arisen 
 out of the same transaction. C objects to the evidence. 
 How should the Court rule, and why? 
 
 512. 
 
 12. A was indicted for the crime of wilfully and felo- 
 niously having and passing counterfeit money upon B on 
 March 10, 190'9. On the trial, the District Attorney offered 
 to show Uhat, on the previous day, A had and passed coun- 
 terfeit money of the same kind and denomination upon C, 
 and also upon D. 
 
 The defendant objects to the evidence as incompetent, 
 and as tending to prove a crime against the defendant other 
 than the one for which he was on trial. How did the Court 
 rule, and why? 
 
176 Bae Examinations and Coueses of Study. 
 
 GROUP TWO. 
 
 SUBSTANTIVE LAW. 
 
 (Begin new page with above heading, y 
 
 513. 
 
 13. A, who had duly conveyed a life interest in a house 
 and lot to his wife, B, conveyed the premises to C, his 
 daughter, subject to B's life interest. C had a husband, 
 D, and two children were born of their marriage. C, who 
 never was in actual possession of the property, died before 
 B, who had the actual possession. After C's death, her hus- 
 band, D, brought an action against B to recover posses- 
 sion of the property. B defends. 
 
 Judgment for whom, and why? On what did D base 
 his claim ? 
 
 514. 
 
 14. A, the owner of certain real property, executed and 
 delivered a deed thereof to B, the grantee named therein, 
 on the oral condition which accompanied the delivery that 
 if A could, within a year, find a purchaser thereof for 
 $5,000 more than B paid him for it, that he, B, would 
 give him. A, the benefit thereof and would reconvey to A 
 so as to enable him to make the sale. 
 
 A has found a purchaser as above and has made due de- 
 mand on B for a reconveyance as agreed, but B refuses. A 
 now consults you as to his rights and remedies against B, 
 if any, under the circumstances stated. What would be your 
 advice, and why? 
 
 515. 
 
 15. A had the record title, and claimed to be the owner 
 in fee of a certain tract of land. At the same time B was 
 in actual possession of the land, claiming under a title ad- 
 verse to that of A. '0, knowing the facts, for a good and 
 valuable consideration, purchased and took a deed of the 
 premises from A, and immediately brought an action of 
 ejectment against B to recover possession. B defends. 
 
 Judgment for whom, and why? 
 
Bae Examinations and Courses of Study. 177 
 
 516. 
 
 16. A and B duly entered into a contract in writing in 
 and by which A employed B as a clerk for one year from 
 January 1, 1907, to January 1, 1908, at an annual salary 
 of $5,000, paya'ble monthly. B worked for A for the year, 
 and on January 1, 1908, nothing being said, continued his 
 work as before until January 31, 1908, when A, on paying 
 him his month's wages, summarily discharged him with- 
 out cause. 
 
 B has been unable to procure work now for six months, 
 and consults you as to his status under his contract with 
 A as above. What would be your advice, and why? 
 
 517. 
 
 17. A made a valid agreement in writing with B, that, 
 on the first day of the following month, he would sell and 
 deliver to B his valuable coach team at the agreed price of 
 one thousand dollars. In reliance upon A's fulfilling his 
 agreement, C had agreed in writing to purchase said team 
 of B and pay for the same fifteen hundred dollars. 
 
 Before the time arrived for A to fulfill his agreement, 
 the stable wherein the horses were kept was struck by light- 
 ning and both horses were killed. 
 
 On the day following the time when A was to have de- 
 livered the horses, and failing so to do, B brought an action 
 against A to recover his prospective profit of five hundred 
 dollars damages for A's breach of his contract. A defends. 
 
 Judgment for whom, and why? 
 
 518. 
 
 18. A and B were co-partners, engaged in the coal busi- 
 ness under the firm name of A & Co. The firm entered 
 into a valid contract with to sell to him one thousand 
 tons of a certain quality and grade of coal, to be delivered 
 two hundred tons monthly thereafter, at an agreed price, 
 and C agreed to pay therefor as delivered. 
 
 After the firm delivered four hundred tons of the coal to 
 C, under the contract, the firm was dissolved, B retiring, 
 12 
 
178 Bab Examinations and Cotjeses of Study. 
 
 whose place was taken by D, and thereafter the business was 
 continued by A and D, as co-partners, under the same firm 
 name, A & Co. Notice of the dissolution of the old firm 
 and the formation of the new one was duly given to C. C 
 immediately notified the new firm that he would not ac- 
 cept any coal shipped by it under the contract. The new 
 firm has proffered to fulfill the contract by shipping the bal- 
 ance of the coal to C, to be of the same grade and quality 
 called for by the contract, but G still refuses to accept it. 
 The firm of A & D consult you as to its rights and remedies 
 in the premises. 
 
 What do you advise, and for what reason ? 
 
 519. 
 
 19. A and B were co-partners. B owed to X a personal 
 debt, and in payment thereof, without the knowledge of A, 
 B turned over to X ten thousand dollars of the assets of the 
 co-partnership. X acted in good faith and had no know- 
 ledge at the time that he was receiving co-partnership prop- 
 erty. 
 
 Six months thereafter the firm failed and a receiver 
 thereof was appointed. The receiver now consults you as 
 to his right, if any, to recover from X the ten thousand dol- 
 lars so paid as aforesaid. "What do you say, and why ? 
 
 520. 
 
 20. A was the holder in due course of a promissory note 
 made by X. He endorsed it in blank and placed it in his 
 safe for security, from which place it was feloniously stolen. 
 Thereafter the note came into the possession of B, who was 
 a holder in due course. When the note became due it was 
 presented for payment and payment thereof refused, of all of 
 which A had due notice. 
 
 Thereafter B sold the note to C for value, who succeeded 
 to the rights of B thereunder. C has sued A on the note, who 
 pleads the above facts as a defense thereto in the hands of 0. 
 Is his defense valid ? If so, why so ; if not, why not ? 
 
Bar Examinations and Courses of Study. 179 
 
 521. 
 
 21. X, the drawer of a check, procured it to be certified 
 and then delivered it to A, the payee therein named, for 
 value. A, for value, endorsed and transferred it to B. Be- 
 fore B, in due course and without delay could present it to 
 the bank for payment, the bank failed. B now seeks to re- 
 cover on the check against X and A. Can he do so ? If so, 
 why so ; if not, why not ? 
 
 522. 
 
 22. A directed his clerk to enter into a written contract 
 for him, and in his name, with X, for the purchase of 1,000 
 barrels of flour at $10 a barrel. The clerk negotiated the 
 sale with X. In the transaction the clerk failed to disclose 
 the name of his principal and executed a written contract 
 under seal in his own name for the flour. X defaulted on 
 the contract. A, now, as the undisclosed principal, seeks to 
 recover from X his damages by reason of the breach of the 
 contract. X consults you as to his liability thereon to A. 
 What would you advise him, and why ? 
 
 523. 
 
 23. A, an agent, entrusted by B with the possession of 
 certain goods for sale, made false and fraudulent represen- 
 tations to C concerning them, by means of which he effected 
 a sale. B was ignorant of the representations and did not 
 authorize them. C was damnified by the sale. What are C's 
 rights in the premises as against B, if any ? State your rea- 
 sons. 
 
 524. 
 
 24. On the certificate of A's guaranty, B is employed as 
 a clerk in a bank. He is employed generally, his contract 
 having no definite time to run. A notifies the bank that he 
 will not continue B's surety any longer and requests that he 
 be relieved as such. The bank refuses. Thereafter B in his 
 guaranteed employment becomes a defaulter. State the rule 
 governing the surety's liability. 
 
180 Bae Examinations and Couesbs of Study. 
 
 525. 
 
 25. A was surety for B on a contract made between the 
 latter and C. B had pledged with C as collateral security 
 for the performance of his contract 1,000 shares of mining 
 stock worth $5,000. B defaulted in the performance of his 
 contract. C did nothing in the premises and made no at- 
 tempt to collect his debt or to proceed against the fund. 
 During the time of the delay, B became insolvent and the 
 mining stock worthless. C now demands that A make good 
 his guaranty. A consults you as to his liability under the 
 circumstances stated. What do you say, and why 2 
 
Bar Examinations and Coiteses of Study. 181 
 
 EXAMINATION PAPER, 
 No. 11. 
 
 AFTERNOON — FOUR HOURS. 
 
 GEOUP TWO — SUBSTANTIVE LAW OOontinued.) 
 
 526. 
 
 1. A policy of fire insurance contained this provision: 
 " Tliis entire policy, unless otherwise provided hy agreement, 
 endorsed hereon or added hereto, shall be void * * * if 
 a building herein described, whether intended for occupancy 
 by owner or tenant, be or become vacant or unoccupied and 
 so remain for ten days," There was no contrary agreement 
 endorsed upon or added to the policy and no claim that such 
 an agreement had been made or that the provision had been 
 waived. The building described in the policy was a tene- 
 ment house of the plaintiff situated in the village of X. 
 Plaintiff lived in the village of Y, twenty miles distant. He 
 had rented the property to a tenant for one year from the 
 first day of May, 1908, and the tenant was in possession 
 when the policy was issued. Thereafter and during the life 
 of the policy, and on June 1, 1908, the tenant, without the 
 knowledge of the owner, vacated the premises and they be- 
 came and were vacant and unoccupied for thirty days there- 
 after before the owner discovered the fact. The owner there- 
 upon immediately let the premises to another tenant, who 
 went into possession on July 1, 1908. Six months there- 
 after, from causes which had no relation to the premises be- 
 ing either vacant or unoccupied at any time, the house was 
 totally destroyed by fire. The insurance company refuses to 
 pay the loss predicated upon the above clause. The owaer 
 consults you. What would be your advice, and why? 
 
182 Bae Examinations and Coxieses of Study. 
 
 527. 
 
 2. A, in good faith, procured a policy of insurance on Lis 
 life in a regular insurance company and made it payable to 
 X as sole beneficiary. X liad absolutely no insurable in- 
 terest in the life of A, who paid all the premiums on the pol- 
 icy. The policy was silent as to changes in the beneficiary. 
 A subsequently substituted his wife as the beneficiary of the 
 policy in the place and stead of X, who knew nothing of the 
 change. When A died, both the widow and X claimed the 
 proceeds of the policy. The insurance company refuses to 
 pay the policy, claiming it to be a wager policy, void at its 
 inception. Can it be compelled to pay ? If so, to whom ; 
 if not, why not ? 
 
 528. 
 
 3. X 'Cold Storage Company received from A, for hire, 100 
 bushels of choice apples, in perfect condition, to keep in cold 
 storage for preservation for the period of six months. At 
 the end of the period, when A went to remove them, it was 
 discovered that the apples, through the negligence of the X 
 Company, had been frozen and were worthless. 
 
 'The warehouse receipt which the X Company gave to, and 
 was accepted by, B, when the apples were received, provided 
 that " perishable goods are received at owner's risk." 
 
 Upon whom does the loss of the apples fall? What was 
 the nature of the transaction ? State your reasons. 
 
 529. 
 
 4. A commission merchant having in his possession for 
 sale certain goods, the property of X, deposited them with Y, 
 a creditor, to secure an antecedent personal debt of $1,000. 
 Y, who believed the agent to be the owner of the property at 
 the time of its receipt, has the goods in his possession and 
 refuses to return them to X on demand. The commission 
 merchant is insolvent. X consults you as to his rights in the 
 premises. What do you advise, and why ? 
 
Bae Examinations and Coueses of Study. 183 
 
 530. 
 
 5. A, a manufacturer of iron wheels, agreed to manufac- 
 ture and deliver to B 10,000 -wheels to be manufactured, of 
 a kind and quality specified, at a fixed price. The contract 
 was in writing, in which there was no warranty. The wheels 
 were delivered to B under circumstances which rendered an 
 inspection of them impracticable, who accepted and paid for 
 them. It subsequently developed that the wheels had a 
 latent defect which was not discernible, caused by the pro- 
 cess of manufacture, and were worthless. B now sues A for 
 his damages arising out of the transaction. Can he recover ? 
 If so, why so ; if not, why not ? 
 
 531. 
 
 6. The X "Oompiany, wholesale dealers, sold to B, a mer- 
 chant, a large bill of millinery goods designed for his spring 
 trade, to be delivered on or before the first day of March 
 following, at an agreed price. The goods were not delivered 
 until the middle of April and were then accepted, without 
 protest by B. 
 
 The X Company's failure to deliver, at the time agreed, 
 seriously damaged B's trade, for which B claims damages. 
 The X 'Company has sued B for the purchase price of the 
 goods. B wants to know whether he has a valid claim for 
 damages, and if so, whether he can counterclaim such dam- 
 ages in the action, or, if he has waived his claim for damages 
 by accepting and using the goods. What do you say, and 
 why? 
 
 532. 
 
 7. On the trial of a criminal action the defendant gave 
 evidence of his good character. The District Attorney asked 
 the Court to charge the jury " that if it was satisfied that the 
 testimony in the case was conclusive and positive as to the 
 prisoner's guilt, that the evidence of his previous good char- 
 acter would be of no avail." Should the Court so charge or 
 refuse? Give your reasons. 
 
184 Bar Examinations and Coueses of Study. 
 
 533. 
 
 8. A was indicted for a misdemeanor. The case was 
 called for trial. A's counsel appeared without his client 
 and asked for a postponement, which was refused. The 
 Court thereupon directed that the trial proceed. The pris- 
 oner's counsel ohjected to a trial being had in the atisence 
 of the defendant. His objection was overruled, to which he 
 duly excepted. A jury was then impaneled, the case tried 
 and submitted to the jury, which found the prisoner guilty. 
 
 Question arises as to the validity of the verdict. What 
 do you say, and why ? 
 
 534. 
 
 9. To an indictment, charging him with murder, the de- 
 fendant, when arraigned, plead " not guilty." On the trial 
 his counsel offered evidence tending to show that the defend- 
 ant was insane at the time of the commission of the alleged 
 offense. The District Attorney objected to the evidence as 
 incompetent under defendant's plea. How did the Court 
 rule, and why ? 
 
 535. 
 
 10. An able-bodied and vigorous lady, in good health, was 
 about to alight from a street car whereon she was a passenger, 
 when the conductor, under no obligation in the discharge of 
 his duties to do so, assumed to assist her, and did so, but in 
 such a negligent maimer by suddenly withdrawing his sup- 
 port, as to cause the lady to fall and become severely in- 
 jured. She was free from fault. The Eailway Company 
 being under no obligation to supply the aid of a servant in 
 assisting the lady to alight, the question has arisen whether 
 or not it is liable to the lady for her injuries so caused by 
 the negligence of the conductor, who was the servant of the 
 company. 
 
 What do you say ? Give your reasons. 
 
 536. 
 
 11. A, who was in occupation as lessee of B's farm, when 
 the lease was a;bout to expire, had a public auction, for the 
 sale of his personal property thereon situated. 
 
Bae Examinations and Coueses op Study. 185 
 
 When the auctioneer put up and offered for sale, to the 
 highest bidder, certain property, B announced, in the pres- 
 ence and hearing of all present, " I forbid the sale of that 
 property, it is mine." The property, in fact, belonged to A, 
 but B honestly thought it was his, and made the declaration 
 without malice and without intention to injure A, but for 
 the purpose of protecting what he honestly thought to be his 
 own rights. Because of B's announcement, however, the 
 property brought only one-half of its value, or what it 
 would have sold for had the announcement not been made, 
 to A's damage of one hundred dollars. 
 
 A wants to know whether or not he has a good cause of 
 action against B. 
 
 What do you say, and for what reason ? 
 
 537. 
 
 12. A and B were passengers on a train of the IST. Y. C. & 
 H. E. K.. Co., running between Albany and New York. A 
 was palpably drunk and boisterously disorderly; he annoyed 
 the passengers generally, refused to be quieted by the con- 
 ductor, and in his presence, without cause, wrongfully as- 
 saulted and beat B during the journey. Question arises as 
 to the liability of the railroad company to B for the wrongful 
 act of A under the circumstances stated. 'State the rule 
 governing the situation. 
 
 538. 
 
 13. A merchant doing business in the city of !N"ew York, 
 in and by his last will, directed his executor therein named 
 to continue his business for three years after his death. At 
 that time his general estate was valued at $100,000, of which 
 $10,000 was invested in the business. The executor con- 
 tinued the business as directed. At the end of the three- 
 year period it was found that the assets of the business had 
 increased from $10,000 to $20,000, and its debts -by $50,000. 
 The business creditors to whom the increased indebtedness 
 is due now consult you as to their right to have recourse 
 against the general assets of the estate for the debts con- 
 tracted hy the executor under the circumstances. What do 
 70U say, and why ? 
 
186 Bar Examinations and Coueses of Study. 
 
 539. 
 
 14. An attorney, as requested by A, went to A's residence 
 and drew his will as directed by A, all in proper form. A 
 was in all respects capable of making Ms last will and testa- 
 ment, and was under no undue influence. 
 
 After the will was drawn A carefully read it and pro- 
 nounced it all right, then properly signed it, remarking to 
 the attorney, " This is my last will and testament." Two 
 servant girls of the house were then sent for and told that 
 they were wanted in A's room to witness his will. On their 
 arrival A said to them, " Girls, I wish you would oblige me 
 by signing that document as witnesses, you will see that I 
 have signed it," pointing to the will then lying on a table. 
 Thereupon the girls properly signed their names under the 
 attestation clause as witnesses, as directed by the attorney, 
 and left the room without anything further being said or 
 done by anybody, while they were in the room. 
 
 A died the same day, and the will was offered for pro- 
 bate. Objection is made on the sole ground that the will 
 was not properly executed. How did the surrogate decide? 
 State your reasons. 
 
 540. 
 
 15. A drew his own will. It was properly executed and 
 entitled to probate, but it named no person as executor. 
 What can be done under the circumstances to carry out the 
 terms of the will ? 
 
 541. 
 
 16. A's time to appeal, from a judgment recovered against 
 him by default in the Supreme Court had duly expired. 
 The sheriff is in possession of A's property and is about to 
 sell it under an execution issued on the judgment. A has 
 ample proof that the judgment was procured by the perjured 
 testimony of witnesses on the inquest. He consults you as 
 to the right of the Court, under the circumstances, to stay 
 the sheriff pending the trial of an action which he wishes 
 you, as his attorney, to commence to set aside the judgment 
 for the causes above stated. What would you advise, and 
 why? 
 
Bae Examinations and Coueses of Study. 187 
 
 542. 
 
 17. A, having two estates, mortgaged the both of them to 
 B in one mortgage. He then mortgages one of them to C. 
 B commences an action to foreclose his mortgage C a party 
 defendant. What can do, under the circumstances, to pro- 
 tect his mortgage? 
 
 543. 
 
 18. A, the general agent of the X Corporation, 'hemg 
 thereunto duly authorized, entered into a written contract 
 for and on behalf of the corporation for the purchase of mer- 
 chandise, which contract ^-ecited that the X Corporation was 
 party of the first part and B was party of the second part. 
 The contract was signed as follows : 
 
 "A, Gen. Agt. for X Corporation," 
 
 "B." 
 
 Question arises as to the validity of the execution of the 
 contract and as to whether the corporation or the agent is 
 liable thereon. What do you say, and why? 
 
 544. 
 
 19. The X Manufacturing Corporation sold a bill of goods 
 to A, for which he was indebted thereto in the sum of $1,000. 
 The corporation sued him therefor. The attorney of A dis- 
 covered that the corporation was not legally formed, and has 
 pleaded it as a defense in A'-s answer to the complaint in the 
 action. What would you say as to the validity of A's de- 
 fense? Give your reasons for your answer. 
 
 545. 
 
 20. A and B were husband and wife living together. 
 They could not agree nor live together in harmony, so they 
 signed a writing in and by which they agreed to live separate 
 and apart thereafter, the wife to receive a weekly allowance 
 sufficient for her support; and they thereupon separated. 
 The husband defaulted in his payments and his wife has 
 sued him on the contract for the amount due to her thereon. 
 
 The husband consults you as to his liability on the con- 
 tract. What do you say, and why ? 
 
188 Bae Examinations and Coukses of Study. 
 
 546. 
 
 21. On December 1, 1908, A and B desired to become man 
 and wife and to be lawfully married without the interven- 
 tion of a clergyman or of a duly authorized magistrate or 
 public officer. Can it be done ? If so, how so ; if not, why 
 not? 
 
 547. 
 
 22. You were retained by X to bring an action in eject- 
 ment against Y. In the course of your employment you are 
 told necessary facts by X concerning his title to the lands 
 in question and to other lands then in his possession, all of 
 which were more or less involved in the action. You con- 
 duct the suit to a successful issue, are paid for your services 
 and discharged. 
 
 Subsequently, when the relation of lawyer and client no 
 longer exists between you and X, A seeks to retain you to 
 bring ejectment against X for certain other lands. The in- 
 formation you obtained in the ejectment action against Y, 
 which is unknown to A, is material to A's cause of action 
 and, if used, will enable you to win for him, otherwise not. 
 Should you use the information so obtained? State your 
 reason for your answer. (Legal Ethics.) 
 
 548. 
 
 23. There is an action pending in the Supreme Court. 
 You are the attorney for the defendant. You meet the plain- 
 tiff at a social gathering and he opens up the subject of the 
 action and then and there seeks to negotiate a compromise. 
 What should you do, under the circumstances, his attorney 
 not being present, and why? (Legal Ethics.) 
 
 549. 
 
 24. The Legislature passed a bill and presented it to the 
 Governor on January 15th. It was overlooked in the Gover- 
 nor's office until January 30th, on which day it was vetoed 
 by the Governor, who at once returned it to the House in 
 which it originated, with his objections, the Legislature still 
 
BaE ExAMIiS'ATIONS AND CoUESES OF StuDY. 189 
 
 being in session and intending so to remain for three months 
 longer. 
 
 Question arises as to the validity of the veto. What do 
 you say, and why ? 
 
 550. 
 
 25. An honorably discharged soldier from the army of 
 the United States in the late Civil War applied to a State 
 officer for an appointment in the civil service of the State. 
 The office was in the competitive class under the civil service 
 statute, but the veteran was not on any civil service list, nor 
 had he been examined as to his merit and fitness. The State 
 officer appointed him. Question arises as to the validity of 
 the appointment. What do you say, and why ? 
 
QUESTIONS ON THE CODE OF CIVIL 
 PROCEDURE. 
 
 !N^OTB. — We have been requested by quite a few to prepare 
 and publi&h, in connection with the questions on Substantive 
 law which we offer, some sort of an aid or guide in the oner- 
 ous task of studying the New York Code of Civil Procedure. 
 The New York practise code is a formidable document, yet 
 so essentially a fact that no bar examination as a test of an 
 applicant's ability to practise law can overlook it nor do 
 other than to insist upon a fair and reasonable knowledge of 
 its requirements. There is no royal road to its mastery. It 
 must be studied and conned and committed to memory, and 
 fortunate is he who can conquer it. Quiz books on the Code 
 are a snare and a delusion, if used as the primary source of 
 information. If the Code itself be studied, and the Quiz, 
 so called, be subsequently consulted to determine the extent 
 of one's knowledge it may be helpful, but there is no way of 
 learning the Code except by downright hard study of th^ 
 book itself, which can be very much aided by practical clerk- 
 ship work in a law office with a good general practice. 
 
 Some Code Quizzers boil a fifty-line section of the Code 
 down to a resume of five words or five lines; others give 
 the entire practice in narrative form with references to the 
 sections of the Code which are germane, and it may be that 
 both of those methods are most excellent. To my mind, 
 however, the Code is a book wherein the words as used and 
 their context and their cross references are of definite and 
 required value, and all necessary to its understanding and 
 that the proper way to study the 'Code is to study it as it is 
 written. We have neither boiled down the sections nor given 
 the practice in narrative form. We believe in pleading ac- 
 cording to the language of the statute and have therefore 
 given some of the essential sections of the Code which we 
 have printed in their actual form, trusting that better re- 
 sults thereby will be obtained by the student. 
 
 [190] 
 
Bak Examinations and Coueses op Study. 191 
 
 We have necessarily omitted much, for the Code contains 
 over three thousand sections and it cannot be properly di- 
 gested or abridged for the purpose of its study. All that any- 
 one can hope to accomplish is to have a fair v?orking knowl- 
 edge of its essentials, for if such are known, a reference to 
 the book itself will point out the details of the procedure and 
 the limitations thereon, if any. The Code contains much 
 that the average practitioner will never be called upon to 
 know or use. 
 
 The hundred direct Code questions which we give here, 
 when studied in conjunction with the sixty-six others herein- 
 before published, and with the Code itself, will be found 
 amply sufficient to give the student a practical knowledge 
 of many of the essentials of pleading and practise and infor- 
 mation as to those parts of the Code which it is necessary 
 for him to study and know. More than that we cannot do. 
 
 551. 
 
 Name the Courts of Kecord in the State of New York. 
 
 552. 
 
 iState the general jurisdiction of the Supreme Court. 
 
 553. 
 
 State the general jurisdiction in civil actions of a County 
 Court. 
 
 554. 
 
 State the power possessed by a County Judge to perform 
 the duties of Justices of the Supreme Court at Chambers. 
 
 555. 
 
 State to what Appellate Court are appeals from judgments 
 rendered by a Justice of the Peace in civil actions taken. 
 
 556. 
 
 State the general jurisdiction of the Surrogate's Court. 
 
 557. 
 
 State the various subdivisions of the Supreme Court. 
 
192 Bae Examinations and Cotteses of Study. 
 
 558. 
 
 What is a special term and state its general jurisdiction ? 
 
 559. 
 
 What is a trial term and state its general jurisdiction ? 
 
 560. 
 
 What is the Appellate Division of the Supreme Court and 
 state its general jurisdiction? 
 
 561. 
 
 State the general jurisdiction of the Court of Appeals in 
 civil actions. 
 
 562. 
 iState the object and intent of the Statute of Limitations. 
 
 563. 
 
 State the limitations in actions to recover real property 
 brought by the people of the Statei of New York. 
 
 , 564. 
 
 In similar actions when maintained by a party other than 
 the people ? 
 
 565. 
 State generally the limitation in an action on a judgment. 
 
 566. 
 
 What actions must be commenced within twenty years 
 after the cause of action has accrued ? 
 
 567. 
 
 Within six years. 
 
 568. 
 
 Within three years. 
 
 669. 
 
 Within two years. 
 
Bae Examinations and Coukses of Study. 193 
 
 570. 
 
 Within one year. 
 
 671. 
 
 On a current account. 
 
 572. 
 
 In actions for penalties. 
 
 573. 
 
 In actions not specifically provided for. 
 
 574. 
 
 How must an acknowledgment or new promise be made 
 to take a case out of the operation of the Statute of Limita- 
 tions ? 
 
 575. 
 
 What are the exceptions as to persons under disability ? 
 
 576. 
 
 When is an action deemed to be commenced to stop the 
 running of the Statute of Limitations? 
 
 577. 
 In what manner does an attempt to commence an action 
 in a Court of Record effect the Statute of Limitations ? 
 
 578. 
 
 State the mode of computing periods of limitations. 
 
 579. 
 
 When and how is a civil action, commenced? 
 
 580. 
 
 Draw a summons in an action in the Supreme Court. 
 
 581. 
 
 Is ill necessary to serve a copy of the complaint with the 
 summons ; consequences of failure ? 
 13 
 
194 Bae Examinations and CotrKSES of Study. 
 
 582. 
 
 State cases where such service must be made. 
 
 583. 
 
 How must defendant's appearance be made ? 
 
 584. 
 State the effect of the voluntary appearance of the de- 
 fendant. 
 
 585. 
 How must personal service of a summons be made upon a 
 natural person ? 
 
 586. 
 How must personal service of a summons be made upon 
 a domestic corporation? 
 
 587. 
 How must personal service of a summons be made upon a 
 foreign corporation? 
 
 588. 
 
 State the cases in which the service of a summons may be 
 directed by order upon a defendant without the State or by 
 publication. 
 
 589. 
 
 Who may be joined as plaintiffs in an action? 
 
 590. 
 
 Who may be joined as defendants in an action? 
 
 591. 
 
 iState generally a necessary step to be taken in all actions 
 where there are infant plaintiffs and defendants. 
 
 592. 
 
 What must a complaint contain ? 
 
 593. 
 
 What causes of action may be joined in the same com- 
 plaint ? 
 
Bae Examinations and Courses of Study. 195 
 
 594. 
 
 When may a defendant demur to a complaint ? 
 
 595.. 
 
 In what cases must the defendant's demurrer specify the 
 grounds of objection? 
 
 596. 
 When may the objection be taken by answer? 
 
 597. 
 
 When is the objection deemed waived? 
 
 598. 
 
 What must an answer contain? 
 
 599. 
 Define a counterclaim. 
 
 600. 
 
 When is a reply a necessary pleading and what must it 
 contain ? 
 
 601. 
 
 In case plaintiff fails to reply or demur to the counter- 
 claim, what may the defendant do? 
 
 602. 
 
 What is the effect if a material allegation of the complaint 
 is not denied. 
 
 603. 
 When must a pleading be verified and when may a verifi- 
 cation be omitted? 
 
 604. 
 State how and by whom an affidavit of verification must 
 be made. 
 
 605. 
 State generally the form of an affidavit of verification. 
 
 608. 
 
 How would you plead an account; also procure a bill of 
 particulars of the claim of your adversary? 
 
196 Bae Examinations and Coueses of Study. 
 
 607. 
 
 If your adversary's pleading be frivolous, how would you 
 dispose of it? 
 
 608. 
 How are sham answers or defenses disposed of? 
 
 609. 
 
 When may a pleading be amended as matter of right ? 
 
 610. 
 
 What is a supplemental pleading and when may it be 
 served ? 
 
 611. 
 
 State the practice in ease a pleading contains irrelevant, 
 redundant or scandalous matter? 
 
 612. 
 
 When may a controversy be submitted for decision without 
 process ? 
 
 613. 
 
 State when a defendant may be arrested in an action when 
 the right to arrest depends on the nature of the action. 
 
 614. 
 
 When may a woman be arrested in an action ? 
 
 615. 
 
 IState when an injunction may be granted in an action. 
 
 616. 
 
 What restrictions are there upon injunctions to restrain 
 State officers ? 
 
 617. 
 
 State in what actions a warrant of attachment may be 
 granted. 
 
 618. 
 What must be shown to procure a warrant of attachment 1 
 
Bae Examinatiokts and Courses of Study. 197i 
 
 619. 
 
 Warrant in action against public officers, etc., for pecula- 
 tion will be issued when ? 
 
 620. 
 
 In what cases m^ay a receiver be appointed ? 
 
 621. 
 
 iWhen and how may a defendant make tender after suit ? 
 
 622. 
 
 When does an action not abate? 
 
 623. 
 
 Define an order. 
 
 624. 
 
 Define a motion. 
 
 625. 
 How much time must be given on a notice of motion for 
 an order ? 
 
 626. 
 What is the time limitation where the attorneys for the 
 respective parties reside or have their offices in the same city 
 or village? 
 
 627. 
 
 In what cases may an order of interpleader be granted ? 
 
 628. 
 
 Define an issue. 
 
 629. 
 
 When does an issue of law and an issue of fact arise ? 
 
 630. 
 
 When may the Court change the place of trial of an 
 action ? 
 
 631. 
 
 State the method by which an action is brought to trial. 
 
198 Eae Examinations and Coueses of Study. 
 
 632. 
 
 How many jurors may a party peremptorily challenge in 
 a civil action? 
 
 633. 
 If a trial by jury be waived how must an action be tried ? 
 
 634. 
 
 How and when is a motion made for a new trial upon the 
 judge's minutes ? 
 
 635. 
 
 In certain actions on contracts how may judgment be 
 taken by default. 
 
 636. 
 
 When is application to court for judgment by default 
 necessary. 
 
 637. 
 
 How may a judgment by confession be entered without 
 action ? 
 
 638. 
 
 How is judgment entered against defendants jointly in- 
 debted when all are not served. 
 
 639. 
 
 When may a judgment be enforced by execution ? 
 
 640. 
 
 !Name the different kinds of execution. 
 
 641. 
 
 Within what time must an appeal be taken to the Court 
 of Appeals ? 
 
 642. 
 
 Is security necessary to perfect the appeal ? 
 
 643. 
 
 Within what time must an appeal be taken to the Ap- 
 pellate Division of the Supreme Court? 
 
Bae Examinations and Courses of Study. 199 
 
 644. 
 
 Is security necessary to perfect tlie appeal ? 
 
 645. 
 
 State the contents of an affidavit to be delivered to the 
 sheriff requiring him to replevy a chattel before commence- 
 ment of action ? 
 
 646. 
 
 Enumerate the State writs. 
 
 647. 
 
 "Who is entitled to prosecute the writ of habeas corpus 
 and the writ of certiorari to inquire into the cause of de^ 
 tention ? 
 
 648. 
 
 !Define a writ of mandamus and state the kinds thereof. 
 
 649. 
 
 State the purposes of writs of prohibition, the kinds of 
 writs of prohibition and when they may be issued. 
 
 650. 
 
 Define a writ of certiorari and state in what cases it may 
 and may not issue. 
 
ANSWERS. 
 
 1. 
 
 ALBAJT? COHN'TY COURT. 
 
 JOHN DOE, Plaintiff. 
 
 against 
 
 RICHAED ROE, Defendant 
 
 The plaintiff complains of the defendant in the ahove-en- 
 titled action, and alleges: 
 
 I. That the above-named defendant is a resident of the 
 county of Albany. 
 
 II. That on the day of , 190. ., at the city of 
 
 Albany, N. Y., the said defendant assaulted and beat the 
 above-named plaintiff to his damage in the sum of $2,000, 
 for which sum he demands judgment against said defendant, 
 with costs. X Y, 
 
 Attorney for Plaintiff, 
 OfBce and Post-office Address, 
 
 Albany, N. Y. 
 Section 340, Code of Civil Procedure. 
 
 Judgment for plaintiff. A wins. Title not in issue. 
 
 " In an action of trespass on real estate the general rule ia 
 that possession thereof by plaintiff is sufficient to maintain 
 the action agarofit the wrongdoer, and that a general denial 
 contained in the answer is not sufficient to put the plaintiff's 
 title in issue." 
 
 Hill V. Water Comrs., 77 Hun, 492, at 
 494, 495. 
 
 [200] 
 
Bab Examinations and Coueses of Study. 2C1 
 
 3. 
 
 Both. Both won; each party had recovered, and was en- 
 titled to costs as against the other. 
 
 Code Civil Procedure, sec. 3234. 
 Browning v. N. Y., L. E. & W. K. R. Co., 
 64 Hun, 513. 
 
 4. 
 
 B only. Judgment could not be rendered against C for the 
 reason that no such judgment was prayed for in the com- 
 plaint. 
 
 Bradley v. Shafer, 64 Hun, 428. 
 
 5. 
 
 (1) Draw summons and complaint and have latter veri- 
 fied. 
 
 (2) Pile notice of pendency of action in clerk's oflBce of 
 county where the mortgaged property is situated. (Code, 
 sec. 1631.) 
 
 (3) File complaint in clerk's office of county where venue 
 is laid. 
 
 (4) Serve summons and complaint on defendants. 
 
 (5) When time to answer has expired, none of the de- 
 fendants appearing or ansAvering or being infants or ab- 
 sentees, apply to Special Term upon an affidavit of regularitv 
 for an order of reference to compute the amount due to the 
 plaintiff, and on such report apply to the court for judgment 
 of foreclosure and sale. 
 
 S\ipreme Court Eules 60, 61. 
 
 By procuring a writ of habeas corpus to bring up a person 
 to testify. 
 
 Code Civil Procedure sec. 1991; sees. 
 
 2008 to 2014. 
 Vide 183 E". Y. 4Y5. 
 
 7. 
 
 A's contention is correct. 
 
 B had originally a right of way of necessity over the lands 
 
202 Bab Examinations and Couesbs of Studt. 
 
 of A. It was not, however, a perpetual right of way ; it con- 
 tinued only so long as the necessity existed, and when he 
 obtained access to the highway across his own lands his right 
 over A's land ceased. B must now cross his own land. 
 
 Palmer v. Palmer, 150 K T. 146, 147. 
 
 8. 
 
 That which was annexed to the land was real property and 
 went to B, viz., the thirty acres of uncut hay and the posts 
 distributed along the fences ; the remainder, to wit : the fifty 
 cords of wood, corded in the woods, and the twenty acres of 
 hay which had been cut, being personal property (not an- 
 nexed to the land) belonged to A. 
 
 Matter of Chamberlain, 140 IST. Y. 390. 
 
 Bank V. Crary, 1 Barb. 542. 
 
 Warren v. Leland, 2 Barb. 619. 
 
 Bradner v. Faulkner, 34 K Y. 347. 
 
 8 Am. & Eng. Encyc of Law (2d ed,), 
 p. 302. 
 
 Stall V. Wilbur, 77 K Y. 158. 
 
 9. 
 
 A and his wife C did not become tenants by the entireties 
 under the circumstances. 
 
 Gerard on Titles to Beal Estate (5th ed.), 
 
 pp. 81, 322. 
 Bertles v. ISTunan, 92 N. Y. 152. 
 Zorntlein v. Bram, 100 K Y. 15. 
 When A died, C, his wife, owned her own half; the child 
 owned the other half subject to its mother's dower. 
 
 Sec. 190, Eeal Property Law (chap. 5'2, 
 
 Laws 190i9). 
 Decedent Estate Law (Laws 1909, chap. 
 18), sec. 81. 
 
 10. 
 
 That the debt was barred by the six years' statute of limita- 
 tions (Code Civil Procedure, sec. 382), and was not revived 
 by the oral declaration and promise to pay (Id., sec. 395). 
 
Bak EiAMiNATiOKa A^'!> rorjEsES OF Study, 2d3 
 
 11. 
 
 A has no remedy. A promise by one party to do that which 
 he is already under a legal obligation to perform is insufficient 
 as a consideration to support a contract 
 
 Carpenter v. Taylor, 164 N. Y. 117. 
 
 12. 
 
 A liable for $40,000 only. This being a limited partner- 
 ship under the statute (chap. 44, Laws 1909), A, the special 
 partner, is not liable for the debts of the partnership beyond 
 the fund contributed by him to the capital of the partnership, 
 to wit, $40,000. B, the general partner, is liable as such for 
 the entire debt, viz., $100,000 (Id., sees. 4, 6, 7, 36). 
 
 13. 
 
 B, the survivor had the legal title to the assets; he held 
 
 them as the legal owner, and not as trustee, except that in 
 
 equity he would be regarded to some extent as a trustee ; his 
 
 duty was to pay the debts and dispose of the assets of the 
 
 partnership for the benefit of himself and the estate of the 
 
 deceased partner. _ 
 
 ^ Russell V. McCall, 141 K Y. 447. 
 
 Kastner v. Kastner, 53 App. Div. 293. 
 
 14. 
 
 Judgment for A. The instrument is not a promissory note, 
 it not being certain that John Doe will ever become twenty- 
 one years old ; hence A's neglect to present the same for pay- 
 ment, its nonprotest and failure to give him notice did not 
 discharge Hoe, the maker. 
 
 Eice V. Rice, 43 App. Div. 458. 
 
 16. 
 
 Judgment for C for $1,000. While there was a material 
 alteration, was a holder in due course and not a party to 
 the alteration ; he may enforce payment thereof according to 
 
 its original tenor. 
 
 Negotiable Instruments Law (chap. 43, 
 
 Laws 1909), sees. 205, 206. 
 Eaton & Gilbert on Com. Paper, pp. 566, 
 561, 678; vide, 194 JST. Y. 461. 
 
204: Bab Examinations and Coubses of Stitdt. 
 
 16. 
 
 X has no claim against the wife. " The marital relation 
 creates, in itself, no presumption that the husband waa agent 
 for his wife, and proof of his appointment as such, or of her 
 ratification, is necessary to bind her on contracts made by him 
 in regard to repairing her real estate." 
 
 Aarons v. Klein, 29 Misc. 639. 
 
 17. 
 
 X, the agent, is personally liable. 
 
 An agent is personally liable upon a contract made for a 
 principal not named by him, although he states to the con- 
 tractor that he is not the owner of the premises where the 
 work is to be done, but is merely the agent for the owner. 
 Carpenter had option to sue either. 
 
 Nichols V. Weil, 30 Misc. 441. 
 
 Y was not called upon to inquire, it was X's duty to dis- 
 close his principal. 
 
 "A person, even though making an agreement for another, 
 makes himself personally liable thereon if he contracts in 
 his own name, without disclosing his principal, although the 
 other party to the contract may suppose that he is acting a* 
 
 ■^®°*' DeEemer v. Brown, 165 K Y. 419. 
 
 Y was entitled to actual knowledge of the name of X's 
 principal. ^^^^ ^_ Xn&m 71 K Y. 348. 
 
 18. 
 
 A, the surety, is not discharged. 
 
 " Mere indulgence by a creditor of the principal debtor 
 will not discharge the surety. There must be an agreement 
 for an extension made without the consent of the surety, upon 
 a valid consideration, which ties the hands of the creditor and 
 precludes him meanwhile from proceeding to collect the debt 
 against the principal, thereby changing the position of the 
 surety." None of those elements exist in the problem given. 
 Fifth National Bank v. Woolsey, 21 
 Misc. 761, T62. 
 
Bab Examinations and Coueses of Studt. 205 
 
 19. 
 
 B cannot recover. C's obligation as surety was strictissimi 
 juris, and he is discharged by any alteration of the contract to 
 which his guaranty applied, whether material or not, and the 
 courts will not inquire whether it is or is not to his injury. 
 Page V. Krekey, 137 N. Y. 314. 
 Tradesmans' National Bank v. National 
 Surety Co., 169 N. Y. 567. 
 
 20. 
 
 A can recover. He has an insurable interest in B's build- 
 ing. "A legal or equitable title is not necessary to give an 
 insurable interest in property ; if one has a right which may 
 be enforced against the property, and which is so connected 
 with it that injury thereto will necessarily result in a loss to 
 him, he has an insurable interest." 
 
 Rohrbach v. Germania Fire Ins. Co., 62 
 
 N. Y. 47. 
 Eiggs V. C. M. Ins. Co., 125 N. Y. 14. 
 
 21. 
 Yes. A can recover. 
 
 " Where a creditor j)rocures an insurance upon the life of 
 his debtor, his insurable interest continues, although the stat- 
 ute of limitations would have barred his action, if pleaded, 
 before the debtor's death. A contract for life insurance is not 
 one for indemnity merely, and if the insured had an interest 
 in the duration of the life when he took the policy, he may 
 recover, though that interest has ceased." 
 
 Rawls V. Am. Mut. Life Ins. Co., 27 
 
 N. Y. 282. 
 Richards on Insurance, sec. 27. 
 
 22. 
 
 No ; owner cannot recover. The picture perished without 
 any fault of the hirer so that redelivery became impossible; 
 the Art Association is excused. 
 
 Young V. Leary, 135 N. Y. 576. 
 
206 Bae Examinations and Coueses of Study. 
 
 23 
 
 The attachment should he vacated as to the horse-feed. 
 The transaction was a bailment, not a sale, and title thereto 
 was in the farmer. 
 
 Sattler v. Hallock, 160 W. Y. 291. 
 24 
 Yes. The warranty being express, survived acceptance. 
 Pairbanks Canning Co. v. Metzger, 118 
 
 N. Y. 260. 
 Hooper v. Story, 155 K Y. 171. 
 Zabriskie v. C.V. E. E. Co., 131 N. Y. 72. 
 The measure of damages would be the difference between 
 the value of the goods if they had corresponded with the 
 warranty and their actual value. 
 
 Isaacs V. Wanamaker, 189 IST. Y. 122. 
 Hooper v. Story, 155 K Y. 171, and 
 
 cases cited. 
 Miller v. Patch Mfg. Co., 101 App. 
 Div. 24. 
 "Vendee is also entitled to the benefit of his bargain in 
 obtaining the goods at a price below their real value. 
 " Gains prevented as well as losses sustained are proper 
 elements of damage." 
 
 Beeman v. Banta, 118 IST. Y. 538. 
 Bruce V. Piss et al., 47 App. Div. 273, 
 and cases cited. 
 25 
 The action will be in fraud. The damages will be the 
 value of the sheep which died and the diminished value of 
 the sheep infected by the disease which did not die. 
 
 Jeffrey v. Bigelow, 13 Wend. 518. 
 26 
 The Court should exclude the evidence. 
 The declarations of the motorman one hour after the 
 accident, with respect to the cause and circumstances of the 
 accident, were not binding upon the defendant, and are in- 
 admissible against it, where they do not tend to contradict 
 or impeach the motorman in anything to which he testifieil 
 as a witness for the defendant^ 
 
 Kay V. Met. St. Ey. Co., 163 N. Y. 447. 
 
Bab Examinations and Codeses of Study. 207 
 
 27. 
 
 The judgment should be reversed. 
 
 The negligence of the defendant in other cases did not 
 justify a recovery by the plaintiff ; the evidence was clearly 
 improper. 
 
 Lichtenstein v. Jarvis, 31 App. Div. 36, 
 37. 
 
 28. 
 
 Yea, the exception was well taken. 
 
 A witness can only be impeached by evidence of general 
 character; evidence of particular reports or of specific of- 
 fenses is inadmissible except as brought out on cross-examina- 
 tion, as showing foundation of bad character. 
 
 Abbott's Trial Evidence (1st ed.), p. 674. 
 
 In this case the witness denied the theft ; it being collateral 
 matter not involved in the issue, the party who called it out 
 was bound by it and could not contradict it. 
 
 Vide cases cited. Vol. 13, Abb. Oyc. Dig., 
 p. 938, par. 4; also question 33 infra and 
 answer. 
 
 Yes. A was a witness to the will. 
 
 " The opinion of a witness, not an expert, as to the mental 
 condition of another, is not competent, save in the case of a 
 subscribing witness to a will, although based on what the 
 witness himself saw or heard." 
 
 Holcomb V. Holcomb, 95 IST. Y. 316. 
 Clapp V. EuUerton, 34 N. Y. 190. 
 
 30. 
 Yes. 
 
 Upon the trial of an action for a breach of promise of 
 marriage, evidence of defendant's general reputation, as to 
 wealth, is competent upon the question of damages. 
 
 Chellis V. Chapman, 125 IST. Y. 214. 
 
 Kniffen v. McConnell, 30 TiT. Y. 285. 
 
208 Bae .Examinations and Cotjeses of Study. 
 
 31. 
 
 Guilty of the crime of an attempt to commit arson. A 
 ■with felonious intent to commit the crime of arson did an act 
 tending to effect its commission; his failure to complete it 
 made him guilty of an attempt. 
 
 Penal Law (Laws 1909, chap. 88), sees. 
 
 223, 583. 
 5 Park. Grim. Kep. 102. 
 James McDermott v. People, 5 Park. 
 Grim. Eep. 102. 
 
 32. 
 
 Not guilty. A's marriage to C while B was living was 
 bigamous and void. When B died, he had no lawful wife 
 living, hence his marriage to D was valid. 
 
 Penal Law (Laws 1909, chap. 88), sec. 
 340. 
 
 N'o. A witness can only be impeached by evidence of 
 general character; evidence of specific offenses is inadmis- 
 sible. 
 
 Abbott's Trial Evidence (1st ed.), p. 674, 
 
 Doe was indicted for assault upon A; it was not material 
 to the issue that at another time and place he feloniously 
 broke into the house of B, so that the prosecution was not 
 only bound by the answer, but the evidence was also in- 
 admissible for the reason that it tended to prove the com- 
 mission of another crime, which had no possible i-slevancy 
 
 to the issue. 
 
 People V. Van Tassell, 1.56 iJ. Y. 561. 
 
 People V. Molineaux, 168 :S'. Y. 343. 
 
 People V. Place, 157 IST. Y. 586, 598. 
 
 Vide question 28 and answer, supra. 
 
 34. 
 Yes, not on the note, however, but in fraud for the fraudu* 
 lent concealment of a material fact. 
 
 Brown v. Montgomery, 20 N. Y. 287. 
 Rothmiller v. Stein, 143 K Y. 593. 
 
Bab Examinations and Coueses of Study. 209 
 
 35. 
 
 Judgment for the master. 
 
 " In order to charge a master with liability to one servant, 
 for the acts of an alleged incompetent fellow servant, the 
 proper course is to show specific acts of incompetency on the 
 part of the servant, and that the master knew, or should have 
 known, of such incompetency." The problem given does not 
 show the latter fact. 
 
 McCarthy v. Eitch, 59 App. Div. 145. 
 
 36. 
 
 A can sue B in conversion or he can waive the tort and 
 sue in contract for the value of the rye. 
 
 " "Where one of several tenants in common of a farm (all 
 being of full age) occupies it with the acquiescence of his 
 cotenants, and, in the usual course of husbandry, takes the 
 annual products thereof, without having entered into any 
 contract in respect to its use and without having ousted, or 
 denied the right of, any of his cotenants, he is not liable to 
 account to them for its use, or for the products so taken." 
 
 Le Baron v. Babcock, 122 K Y. 153. 
 Felts v. Collins, 46 App. Div. 334. 
 Ferris v. Nelson, 60 App. Div. 430. 
 Terry v. Hunger, 121 N. T. 161. 
 
 37. 
 
 The will was properly executed. 
 
 (a) It was not necessary for the testator to sign in the 
 presence of both the witnesses at the same time, nor for the 
 witnesses to be both present when the testator published and 
 acknowledged the same. 
 
 Willis V. Mott, 36 K Y. 486. 
 Baskin v. Baskin, 36 K Y. 416. 
 Hoysradt v. Kingman, 22 N. Y. 372. 
 14 
 
210 Bab Examinations and Couesbs of Stui>y. 
 
 (&) An attestation claiise is not necessary. 
 
 Eedfield's Law & Practice, Surrogates' 
 
 Courts (6t]i ed.), pp. 157, 158, sec, 
 
 203. 
 Matter of Crane, 68 App. Div. 355. 
 Matter of Cornell, 89 App. Div. 413. 
 
 (c) It is not necessary for the witnesses to give their re- 
 spective places of residence. 
 
 Id., pp. 154^155, sec. 200. 
 
 Dodge V. Cornelius, 168 K Y. 244. 
 
 Matter of PhilKps, 98 N. Y. 267. 
 
 38. 
 
 The estate, being all personal, goes to the husband by virtue 
 of his marital right, the wife dying intestate and without 
 descendants. 
 
 Matter of Thomas, 33 Misc. 730. 
 100 ]Sr. Y. 333; 114 A. D. 407; 159 KY. 
 133. 
 
 S9. 
 
 Valid, except that the surplus income accumulated during 
 John's infancy belongs to him when he arrives at the age of 
 twenty-one years and should be paid to him then. 
 
 Prayv. Hagaman, 92 IST. Y. 508. 
 
 Hascall v. King, 162 K Y. 138. 
 
 40. 
 
 The Court will decree that the owner reimburse A, the 
 occupant, for his expenditures. 
 
 He who seeks equity must do equity. 
 
 Thomas v. Evans, 105 K Y. 601. 
 
 41. 
 
 Yes. He has an action in equity to enforce a resulting 
 trust and is entitled to the proceeds of the policy to the amount 
 of his debt. 
 
 Hobnes v. Gilman, 138 K Y. 369. 
 Matter of Hicks, 170 N. Y. 198, 200, 
 201, 
 
Bab Examinations and Coubsbs of Stttdt. 211 
 
 43. 
 
 A loses his norse. He is estopped from asserting his title. 
 
 "An estoppel may arise from silence, as well as words ; but 
 this is only where there is a duty to speak, and the party 
 upon whom the duty rests has an opportunity to speak, and, 
 knowing the circumstances requiring him to speak, keeps 
 silent; or, in other words, where his silence amounts to a 
 fraud, actual or constructive." 
 
 Yol. XI, Encyc. of Law (2d ed.), pp. 427, 
 428, 429.' 
 
 43. 
 
 A •win*. 
 
 Bank cannot recover. A is the ahsolute owner of the stock ; 
 the contract is ultra vires and purely executory. 
 
 Nassau Bank v. Jones, 95 IT. Y. 115. 
 
 44. 
 
 The consolidated corporation is liable for the debts of each 
 of the constituent companies, but the equitable lien which the 
 creditors of the X Bailroad Company has on the property of 
 their solvent debtor, preserves its validity and priority as 
 against the other creditors. 
 
 Prouty V. Lake S. & Mich. S. K. Co., 52 
 
 ISr. Y. 363. 
 Boardman v. L. S. & M. S. E. E. Co., 84 
 
 K Y. 181. 
 Copp V. 0. C. & L Co., 29 Misc. 110. 
 
 45. 
 
 No. A holds the real estate, having purchased in good 
 faith and for value. 
 
 Cole V. M. L Co., 133 N. Y. 168. 
 
 46. 
 
 A can be compelled to support his wife, his minor son, 
 «nd his paternal and maternal grandparents, by the Overseer 
 
212 Bae Examinations and Coueses of Study. 
 
 or Superintendefat of the Poor or Commissioner of 
 Charities. 
 
 Bx parte Hunt, 5 Cow. 284. 
 
 Code Orim. Pro., sees. 914-928. 
 
 47. 
 
 The marriage is valid and the child is legitimate. The 
 second marriage is voidable, but only, void from the time its 
 nullity is declared by a court of competent jurisdiction. Bring 
 an action to annul the second marriage. 
 
 Domestic Relations Law (chap. 19, Laws 
 
 1909), sees. 6, 7. 
 Code Civil Procedure, sees. 1742-1755. 
 Code Crim. Procedure, sec. 838. 
 Price V, Price, 124 IS. Y. 589. 
 
 48. 
 
 ITo, A cannot recover; he should have obtained an order 
 of the Court authorizing the expenditure. 
 
 Hassard v. Eowe, 11 Barb. 22. 
 
 49. 
 
 The lease is valid. The provision of the Constitution of 
 the State of New York (art. I, sec. 13) prohibiting the 
 leasing or granting of agricultural lands for a longer period 
 than twelve years, is not violated by a lease for mining pur- 
 poses such as is set forth in the question. 
 
 Massachusetts iN'at. Bank v. Shinn, 163 
 K Y. 360. 
 
 80. 
 
 The act is unconstitutional and void. 
 
 (o) It is a private or local biU and embraces more than 
 one subject Const, of N. Y., art. Ill, sec. 16. 
 
 (&) It is a private or local biU discontinuing a highway. 
 Id., art. Ill, sec. 18. 
 
 (c) It is a bill allowing a private claim or accouont against 
 the Rtatp. Td., art. Ill, sec. 19. 
 
Bae Examinations and Coueses of Stxjixt. 213 
 
 ». 
 
 SUPEEME COURT, NEW YOKE COUNTT. 
 
 JOHN DOE, Plaintiff, 
 
 against 
 RICHARD ROE, Defendant. 
 
 The plaintiff complains of the above-named defendant and 
 alleges : 
 
 That heretofore the defendant made his promissory note 
 
 in writing, dated on the .... day of , 190. ., at New 
 
 York city, and thereby promised to pay to the plaintiff or his 
 order one hundred dollars, three months after said date. 
 That no part of said note has been paid. 
 
 Wherefore plaintiff demands judgment against said de- 
 fendant for one hundred dollars with interest thereon from 
 
 the .... day of , besides the costs of this action. 
 
 X Y Z, 
 Plaintiff's Attorney. 
 OflBce and Post-office Address, 
 
 , Albany, N. Y. 
 
 52. 
 
 " The affidavit, to be delivered to the Sheriff, as prescribed 
 in the last section, must particularly describe the chattel to 
 be replevied, and must contain the following allegations : 
 
 1. That the plaintiff is the owner of the chattel, or is en- 
 titled to the possession thereof, by virtue of a special property 
 therein ; the facts with respect to which must be set forth. 
 
 2. That it is wrongfully detained by the defendant. 
 
 3. The alleged cause of the detention thereof, according to 
 the best knowledge, information and belief of the person 
 making the affidavit. 
 
 4. That it has not been taken by virtue of a warrant, 
 against the plaintiff, for the collection of a tax, assessment 
 or fine, issued in pursuance of a statute of the State, or of 
 the United States ; or, if it has been taken under color of such 
 
214 Bae Examinations and Couesbs of Study. 
 
 a warrant, either that the taking was unlawful, by reason of 
 defects in the process, or other causes specified, or that the 
 detention is unlawful, by reason of facts specified, which have 
 subsequently occurred. 
 
 5. That it has not been seized by virtue of an execution 
 or warrant of attachment, against the property of the plaintiff 
 or of any person from or through whom the plaintiff has 
 derived title to the chattel, since the seiznire thereof ; or, if it 
 has been so seized, that it was exempt from the seizure, by 
 reason of facts specified, or that its detention is unlawful, by 
 reason of facts specified which have subsequently occurred." 
 Sec. 1695, Code of Civil Procedure. 
 
 "Where the affidavit describes two or more chattels of 
 the same kind, it must state the number thereof, and where 
 it describes a chattel in bulk, it must state the weight, meas- 
 urement, or other quantity. Where it describes two or 
 more chattels to be replevied, it may, at the election of the 
 plaintiff, state the aggregate value of all; or, separately, the 
 value of any chattel or of any class of chattels, and the 
 aggregate value of the remainder, if any. Where it states 
 separately the value of one or more chattels or classes of 
 chattels, the defendant may require, as prescribed in the 
 following provisions of this article, the return of any or 
 all of the chattels or classes of chattels, the value of which 
 is thus stated, or of the portion thereof which has been re- 
 plevied. If he procures such a return, the remainder must 
 be delivered to the plaintiff, except as is otherwise prescribed 
 in this article." 
 
 Sec. 1697, Code Civ. Proc 
 
 53. 
 
 The Court denied defendant's motion. 
 
 " If the defendant, in an action for breach of a contract 
 within the statute (of frauds), desires to avail himself of the 
 benefit of the statute, he must plead it. If the defect appears 
 on the face of the complaint, the defense must be interposed 
 by demurrer (Code Civ. Proc, sec. 488) ; if it does not so 
 appear, it must be presented by answer. If the objection is 
 
Bab Examinations and Coueses of Study. 215' 
 
 not taken either way, defendant will be deemed to have 
 waived it." ^^^^ ^ Powell, 139 N. Y. 379. 
 
 C. R Pannele Co. v. Haas, ITI N. Y. 
 583. 
 
 iBarrett v, Johnson, 77 Hun, 527. 
 
 54. 
 
 By an order requiring him to produce or by a subpoena 
 duces tecum. The subpoena must be served at least five days 
 before the day when he is required to attend. 
 Code Civ. Proc, sec. 867. 
 
 55. 
 
 The appellate tribunal should reverse the decision of the 
 trial court. The answer having admitted plaintiff's cause of 
 action, he was not required to give any evidence to be entitled 
 to a verdict, and hence he did not have the right to begin by 
 opening the .case to the jury and adducing his evidence first. 
 The right to open and close is a substantial one, and it is erroi 
 to refuse it to the one entitled, who, in the case given, was the 
 
 defendant. y^^ Abbott's Trial Brief (Civil Jury 
 
 Trials), pp. 30, 38, and cases cited. 
 
 Plaintiff is entitled to issue an execution, of course, at any 
 time within five years after the entry of judgment, and if he 
 issued one during that time he can issue another, of course, in 
 1903, provided the ones already issued have been returned 
 wholly or partly unsatisfied or unexecuted. If he did not 
 within the five years from the entry of judgment issue an 
 execution, as aforesaid, he cannot issue an execution without 
 an order of the Court granting leave to issue the same. 
 
 Code Civ. Proc, sees. 1375, 1377, 1378. 
 
 57. 
 
 Advise your client to put his mortgage on record and then 
 start an action in equity to have it declared a lien prior to 
 
216 Bae Examinations and Coueses or Study. 
 
 A's deed. Tlie latter, because of his having purcliased for an 
 — ____ajiteeedent debt, is not a purchaser for a valuable considera- 
 tion, as required by the Eeal Property Law. 
 
 Real Property Law (chap. 52, Laws 
 
 1909), sees. 290, 291. 
 Vide numerous cases cited, Logan's Real 
 
 Property Law, p. 87. 
 De Lancey v. Stearns, 66 K Y. 157. 
 Howells V. Hettrick, 160 IST. Y. 308. 
 
 58. 
 
 Advise the tenant that the engine is a trade fixture, and 
 that as he can remove it without injury to the premises, and 
 intends to replace the old engine where he found it, he is at 
 liberty to do so, within his term, notwithstanding the land- 
 lord's objection. It is his property and not the landlord's. 
 Andrews v. D. B. Co., 132 IST. Y. 353. 
 
 59. 
 
 The inheritance shall descend to them in equal parts, each 
 one-quarter, for they are all of equal degree of consanguinity 
 to their grandfather from whom it came. | 
 
 Real Property Law (chap. 52, Laws 
 
 1909), see. 282. 
 Decedent Estate Law (chap. 18, Laws 
 1909), sees. 81, 82. 
 
 60. 
 
 A. wins. B volunteered and paid the debt without A's 
 privity or consent; the moral obligation of A to reimburse 
 him was not a sufficient consideration to uphold his promise 
 to do so. 
 
 Vide, generally, 9 Cyc. Law & Proc, pp. 
 
 316, 356. 
 Bartholomew v. Jackson, 20 Johns. 28. 
 
 61. 
 
 Y is not liable. The contract is void as a wagering con- 
 
 tract. 
 
 Kingsbury v.;Kirwan, 77 IST. Y. 612. 
 Embery v. Jemison, 131 U. S. 336. 
 
Bab ExiMiwATioKS and Coueses oe- Studt. 217 
 
 62. 
 
 A cannot recover. 
 
 He knew that X was a miller and he sold and shipped to 
 him the lumber individually and took his note therefor. He 
 took partnership security from one of the partners for what 
 he knew at the time to be the particular debt of the partner 
 who gave it, and he cannot recover thereon, especially where 
 the transaction (the buying of lumber) is not within the 
 scope of the milling business to which the partnership was 
 specially limited. 
 
 Livingston v. Koosevelt, 4 Johns. 251, 
 252. 
 
 63. 
 
 OB wins. 
 
 "After the dissolution of a partnership an acknowledgment 
 and promise to pay, made by one of the partners, will not 
 revive a debt against the firm which is barred by the statute 
 of limitations." 
 
 Van Keuren v. Parmelee, 2 K Y. 523. 
 Murdock v. "Waterman, 145 N. Y. 63. 
 Conn. Trust Co. v. Wead, 33 Misc. 376. 
 
 64. 
 
 Yes. E has a cause of action against D. D, by his in- 
 dorsement, warranted that the note was genuine and in all 
 respects what it purported to be. The use of the words 
 " without recourse " simply qualified his indorsement as to 
 his financial responsibility but did not relieve him of his 
 warranty as to the validity of the prior indorsements. 
 
 ISTego. Inst. Law (chap 43, Laws 1909, 
 
 sec. 115. 
 Eaton & Gilbert on Com. Paper, sec. 85, 
 
 p. 418. 
 Daniel on ITego. Inst. (5th ed.), sec. 67,5. 
 
 65. 
 
 C can recover against A. 
 
 He derived his title through a holder in due course, and 
 
218 Bar Examinations and Cotieses of Study. 
 
 instrument, he has all the rights of such former holder in 
 not being a party to any. fraud or illegality affecting the 
 respect of all parties prior to the latter. 
 
 IS'ego. Inst. Law chap. 43, Laws 1909, 
 
 sec. 97. 
 Eaton & Gilbert on Com. Paper, pp. 387, 
 
 388 (p. 346, 2d ed. n. 73). 
 Daniel on Nego. Inst. (5th ed.), sees. 
 
 803, 805. 
 4 Am. & Eng. Encyc. of Law (2d ed.), p. 
 30'8. 
 
 86. 
 
 Yes, can recover. 
 
 A was an undisclosed principal, and had the right to 
 resort to him when he learned the facts. 
 
 1 Am. & Eng. Encyc of Law (2d ed.), 
 p. 1139. 
 
 67. 
 
 Yes. 'A can recover. B was acting within the scope of 
 his authority and in the business of his principal when he 
 gave to A the false information on which he relied to his 
 damage. 
 
 CSty N"at. Bank of Birmingham T. Dun, 
 61 Eed. Eep. 160. 
 
 68. 
 
 Judgment for 0. 
 
 A ia estopped from denying B's capacity to contract. 
 
 Penfield v. Goodrich, 10 Hun, 43. 
 
 Kimball v. Newell, 1 Hill, 116. 
 
 Both have good defenses. 
 
 /The release of A discharged both B and D. 
 
 Eobertson v. Smith, 18 Johns. 459. 
 Zing V. Baldwin, 2 Johns. Ch. 559. 
 173 K T. 465, 466. 
 
 Debtor and Creditor Law (chap. 17, 
 Laws 1909), sees. 230, 231. 
 
£ab Ezamiitatioits and Coubses of Study. 219 
 
 70. 
 
 To the first wife. Her interest was fixed at the time the 
 policy was issued. 
 
 Steinback v. Diepenbrock, 158 N. Y. 30. 
 Conn. Mut. v. Schaefer, 94 U. S. 457. 
 Goldsmith v. Union M. L., 15 Abb, N. 0. 
 409. 
 
 71. 
 
 Judgment for B. 
 
 The policy was not void for breach of condition, the 
 knowledge of the agent was the knowledge of the defendant 
 insurance company. 
 
 Van Schoiek v. Niagara F. Ins. Co., 6S 
 
 N. Y. 434. 
 Contra (in TJ. S. courts), Northern Asa. 
 Co. V. Grand View Building Assoc, 
 183 U. S. 308. 
 
 The hostler was negligent and caused the injury; he is 
 liable, so is the landlord- 
 
 B is also responsible, he made the hostler his agent oi 
 servant, and is liable for his negligence under the circum- 
 stances, g-^jj ^^ Warner, 60 Barb. 198. 
 
 73. 
 
 A and B were bailor and bailee, and the transaction was a 
 bailment. 
 
 When B, the boarding-stable keeper, hitched one of the 
 horses to drive on his own business without A's knowledge or 
 consent, his liability for injury to the horse, while so driving, 
 was absolute and not dependent upon his want of care. He 
 is liable for the value of the horse killed while ouf^riving. 
 5 Cyc. Law & Proc, title " Bailment," 
 pp. 176, 177, 178. 
 
 The bailment was for " mutual benefit," and the boarding- 
 stable keeper is held to the exercise of ordinary care in rela- 
 
2'20 BaJS ExiMTNATIONS AOT) OOUESBS OF StUDT. 
 
 tion to the subject-matter and is responsible only for ordinary 
 negligence, while not going beyond his trust, which, under 
 the circumstances narrated, is that care which a man of 
 ordinary prudence and discretion would use in reference to 
 the particular thing, were it his own property, or in doing the 
 particular thing were it his own concern. (Id., pp. 182, 183, 
 184.) The fire which destroyed A's horses occurred without 
 B's fault or negligencej^ and killed his own as well as A's, 
 hence he is not liable to A for the value of the burned horse. 
 
 74. 
 
 The sale having been induced by fraud on the part of A, 
 B could repudiate the transaction and reclaim and retake the 
 goods from the possession of any one, except a transferee in 
 good faith and for a valuable consideration paid at the time of 
 the transfer. y 
 
 A, having purchased the goods for an antecedent debt, was 
 not a purchaser for a valuable consideration paid at the time 
 of the transfer. 
 
 B can replevin or demand a return of the goods and on re- 
 fusal sue in conversion or for their value. 
 
 Stevens v. Brennan, 79 N. T. 254. 
 Button V. Eathbone, 126 K Y. 192. 
 Terry v. Munger, 121 K Y. 161. 
 
 75. 
 Judgment for A. The fact that the agent had no express 
 authority to make the warranty is immaterial. Upon a sale 
 by sample, of goods in esse, there is an implied warranty that 
 the goods shall correspond with the sampleT" 
 
 Waring v. Mason, 18 Wend. 425, 
 Hargous v. Stone, 5 IST. Y. 73. 
 Smith V. Coe, 170 K Y. 171. 
 Gumey v. At. & G. W. E. Co., 68 N. Y. 
 364. 
 
 76. 
 The Court should admit the testimony. 
 " It was pertinent and not immaterial. The (Engineer's) 
 
Bab Examinations and Cottbses of Study, 221 
 
 authority to act for the defendant in relation to the stone 
 was in issue; it might be established by circumstances, and 
 among others the recognition by the defendant of acts on 
 his part similar to those in controversy." 
 
 Beattie v. D., L. & W. E. Co., 90 'N. Y. 
 643. 
 
 77. 
 
 The Court should exclude the testimony, as being parol 
 evidence to vary, contradict and alter a written agreement. 
 
 Johnson v. Oppenheim, 55 N. Y. 293. 
 
 78. 
 
 The Court should exclude the testimonj^. 
 Hearsay evidence on questions of pedigree is not admis- 
 sible unless the party who made the declarations is dead. 
 There was no proof ofFered that the father of B is dead. 
 
 Stephen's Dig. Law Ev. (Beers' IT. Y. 
 
 ed.), p. 151. 
 People V. Miller, 30 Misc. 355. 
 
 79. 
 
 "A husband or wife is not competent to testify against the 
 other upon the trial of an action, or the hearing upon the 
 merits of a special proceeding founded upon an allegation of 
 adultery, except to prove the marriage or disprove the allega- 
 tion of adultery." 
 
 Code Civ. Proc., sec. 831, 
 
 80. 
 
 The objection should be overruled. 
 
 The witness being competent and having personally in- 
 spected the bridge immediately after the accident, his knowl- 
 edge was derived from his own observations and he may be 
 asked his opinion directly upon the fact. 
 
 Abbott's Brief on Facts, p. 229. 
 
222 Bab Examinations and CotrEsss of Study. 
 
 / 81. 
 
 Murder in the first deffree. 
 
 It is murder in the fir?t degree to kill a human being when 
 committed without a d^ign to effect death, by a person en- 
 gaged in the commissipn of, or in an attempt to commit a 
 felony, either upon or Effecting the person killed or otherwise, 
 
 E^nal Law (chap. 88, Laws 1909), sees. 
 / 2, 400, 402, 1044. 
 'People V. Cole, 2 N. Y. Grim. Eep. 108. 
 Fitzgerald v. People, 37 IST. Y. 413. 
 People V. Flanagan, 174 IST. Y. 356. 
 People V. Greenwall, 115 N. Y. 520. 
 
 'V 
 
 82. 
 Yes. In all cases, other than felony, defendants Jointly 
 indicted may be tried separately or jointly in the discretion 
 
 Code Crim. Proc, sec. 391. 
 
 83. 
 
 O was guilty of petit larceny, 
 
 A committed a misdemeanor when he feloniously stole in 
 the day time, as stated, an overcoat of the value of ten dollars. 
 C, who thereafter aided A to escape from arrest, knowing at 
 the time that he was liable to arrest, became a principal to 
 the crime and could be indicted and punished as such. 
 
 Penal Law (Laws 1909, chap. 88), sees. 
 2, 27, 1298, 1299, 
 
 84. 
 
 Yes. [Assault. 
 
 " The menace of violence with a dangerous weapon by a 
 person within striking distance of the party menaced is an 
 assault, although the person menaced is not actually struck, 
 and damages may be recovered for such assault." 
 
 Liebstadter v. Pedergreen, 80 Hun, 245. 
 
 85. 
 
 Upon A. 
 
 It was immaterial under the circumstances whether A's 
 ox was known to be vicious or not, when it gored B's ox 
 
Bau Examinations and Coueses of Stxtot. 223 
 
 through the fence, which separated the farms. The fence 
 being proper, it committed a trespass for which A is liable. 
 
 iVan Leuvin v. Lyke, 1 N. Y. 515. 
 Marsh v. Hand, 120 K T. 319. 
 
 88. 
 
 No. 
 
 "A person cannot place himself in a position of danger 
 simply for the protection of his property * * * without 
 being guilty of such negligence as will preclude a recovery for 
 a personal injury in so doing." 
 
 Morris v. Eailway Co., 148 K Y. 182* 
 
 87. 
 
 C, D and E each taie one-third or four thousand dollars. 
 A's right of inheritance and succession from his natural 
 parents remained unaffected by his adoption, but his parent D 
 stood toward him in the legal relation of parent and child 
 and inherited from him as such. 
 
 Dom. Eel. Law (chap. 19, Laws 1909), 
 
 sec. 114. 
 Code Civ. Proc, sec. 2732. 
 
 88. 
 
 The widow has her election and can claim dower in either 
 estate, provided she evinces her election by the commencement 
 of an action to recover her dower in the lands given in ex- 
 change within one" year after the death of her husband, if not, 
 she will be deemed to have elected to taie her dower in the 
 lands, received in exchange. 
 
 Eeal Property Law (chap. 52, Laws 
 1909), sec. 191. 
 
 Mary wins. The will was valid as a nuncupative will of a 
 soldier in actual service, and in extremis dying on the field of 
 
224 iBab Examinations and Coueses op Studt. 
 
 battle. Its execution, and tenor can be established by at least 
 two witnesses. 
 
 Prince v. Hazelton, 20 Johns. 502. 
 
 Ex parte Thompson, 4 Bradf. Suit. 154. 
 
 Code Civ. Proc, sec. 2618. 
 
 Eedfield's Surr. Pr. (6th ed.), p. 201, 
 sec 240. 
 
 Decedent Estate Law (chap. 18 Laws 
 1909), sec. 16. 
 
 Hubard v. Hubbard, 8 K Y. 199. 
 
 90. 
 
 Judgment for B. Equity will not interfere with a bad 
 bargain, if there was no disability or fraud. 
 
 1 Store's Eq. Jurisp. (12th ^.), sec 244. 
 
 91. 
 
 Yes. They can bring an action in equity to have the prop- 
 erty purchased by A impressed with the original implied trust 
 so as to hold the same for the benefit of the children including 
 himself. The last piece of property A purchased with the 
 proceeds of the sale of the house the mother deeded to him 
 under their agreement, and it stands in the place thereof. 
 The trust grows out of the facts, founded upon the confiden- 
 tial relation of mother and son, brothers and sisters. 
 
 Goldsmith v. Goldsmith, 145 K Y. 313. 
 Wood V. Eabie, 96 K Y. 425. 
 Ahrens v. Jones, 169 K Y. 561. 
 Hunt V. Hunt, 171 K Y. 401. 
 McClellan v. Grant, 83 App. Div. 603. 
 
 92. 
 
 O cannot get rid of the mortgage without paying or offer- 
 ing to pay the sum actually loaned. He is not a borrowei 
 within the meaning of the provisions of the usury law (sec. 
 4, chap. 430, Laws 1837), declaring such paym^t or offer to 
 be unnecessary as a condition of granting relief to a borrower. 
 Buckingham v. Coming, 91 N". Y. 625. 
 Hubbard v. Todd, 171 U. S. 474. 
 
Bae Eixaminations anb Coxieses of Study. 225 
 
 93. 
 
 The judgment is invalid. B, the president, well knowing 
 the insolvency of the corporation, procured his wife to insti- 
 tute suit and to recover judgment; the judgment was pro- 
 cured or suffered through the actual agency of an officer of 
 the company contrary to the provisions of section 66 of the 
 Stock Corporation Law, chapter 61, Laws 1909,^:7— 
 Dickson v. Maye, 35 St. Eep. 482. 
 
 94. 
 
 The X Ci^'Uipany is not liable. It ia an ultra vires act for a 
 jorporation organized for the purpose of manufacturing beer 
 and malt to hecome an accommodation surety for the pay- 
 ment of the i-emt of a house which one of its directors rented 
 of A, and A was ^ound to know in that regard the limitations 
 on the cojporatt powers. 
 
 Jemison v. 0. S. Bank, 122 K Y. 135. 
 
 10 Cyc. 1148 et seq. 
 
 Nat. Park Banik v. G. A. M. W. & S. Co., 
 116 N. Y. 281. 
 
 Wide as to its being surety on leases of 
 saloons, Koehler v. Eeinheimer, 26 
 App. Div. 1; Aaronson v. David 
 Myer B. Co., 26 Misc. 655 ; Idem, 
 on appeal, 29 Misc. 289 ; Holin v. 
 Claus, 21 App. Div. 204; 66 A. D. 
 622. 
 
 95. 
 
 The directors of a stock corporation shall not make divi-- 
 dends except from the surplus profits arising from the busi-" 
 ness of such corporation. Each of the directors who voted to 
 borrow $50,000 on the notes of the corporation is jointly and 
 severally liable to such corporation and to the creditors thereof 
 to the full amount of any loss sustained by such corporation 
 or creditors respectively by reason of such act. The two 
 directors who dissented are not liable, provided they caused 
 15 
 
;226 Bae Examinations anb Oodeses of Study. 
 
 their dissent to be entered at large upon the minutes of such 
 directors at the time or were not present when it happened. 
 The Stock Corporation Law (chap. 61, 
 Laws 1909), sec. 28. 
 
 96. 
 
 To the wife, $5,000; to the creditors, $2,500. 
 
 A married woman to whom a policy on the life of her 
 husband is made payable, when she survives, is entitled to 
 receive the insurance money payable by the terms of the 
 policy as her separate property, and free from any claim of a 
 creditor or representative of her husband, except that where 
 the premiums actually paid annually out of the husband's 
 property exceed $500, that portion of the insurance money 
 which is purchased by excess of premiums above $500, is 
 primarily liable for the husband's debts. 
 
 Dom. Eel. Law (Laws 1909, chap. 19), 
 sec. 52. 
 
 97. 
 
 The marriage of B and C legitimatized A, and he became 
 entitled to all the rights and privileges of a legitimate child. 
 Dom. Bel. Law (Laws 1909, chap. 19), 
 sec. 24. 
 
 The real estate descended to A subject to his mother's 
 dower. Decedent Estate Law (chap. 18, Laws 1909), 
 sec. 81. 
 
 The personal estate was distributed one-third to the mother 
 and the balance to A. (Decedent Estate Law supra, sec. 98.) 
 
 X, the father of the deceased, took nothing. 
 
 98. 
 
 He has neither duty nor liability. The debt was contracted 
 after the marriage. He is liable for his wife's debts con- 
 tracted before marriage to the extent of the property of his 
 wife which he acquired by antenuptial contract or otherwise. 
 Dom. Eel. Law (Laws 1909, chap. 19), 
 sec. 54. 
 
Bab ExAMiiTATioNs AND CouESEs OF Studt. 227 
 
 99. 
 
 The act is unconstitutional. It is an unlawful interference 
 with and abridgment of the liberty of the citizen in that it 
 prevents him from engaging in the business of selling passage 
 tickets on steamboats and railroad trains, the business being 
 perfectly lawful, innocent and harmless. 
 
 Vide 168 K Y. 671; 173 N. T. 211; 83 
 App. Div. 201. 
 
 It transcends the police power and violates the constitu- 
 tional guarantees of civil rights and privileges and of liberty 
 (Const, art. 1, sees. 1-6). 
 
 People ex rel. Tyroler v. Warden, 157 
 
 K Y. 116. 
 Dodge V. Cornelius, 168 K Y. 251. 
 
 100. 
 
 Advise the abutting owners to commence action and pro- 
 cure an injunction restraining the construction and oper- 
 ation of the road, on the ground that it deprives them of 
 property without due process of law (the owners having title 
 to the center of the street) in violation of section 6, article 
 1, of the Constitution of the State, and as being in violation 
 of section 18, article 3 thereof, which states that " No law 
 shall authorize the construction or operation of a street rail- 
 road except upon the condition that the consent of the own- 
 ers of one-half in value of the property bounded on, and the 
 consent also of the local authorities having the control of 
 that portion of a street or highway upon which it is proposed 
 to construct or operate such railroad be first obtained, or in 
 case the consent of such property-owners cannot be obtained, 
 the Appellate Division of the Supreme Court, in the depart- 
 ment in which it is proposed to be constructed, may, upon 
 application, appoint three commissioners who shall deter- 
 mine, after a hearing of all parties interested, whether such 
 railroad ought to be constructed or operated, and their deter- 
 mination, confirmed by the court, may be taken in lieu of 
 the consent of the property-owners." 
 
228 Bae Examinations and Ooueses ov Study. 
 
 101. 
 
 , l^^-' 
 
 STATE OE ITEW TOEK, 
 City and County or Albany, 
 
 A B, being duly sworn, deposes and says, that he is the 
 attorney for the plaintiff herein. 
 
 That the foregoing complaint is true to the knowledge of 
 the deponent, except as to the matters therein stated to be 
 alleged on information and belief, and that as to those mat- 
 ters he believes it to be true. 
 
 That this action is foimded upon a written instrument 
 for the payment of money only, now in deponent's possession, 
 which instrument is the source of deponent's information, 
 and the grounds of his belief are (here set forth the grounds 
 of your belief as to all matters not stated upon your knowl- 
 edge, and the reason why the verification is not made by the 
 party). 
 
 (Signed) A B. 
 
 Sworn to before me, this ...... 
 
 day of ,190... 
 
 Notary Public, 
 
 Albany County, IT. T. 
 Code Civ. Proc, sees. 525, 526. 
 
 103. 
 
 Deliver, at once and before the statute of limitations in- 
 tervenes, the summons to the sheriff of the county where B 
 resides, with intent that it shall be actually served on B. 
 If the sheriff serves it on B, or the first publication of the 
 summons as against B, pursuant tolln order for service upon 
 him in that manner is made, within sixty days after the 
 expiration of the time limited for the actual commencement 
 of the action, the action will be deemed to have been com- 
 menced against B, within the meaning of each provision of 
 the Code of Civil Procedure, which limits the time for com- 
 mencing an action. 
 
 Code Civ. Proc, sec. 399. 
 
Bab Examinatioits and Couesbs of Studt. 229" 
 
 103. 
 
 An injunction order is an order issuing out of the Su- 
 preme Court restraining the commission or continuance of 
 an act, the commission or continuance of which, during the 
 pendency of the action, would produce injury to the plaintiff, 
 or requiring a person to do or to refrain from doing a par- 
 ticular thing. 
 
 Code Civ. Proc, sec. 603. 
 Am. & Eng. Encyc. of Law (2d ed.), 
 Vol. XVI, p. 342. 
 
 It may be granted in an action : 
 
 (1) " Where it appears, by affidavit, that the defendant, 
 during the pendency of the action, is doing, or procuring or 
 suffering to be done, or threatens or is about to do, or to 
 procure, or suffer to be done, an act, in violation of the 
 plaintiff's rights, respecting the subject of the action, and 
 tending to render the judgment ineffectual, an injunction 
 order may be granted to restrain him therefrom." 
 
 (2) " Where it appears, by affidavit, that the defendant 
 during the pendency of the action, threatens or is about to 
 remove, or to dispose of his property, with intent to defraud 
 the plaintiff, an injunction order may be grauted, to restrain 
 the removal or disposition." 
 
 Code Civ. Proc, sec. 604. 
 
 104. 
 
 No. A false answer is not a sham answer, nor a sham 
 defense which may be stricken out by the Court upon motion. 
 
 Code Civ. Proc., sec. 638. 
 Wayland v. Tysen, 45 N. Y. 281. 
 Thompson v. Erie E. K. Co., 45 N. Y. 
 468. 
 
 105. 
 
 Exhibit the original subpoena to the witness, and, at the 
 same time, deliver to him in person, which must be at least 
 five days before the day when he is required to attend, a copy 
 
230 Bab Examinatioits and Couesbs op Studt. 
 
 of the subpoona or a ticket containing its substance, and pay- 
 ing to him fifty cents for each day's attendance and eight 
 cents for each mile going to the place of attendance. 
 
 Code Civ. Proc, sees. 852, 867, 3318. 
 
 106. 
 
 ^^ Code Civ. Proc, sec. 1176. 
 
 107. 
 
 The tenant has no remedy under the circumstances. The 
 rain leaked through on the tenant's stock, directly under the 
 leaky skylight, for several days. 
 
 " The tenant was not justified in creating or adding to 
 such damage by leaving his property where he knew it would 
 be subjected to the injury complained of. The measure of 
 damages would be the difference in the rental value as they 
 were, and would have been in a proper state of repair. 
 (Drago V. Mead, 30 App. Div. 258.) But a lessee, knowing 
 that his property, if left upon the premises, will be exposed 
 to injury by a failure of the lessor to repair, has no right to 
 take the hazard, and if he does, and his property is injured, 
 he cannot recover of his lessor therefor." 
 
 Huber v. Kyan, 57 App. Div. 37. 
 
 108. 
 
 has no right. The sheriff can sell. 
 
 B has an absolute power of disposition of the estate for 
 his own use, and it is not accompanied by a trust. Such an 
 estate is deemed a fee absolute in respect to the rights of 
 creditors, purchasers and incumbrancers, and when the power 
 of absolute disposition is executed, or the property is sold 
 for the satisfaction of debts, future estates limited thereon 
 are cut off. 
 
 Keal Property Law (chap. 52, Laws 
 1909), sec. 149. 
 
 109. 
 
 The trust is valid. The absolute power of alienation is 
 not suspended for any time, nor for any number of lives. 
 
Bab Examinations and Couesbs of Study. 231 
 
 because there is a person in being, to wit: the executor, by 
 whom an absolute fee in possession can be conveyed at any 
 time, for the purposes of declaring the trust at end, and 
 making immediate distribution of the proceeds thereof in the 
 maimer provided in the will. 
 
 Real Property Law (chap. 52, Laws 
 
 1909), sec. 42. . 
 Sawyer v. Cubby, 146 IST. T. 192. 
 
 110. 
 
 Judgment for B. There was no consideration for B's 
 promise, and it created no obligation against him, even though 
 in writmg. j,.^^^,^ Lawyers' Brief, sec. 100. 
 
 MiUs V, Wyman, 3 Pick. 207. 
 
 111. 
 
 B wins. The promise of C arose out of a new considera- 
 tion, and was not within the statute of frauds, and having 
 been adopted by B, the latter can maintain an action thereon 
 
 against 0. Parley v. Cleveland, 4 Cow. 432. 
 
 Cleveland v. Farley, 9 Cow. 639. 
 Lawrence v. Fox, 20 K Y. 268. 
 
 112. 
 
 The firm la not liable on the note. It was given by one 
 of the partners in payment of his individual debt to and with 
 the knowledge of C, and without the knowledge of the other 
 members of the firm, or their subsequent assent. 
 Laverty v. Burr, 1 Wend. 529. 
 
 113. 
 
 Advise A that an action will not lie, at law, to recover the 
 amount he claims. One partner cannot sue another partner 
 to recover alleged profits, unless there has been a settlement 
 of accounts, a bailee struck and an express promise to pay. 
 
 Westerlo v. Evertsen, 1 Wend. 532. 
 
 Eelanger v. Dana, 52 Hun, 39. 
 
 Carey v. Brush, 2 Caines, 293. 
 
232 g^g EXAMIWATIOWS AND OoUESES OF StUDT. 
 
 114. 
 
 A wins. 
 
 0, the indorser, before the maturity of the note personally 
 requested the holder of the same to let it run for another 
 year, and the latter consented on the express agreement of 
 C to " let his name be on it and let it be as it was." thereby 
 waived demand and notice. 
 
 " The indorser of a promissory note may, before maturity, 
 waive, either verbally or in writing, demand and notice of 
 nonpayment; the waiver may result from implication or 
 usage, or from any understanding between the parties which 
 satisfies the mind that a waiver was intended." 
 
 Cady V. Bradshaw, 116 K Y. 188. 
 
 115. 
 
 Judgment for A. 
 
 "A promissory note payable on demand, whether with or 
 without interest, ia due forthwith, and an action thereon 
 against the maker is barred by the statute of limitations, if 
 not brought within six years after its date." 
 
 Wheeler v. Warner, 47 K T. 519. 
 
 Knapp V. Greene, 79 Hun, 266. 
 
 Eaton & Gilbert on Com. Paper, p. 447. 
 
 v. 
 
 Judgment for B. was B's agent for the purposes of the 
 loan and his knowledge was B'r knowledge until A colluded 
 with C to defraud B. 
 
 " The rule which charges a principal with the knowledge 
 of his agent is for the protection of innocent third persons. 
 If a person colludes with an agent to cheat the principal, the 
 latter is not responsible for the act or knowledge of the 
 
 *S®^*-" National Life Ins. Co. v. Minch, 53 K Y. 
 
 144. 
 
 117. 
 Judgment for the passenger. 
 
 The company is liable for any injury inflicted by its ser- 
 vant, when not acting within the scope of his employment, 
 
Bab Examinations and Coubses of Study. 233 
 
 while engaged in performing a duty which the carrier owes 
 to the passenger. 
 
 Stewart v. Brooklyn & Orosstown E. E. 
 Co., 90 N. T. 588. 
 
 118. 
 
 A is released by the valid extension granted. 
 
 " Where a partnership is dissolved and one partner takes 
 the partnership property and agrees to pay the partnership 
 debts, as between himself and his former partner, he thereby, 
 as to those debts, becomes the principal debtor, while the 
 retiring partner occupies the relation of surety only (Savage 
 V. Putnam, 82 K Y. 501; Morss v. Gleason, 64 id. 204; 
 Colegrove v. Tallman, 67 id. 95), and when sudi an arrange- 
 ment is fairly and fully brought to the knowledge of a cred- 
 itor of the firm, he is bound to respect the rights of his 
 debtor, who thus becomes a surety, and thereby acquires the 
 right of protection as such. (Palmer v. Purdy, 83 N. Y. 
 144; Grow v. Garlock, 97 id. 81; U. S. N. Bank v. Under- 
 wood, 2 App. Div. 342.)" 
 
 Eeed & Barton v. Ashe, 18 App. Div. 
 502, 603, 504. 
 
 119. 
 Yes. C is not liable. 
 
 "A surety is prejudiced by the risk assumed by the non- 
 disclosure of the fact that the principal, for want of in- 
 tegrity, is not entitled to confidence in the relation which his 
 surety is induced to assume to him; such concealment is 
 deemed fraudulent, and everything short of that is insufficient 
 to avoid the obligation of the surety." 
 
 Ludekens v. Pscherhofer, 76 Hun, 548. 
 32 Cyc. 62. 
 
 120. 
 
 The wife had a vested interest in the policy at the moment 
 of its delivery to the husband; he had no authority without 
 her assent to surrender the same and she can recover the 
 
234 Bae Examinations aito Coueses op Study. 
 
 amoTint of the policy less the unpaid premiums witii interest 
 
 thereon. 
 
 .Whitehead v. N. T. Life Ins. Oo., 102 
 
 N. Y. 143. 
 
 121. 
 
 The insurance company is liabla 
 
 "A policy for a long period upon goods in a retail shop, 
 applies to the goods successively in the shop, from time to 
 time." 
 
 During the two months' vacation " the effect of the policy 
 as an indemnity vs^as suspended, not from any vice in the 
 policy but from the absence of a subject for it to act upon 
 * * * yet the policy still continued to be a valid sub- 
 sisting contract in the hands of the insured, and had they 
 subsequently purchased the same goods or other goods and 
 brought them into the store they would have been covered 
 
 by it" 
 
 Hooper v. Hudson Eiver F. Ins. Co., 17 
 
 ISr. Y. 426. 
 Richards on Insurance Law (3d ed.), sec. 
 234. 
 
 122. 
 
 Judgment for B. It was A's duly, as well as contract to 
 return the horse to B at the expiration of the month for 
 which it was hired, and when he, without B's consent, kept 
 the horse for a longer time, he became answerable " in all 
 events" for losses happening thereafter. 
 
 Vol. 1, Cowen Treatise (5th ed.), sec. 105. 
 
 Ouderkirk v. C. K Bank, 119 KY. 263. 
 
 Young V. Leary, 135 IST. Y. 5T6. 
 
 5 Cyc. of Law & Pro., pp. 1Y6, 1Y7, 178, 
 182, 183, 184. 
 
 123. 
 
 Judgment for the defendant, warehouseman. 
 "A failure upon the part of a bailee to deliver to a bailor 
 his property on demand raises a presumption of liability, but 
 
Bab EzAMiNATioirs and Ooubsis of Studt, 235 
 
 this presumption is prima facie only, and may be overcome 
 by evidence. And when it appears that the loss was caused 
 by some accident, the onus continues upon the bailor to prove 
 that such accident was caused by want of care upon the part 
 of the bailee. (Olaflin v. Myer, 75 K Y. 260; Draper v. 
 D. & H. Co., 118 id. 118; Stewart v. Stone, 127 id. 500.)" 
 
 Kaiser v. Latimer, 9 App. Div. 38. 
 
 liberty Ins. Co. v. Cent. Vt K. K. Co., 
 19 id. 509. 
 
 124. 
 
 A may replevy the horses from or may demand same, and 
 on refusal may sue in conversion, or he may waive the tort 
 and sue for their value. 
 
 Terry v. Hunger, 121 'N. Y. 161. 
 
 Although A and B violated the statute relating to the con- 
 ditional sal© of goods and chattels, is not within its protec- 
 tion for the reason that he is not a purchaser for value, having 
 takea the horse in extinguishment of an antecedent debt. 
 
 Personal Property Law, (chap. 45, Laws 
 
 , 1909), sees. 62, 63. 
 Victoria Paper Mills v. N. Y. & Penn. 
 
 Co., 28 Misc. 123. 
 Levy V, Yazbeek, 22 Misc. 136. 
 Rochester Distilling Co. v. Devendorf, 72 
 Hun, 428. 
 
 12S. 
 
 Judgment for AL 
 
 " The defendant being indebted to the plaintiff for goods 
 sold, gave him the promissory note of a third person, which 
 was received by him in full payment and discharge of the 
 debt. The maker of the note was insolvent at the time of the 
 transfer of the note, though this fact was unknown to the 
 parties. Held, that it was a case of mutual mistake of fact, 
 and that the plaintiff was entitled to recover from the defend- 
 ants his original debt." 
 
 Eoberts v. Fisher, 43 K Y. 159. 
 
,236 Bab 'Exauiisa.tions aitd Coueses op Study. 
 
 126. 
 
 The Court should send the case to the jury. 
 
 The plaintiff was the sole witness to establish his cause oi 
 action. 
 
 " The general rule is that where a witness is interested in 
 the question, although he is not impeached or contradicted, 
 his credibility is a question for the jury, and the Court is 
 not warranted in directing a verdict upon his testimony 
 alone." 
 
 Saranac & L. P. R. R. Co. v. Arnold, 
 167 K Y. 373. 
 
 127. 
 
 The Court should overrule the objection and allow the tes- 
 timony. 
 
 " The presentment by a party to his debtor of an account 
 in which he charges a gross sum for services for which he is 
 entitled to be paid quantum meruit, there being no payment 
 nor settlement of the account, does not preclude the creditor 
 from showing what the services were reasonably worth, and 
 recovering a larger sum than that at which they were so 
 charged by him," 
 
 Williams v. Glenny, 16 N. Y. 389. 
 Shiland v. Loeb, 58 App, Div. 565. 
 
 128. 
 
 A has no remedy. He cannot prove his parol agreement 
 Parol evidence of such agreement is inadmissible as it tends 
 to vary the written contract. 
 
 Love V. Hamel, 59 App. Div. 360. 
 
 129. 
 
 On the cross-examination of the opposing witness, call lis 
 attention to the time or place of the statement or other identi- 
 fying circumstances and ask him if he did not at that time 
 or place or under the circumstances stated say the fact to be 
 as it Ib proposed to prove he said it was. 
 
 Eice V. Eice, 43 App. Div. 458 ; 187 F. 
 Y. 128. 
 
Bar Examinations and Coiteses of Study. 237 
 
 130. 
 
 The ruling of the court should b© that the question was 
 improper. His opinion should he obtained by stating to him 
 an hypothetical case. (121 N. Y. 250, 12 Cyc. 255, 136 
 K Y. 1, 518, 191 K Y. 482.) 
 
 Eeynolds v. Reynoldc, 6-1 N. Y. 589 ; 136 
 
 N. Y. 518. 
 ■Abbott's Trial Brief, Facts, p. 229; 191 
 N. Y. 482. 
 131. 
 The sentence is void. Grand larceny being a felony the 
 prisoner must, before the verdict is received, appear in per- 
 son. It cannot be received in his absence. 
 
 Code Crim. Proc., sec. 434. 
 132. 
 The Court should refuse to discharge the prisoner. 
 " It is no defense to a prosecution for perjury that the 
 defendant did not know the materiality of the false state- 
 ment made by him ; or that it did not in fact affect the pro- 
 ceeding in or for which it was made. It is sufficient that 
 it was material, and might have affected such proceeding." 
 Penal Law, chap. 88; Laws 1909, sec. 
 1624. 
 133. 
 A was not guilty of robbery. The watch was " gone be- 
 fore B was aware of the transaction," so the taking was not 
 by means of force, or violence or fear, and the pistol was 
 employed merely as a means of escape. 
 
 Penal Law, (Laws 1909, chap. 88), sees. 
 2120, 2121. 
 
 A was guilty of grand larceny in the first degree in that 
 he took the watch from the person of another in the night 
 time. 
 
 Penal Law, (id.), sec. 1294. 
 134. 
 Advise B to defend. 
 
 He had the legal right to sink a well on his own farm and 
 to take therefrom all the water that he needed for the full 
 and proper enjoyment and usefulness of his land. 
 
^38 Bab Examinations and Couesbs of Sttjdt. 
 
 This being a subterranean stream -witli nothing upon the 
 surface to indicate its existence which was unknown, it may 
 be intercepted or diverted by the owner of the land for any 
 purpose of his own, vide Bloodgood v. Ayers, 108 'N. Y. 
 400, except, perhaps, for merchandising it, as limited in For- 
 bell V. City of New York, 164 JST. Y. 622, 525, and West- 
 phal V. New York, 177 N. Y. 140. 
 
 135. 
 
 Yes, he has a good defense; the parents of the child are 
 guilty of contributory negligence which is imputable to the 
 child. 
 
 " Where a child of such tender age as not to possess suf- 
 ficient discretion to avoid danger, is permitted by its parents 
 to be in a public highway without any one to guard him, and 
 is there run over by a traveler and injured, neither trespass 
 or case lies against the traveler, if there be no pretense that 
 the injury was voluntary, or arose from culpable negligence 
 on hia part." 
 
 Hartfield v. Koper, 21 "Wend. 614. 
 
 136. 
 
 B can maintain his action; caflnot. 
 
 To say of a merchant that he is a bankrupt would tend to 
 iajure him in his trade, occupation or business. That would 
 not injure a coachman in the same manner, hence the coach- 
 man would have to allege and prove special damages. 
 
 " Words written or spoken of a man in relation to his 
 business or occupation which will have a tenclency to hurt, 
 or are calculated to prejudice him therein, are actionable, 
 although they charge no fraud or dishonesty and were ut- 
 tered without actual malice; and when proved unless the 
 defendant shows a lawful excuse, the plaintifF is entitled to 
 recover, without allegation or proof of special damage, as 
 both the falsity of the words and resulting dainage are pre- 
 Bumed." 
 
 Moore v. Francis, 121 N. Y. 199. 
 
 Vide Crane v. Bennett, 177 N. Y. 106. 
 
Bae Examinations and Coueses of Study. 239 
 
 137. 
 
 John Doe would take the property devised by the brother 
 subject to widow's dower; the sister's property would go to 
 her heirs-at-law and next of kin. 
 
 If a testator, having disposed of the whole of his estate by 
 will, afterward marries and has issue of such marriage, and 
 the wife or the issue be living at his death, his will is re- 
 voked; the brother dies without having had issue, hence his 
 will stands. A will executed by an unmarried woman is re- 
 voked by her subsequent marriage. 
 
 Eedfield's Surrogate Practice (6th ed.), 
 sec. 228, pp. 191, 192. 
 
 138. 
 
 The widow takea all, under the circumstances disclosed. 
 She takes one-half, and the residue because it does not 
 exceed two thousand dollars. 
 
 Decedent Estate Law (Laws 1909, 
 chap. 18), sec. 98, sub. 3. 
 
 139. 
 
 The will stands as written and the sons take the residuum; 
 the irate father should have re-executed the same. 
 
 " "Where a testator attempts to revoke a particular clause 
 by canceling it and giving a legacy thereby bequeathed over 
 to other persons by inserting their names in the will, but 
 without re^execution and attestation of the will, the revo- 
 cation will not be carried iato effect." 
 
 Eedfield's Surrogate Practice (6th ed.), 
 
 sec. 224, p. 187. 
 Matter of Carver, 3 Misc. 567. 
 Matter of Wilcox, 46 St Eep. 877. 
 
 140. 
 
 The Supreme Court has jurisdiction. 
 
 "The Supreme Court may compel specific performance 
 
,240 Bae Examinations and Coueses of Study. 
 
 by] a resident of this State of a contract for the convejanca 
 of land lying -without its jurisdiction." 
 
 Ne-wton v. Bronson, 13 N. Y. 587. 
 
 Code Civ. Proc, sees. 982, 984. 
 
 MuUer v. Dows, 94 U. S. 444. 
 
 Dull V. Blacfeman, 169 TJ. S. 243. 
 
 141. 
 
 C as a Junior mortgagee has the right to contest the valid- 
 ity of the prior mortgage. This right grows out of his 
 right to redeem, that is to say, his right to have the fund 
 available for the payment of his claim as large as possible. 
 
 Vol. XX, Encyc. of Law (2d ed.), p. 
 1033. 
 
 C can bring an action in equity to cancel B's mortgage, 
 and in that action obtain an injunction order restraining B's 
 foreclosure during the pendency of the action. 
 
 Code Civ. Proc, sees. 603, 604. 
 
 142. 
 
 Yes. was not a purchaser for value. 
 
 "A legal title under a recorded deed is good as against a 
 subsequent mortgagee who received his mortgage as secu- 
 rity for or in payment of a precedent debt, and who surren- 
 dered no security or parted with no value, as he is not a pur- 
 chaser for a valuable consideration within the meaning of 
 the recording act." 
 
 Carj V. White, 52 K Y. 138. 
 
 143. 
 
 A wins. He is not liable until B recovers a judgment 
 against the corporation and execution is returned unsatisfied 
 in whole or in part. 
 
 Stock Corporation Law (chap. 61, Laws 
 1909), sees. 56, 59. 
 
Bab Examinations and Coueses of Study. 241 
 
 IM. 
 
 Judgment in favor of th.e X Bank against A. Judgmen* 
 in favor of tie B manufaoturing corporation against the 
 X Bank. 
 
 A mannfacturing corporation has no power to indorse 
 notes for tie accommodation of another, and the note was 
 void as against the corporation in the hands of the X Bank, 
 which discounted the same with knowledge of the facts. 
 
 Nat. Park Bank v. G. A. M. W. S. & Co., 
 
 116 N. Y. 281. 
 Fox V. Eural Home Company, 90 Hun, 
 
 365. 
 
 145. 
 
 No. A stockholder of a corporation is personally liable 
 for all debts due and owing to any of its laborers, servants 
 or employees, other than contractors, for services performed 
 by them for such corporation, but before such laborer, ser- 
 vant or employee shall charge such stockholder for such ser- 
 vices, he shall give him notice in writing within thirty days 
 after the termination of such services that he intends to 
 hold him liable and shall commence an action therefor 
 within thirty days after the return of an execution unsatis- 
 fied against the corporation upon a judgment recovered 
 against it for seorvices. 
 
 Stock Corp. Law (chap. 61, Laws 1909), 
 
 sec. 57. 
 Berwind v. Ewart, 90 Hun, 60. 
 
 146. 
 
 Up to the time of the divorce the husband had a tenancy 
 by the courtesy initiate in the wife's house and lot, which he 
 lost when she obtained a divorce from him. 
 
 Eenwick v. Eenwick, 10 Paige, 420. 
 The son inherits the property. 
 
 Decedent Estate Law (chap. 18, Laws 
 1909), sec 81. 
 
 16 
 
242 Bak Examinations and Coueses of Study. 
 
 147. 
 
 A has no rights; B was not guilty of any legal irregu- 
 larities. 
 
 B, the -wife, had the legal right to marry again, when her 
 husband was finally sentenced to imprisonment for life, and 
 his subsequent pardon did not restore him to the rights of 
 the previous marriage or to the guardianship of the child. 
 
 Dom. Eel. Law (chap. 19, Laws 1909), 
 sees. 6, 58. 
 
 148. 
 
 Judgment for A, the husband. 
 
 Although t-he wife has been emancipated in many things 
 yet she is still under the common-law disability of being 
 unable to maintain an action against her husband to recover 
 damages for an assault and battery committed by him upon 
 her. 
 
 Abbe V. Abbe, 22 App. Div. 484:. 
 
 149. 
 
 Yes. " The granting of the new trial places the parties 
 in the same position as if no trial had been had." 
 
 Code Crim. Pro., sees. 464, 543, 544. 
 People V. Palmer, 109 IST. T. 413. 
 People V. Wheeler, 79 App. Div. 399. 
 Trono v. United States, 199 U. S. 521. 
 The rule was otherwise prior to the Code. 
 
 People V. Bowling, 84 W. Y. 478. 
 People V. Cignarale, 110 IT. Y. 30, 31. 
 People V. McCarthy, 110 N. Y. 314, 
 315. 
 
 150. 
 
 The Constitution (art. 1, sec. 6) guarantees to all persons 
 accused of crime the right to appear and defend in pereon 
 and with counsel, and as the Sheriff refused to allow you a 
 private interview vrith youx client in order to prepare for 
 
Bae Examinations and Cotjbses of Studt. 243 
 
 his trial, he has violated the constitutional rights of the 
 prisoner and a peremptory writ of mandamus will issue to 
 compel him to grant your application. 
 
 People ex rel. Burgees v. Eiseley, 13 
 Abb. N. C. 186. 
 
 151. 
 
 (1) Summons. 
 STATE OF NEW TOEK 
 SUPREME COUPT, COUNTY OF ALBANY. 
 
 JANE DOE, Plaintiff, 
 
 against 
 JOHN DOE, Defendant 
 
 To the above-named defendant: 
 
 You are hereby summoned to answer the complaint in this 
 action, and to serve a copy of your answer on the plaintiff's 
 attorney within twenty days after the service of this sum- 
 mons, exclusive of the day of service; and in case of your 
 failure to appear or answer, judgment will be taken against 
 you by default for the relief demanded in the complaint 
 Trial to be held in the county of Albany. 
 
 Dated, this .... day 
 of January, 190. .. 
 
 XYZ, 
 
 Plaintiff's Attorney. 
 Office and Post-office Address, 
 , , Albany, N. Y. 
 
 Code Civ. Proc, sec. 418. 
 
 (2) Legibly write upon the face thereof the following 
 words, " action for a divorce." 
 
 Code Civ. Proc., sec. 1YY4. 
 
244 Bab Examinations and Coueses of Study. 
 
 (3) 
 
 STATE OF inEW YOEK, 
 
 J' 
 
 City and County of Albany, 
 
 John Jones, being duly sworn, deposes and says : That he 
 is eighteen years of age, and that on the .... day of January, 
 190. ., at No. 50 Ninth street, in the city of Albany, N. Y., 
 he served the annexed summons personally on John Doe, the 
 defendant herein named, by delivering a copy thereof to him 
 personally, and leaving the same with him, and that he knew 
 the person so served to be the person mentioned and described 
 in said summons as defendant. 
 
 That said summons so served on defendant, as aforesaid, 
 had, at the time of such service, legibly written upon the face 
 thereof the following words, " action for a divorce." 
 
 That deponent knows said John Doe to be such defendant 
 and the proper person to be served with said summons, be- 
 cause he has known the said defendant for the past ten years, 
 and has been a frequent visitor at his residence, No. 50 Ninth 
 street, in the city of Albany, where said defendant lived with 
 his wife, the plaintiff herein. 
 
 Sworn to before me, this , , 
 
 day of January, 190. . 
 
 Code Civ. Proc, sec. 1774* 
 Sup. Ct. Rule 18. 
 
 152. 
 
 If the county designated in the complaint as the place of 
 trial is not the proper county, you must serve upon the plain- 
 tiff's attorney, with your answer or before service of the 
 answer, a written demand to change the place of trial to the 
 proper county, designating it. 
 
 If the plaintiff's attorney does not serve his written con- 
 sent to the change as proposed by the defendant within five 
 days after the service of the demand, the defendant's attorney 
 may, within ten days thereafter, serve notice of motion tc 
 change the place of trial. 
 
 Code Civ. Proc, sees. 982-989, inclusiTa 
 
Bab ExAMiwATioisrs and Coubses of Study, 245 
 
 153. 
 
 Sue the young woman in tort for the damages sustained. 
 
 She was a bailee, and the moment she transcended the 
 
 terms of the bailment and used the horse in a maimer different 
 
 than that agreed upon by driving beyond the ten miles, and 
 
 keeping it for three days, she was guilty of conversion. 
 
 Disbrow v. Tenbroeck, 4 E. D. Smith, 
 
 397. 
 Fish V. Ferris, 5 Duer, 49. 
 
 Infants are liable for their torts, the same as adults. 
 Campbell v. Stakes, 2 Wend. 137. 
 Moore v. Eastman, 1 Hun, 578. 
 Conklin v. Thompson, 29 Barb. 218. 
 
 She is answerable for all losses happening after the time 
 for which she hired the horse. 
 
 Yol. 1, Cowen's Treatise (5th ed.), sec. 
 
 105. 
 Young V. Leary, 135 K Y. 576. 
 Ouderkirk v. 0. N. Bank, 119 IST. Y. 263. 
 6 Oyc. of Law & Pro., title Bailment, 
 pp. 176, 177 et seq. 
 
 154. 
 
 A sham answer or a sham defense can be stricken out by 
 the Court upon motion (Code Civ. Proc, sec. 538), but 
 a verified counterclaim cannot be stricken out as sham under 
 that section. 
 
 Briggs V. Freedman, 9 Civ. Proc 73. 
 Collins v. Suan, 7 Robt. 94, 
 Fettretch v. McKay, 47 N. Y. 426. 
 
 155. 
 
 An action for damages for an assault, not being an action 
 in which the clerk can enter final judgment, without permis- 
 sion, the plaintiff must apply to the Court or to a judge or 
 justice thereof out of court for judgment. 
 
 Code Civ. Proc, sec 1214. 
 
2i& Bae Examinations aitd Coubses of Study. 
 
 The damages must be ascertained by a writ of inquiry 
 
 (Code Civ. Proc, sec. 1215); whicb are assessed by a 
 
 sheriff's iury. „ . „ , „ „„„ 
 
 Kumsey's Practice, Vol. 2, p. 600. 
 
 The report or inquisition may be directed to be returned 
 to the Court or judge for further action; if not so returned, 
 the clerk enters judgment for the damages ascertained by the 
 inquisition without any further application. 
 
 Code Civ. Proc, sec 1215. 
 
 156. 
 
 Advise the sheriff to empanel a jury to try the validity of 
 the claim to the horses of the person claiming the same. 
 Code Civ. Proc, sec. 657. 
 
 157. 
 
 Yes. He was in possession and made permanent improve- 
 ments on the faith of the donor's promise. Equity will pro- 
 tect the gift under the circumstances. 
 
 "A parol gift of real estate and a parol promise to convey 
 the same is valid and enforceable in equity, where the donee 
 has entered into possession of the property and made per- 
 manent improvements thereon, on the faith of the donor's 
 promise, and this, although when specific performance by the 
 donee is claimed, the rental value of the property for the 
 time it has been occupied by the latter would be more than 
 the amount expended by him." 
 
 Young V. Overbaugh, 145 K Y. 168. 
 
 Hays V. Knauth, 169 N. Y. 304. 
 
 158. 
 
 O takes the planing machines; they are personal propertj 
 under the circumstances. 
 
 D takes the water wheel and the gearing for propelling the 
 machinery; they are real estate. 
 
 Murdock v. Gifford, 18 K Y. 28. 
 Ford V. Cobb, 20 IST. Y. 344. 
 Voorhees v. McGinnia^ 48 N. Y. 278. 
 
Bab Examlnations and Couesbs of Stddt. 247 
 
 159. 
 
 No. B's defense is not good. 
 
 The fact that A refused to allow B to enjoy his legal right 
 of passage over the right of way deeded to him does not 
 justify B in committing a trespass on A's land. 
 
 B should have removed the obstruction and sued for his 
 
 damages. 
 
 Williams v. SafEord, 7 Barb. 309. 
 
 160. 
 
 Judgment for Richard Hoe. The contract is void for 
 want of mutuality. Doe did not agree to employ Roe for any 
 particular time, hence Roe was not obliged to stay for any 
 definite period, and could leave at his option without in- 
 curring liability. 
 
 Bumet V. Bisco, 4 Johns. 235. 
 
 Tucker v. Woods, 12 Johns. 190. 
 iVol. 7 Am. & Eng. Encyc. of Law (2d 
 ed.), p. 114; vol. 20, id., p. 14. 
 
 161. 
 
 'A has no defense. 
 
 "An action for the breach of promise will lie at once, npon 
 a positive refusal to perform the contract of marriage, al- 
 though the time specified for the performance has not ar- 
 rived.'* 
 
 Burtis V. Thompson, 42 N. Y. 246. 
 
 Windmuller v. Pope, 107 K Y. 674. 
 Roehm v. Horst, 178 U. S. 1. 
 Vide 30 L. R. A. 33, and note. 
 
 162. 
 
 (1) Master and servant. 
 
 Vol. 20 Am. and Eng. Encye. of Law 
 
 (2d ed.), p. 18. 
 Wnber V. Sisson, 63 Barb. 258. 
 
 (2) Tenants in common. 
 
 Parker v. Mott, 43 App. Div. ML 
 Putnam v. Wise, 1 Bill, 234. 
 
248 Bab Examinations and Coubses os Study. 
 
 163. 
 
 Judgment for O. 
 
 " The rule is that as to all persons who have had actual 
 
 dealings -with the firm, actual notice of the dissolution must 
 
 be given." 
 
 Bank v. Weston, 159 F. Y. 211. 
 
 164. 
 Judgment for B. 
 
 The note was given in consideration of the right to make, 
 use and sell a patented article and contained the words, 
 "given for a patent right." 
 
 Such a note or instrument in the hands of any purchaser 
 or holder is subject to the same defenses as in the hands of 
 Hie original holder. 
 
 Neg. Inst. Law (chap. 43, Laws 1909), 
 
 sec 330. 
 Eaton & Gilbert on Com. Paper, p. 690. 
 
 165. 
 
 Judgment for B. C was not an indorser but a guarantor, 
 and as such was not entitled to notice of dishonor. 
 
 "A person placing his signature upon an instrument, other- 
 wise than as maker, drawer or acceptor is deemed to be an 
 indorser, unless he clearly indicates by appropriate words his 
 intention to be bound in some other capacity." 
 
 ISTeg. Inst. Law (chap. 43, Laws 1909), 
 
 see. 113. 
 Eaton & Gilbert on Com. Paper, p. 412 ; 
 
 Id., p. 445. 
 
 166. 
 
 Judgment for C. It was A's duty to disclose his principal 
 
 "A person, even though making an agreement for another, 
 
 makes himself personally liable thereon if he contracts in 
 
 his own name without disclosing his principal, although the 
 
 other party to the contract may suppose that he is acting as 
 
 ^^ ■ De Eemer v.' Brown, 165 K Y. 419. 
 
Bab Examinations and Cottesbs of Study. 249 
 
 He must have actual knowledge. 
 
 Cobb V. Knapp, Yl N. Y. 348. 
 
 167. 
 
 Judgment for A, 
 
 The agent had no right to sell his own stock to his prin- 
 cipal ; it was a breach of duty and the contract is subject to 
 rescission, irres^gotive of any question of intentional fraud 
 
 or actual injury. . 
 
 •' Conkey v. Bond, 36 N. Y, 427. 
 
 ffaussig V. Hart, 58 N. Y. 425. 
 
 168. 
 
 !A] is discharged. At the time A called upon B to sue C, 
 the debtor, the latter was solvent; the notice was explicit 
 and the surety, having become prejudiced by the subsequent 
 insolvency of 0, is discharged. 
 
 Maier v. Oanavan, 8 Daly, 272. 
 
 Marsh v. Dunckel, 25 Hun, 167. 
 
 Thompson v. Hall, 45 Barb. 214. 
 
 Hunt V. Purdy, 82 W. Y. 486. 
 
 169. 
 
 D can recover from A and B but not from the surety. 
 His obligation was to the principal named in the bond, and 
 when the bond was paid, he had no further concern or 
 interest in the transaction. The payment was made with- 
 out hia request or promise to repay. 
 
 Elmendorph v. Tappen, 5 Johns. 176. 
 
 170. 
 
 The policy should be paid to A. A policy issued upon 
 the life of a husband, payable to the wife, if living, if not 
 living, to their children is assignable by the wife with the 
 written consent of the husband. The consideration for the 
 assignment, to wit, their " joint debt," was sufficient. 
 
 Anderson v. Goldsmidt, 10'3 JST. Y. 620. 
 
 Miller v. Campbell, 140 IST. Y. 457. 
 
 Dom. Eel. Law (L. 1909, chap. 19), sec. 
 52. 
 
 150 K Y. 269, 169 N. Y. 199. 
 
250 Bab Examinations aitd Coueses of Studt. 
 
 171. 
 
 A is entitled to recover his insurance, $2,000 on the horses 
 and $2,000 on the cattle. He is not entitled to recover the 
 insurance on the sheep which were mortgaged. 
 
 '' Having made the property distinct subjects of insurance 
 by separately valuing it, by distributing the insurer's risk 
 among the several subjects of insurance, and limiting its 
 risk among the several subjects of insurance, and Umiting its 
 risk as to each, the parties to the contract will be deemed 
 to have intended as many distinct insurances as there may 
 be subjects of insurance; and the avoidance of the policy 
 by breach of its condition as to one of the subjects of insur- 
 ance will not have the effect of avoiding it as to the others, 
 in the absence of language clearly indicating that such was 
 the intention of the parties." 
 
 Am. Artistic Gold S. Co. v. Glens Falls 
 Ins. Co., 1 Misc. 117. 
 
 Enowles V. Am. Ins. Co., 66 Hun, 220; 
 affd., 142 ]Sr. Y. 641; 61 App. Div. 
 850. 
 
 172. 
 
 The transaction was a sale, and A had no rights. Hour 
 from the identical wheat was not to be delivered. 
 
 Foster v. Pettibone, 1 N. Y. 433. 
 Vide Mack v. Snell, 140 N. Y. 195 and 
 201. 
 
 173. 
 
 The jeweler has no lien. The vase was to be delivered 
 to A on January 2, 1902, and A was to pay him $500 for his 
 services within sixty days thereafter. This credit prevented 
 the jeweler from obtaining a lien. 
 
 " Where a particular time of payment is fixed by the con- 
 tract which is or may be subsequent to the time when the 
 owner is entitled to a return of the property, there can be 
 no lien." 
 
 Wiles L. Co. V. Hahlo, 105 K Y. 234, 
 Morgan v. Congdon, 4 N. Y. 552. 
 
Bab Exami3!tations and Coueses of Study. 251 
 
 174. 
 
 B cannot offset his claim for damages. 
 
 The contract was one to "thereafter mamifactnre 5,000 
 watch cases." 
 
 There was no warranty which survived acceptance, nor 
 anj] fraud or concealment. There were no latent defects; 
 the defects were determined upon inspection and when B, 
 with knowledge of their condition, accepted the same, and 
 neither returned nor offered to return them, he lost his 
 claim for damages, if any. 
 
 Smith V. Coe, lYO K Y. 162. 
 Bierman v. aty Itills Co., 151 K Y. 
 
 482. 
 Oarleton v. Lombard Ayrea Co., 149 
 
 N. Y. 137. 
 
 175. 
 
 B can So nothing; Be has no claim. The contract fa void 
 by the statute of frauds. 
 
 It was not in writing and being for the sale and delivery 
 of goods for the price of more than $50, it was void because 
 the buyer did not receive or accept part or all of such goods 
 at the time, nor at the time pay any part of the purchase 
 money. 
 
 Personal Property Law (chap. 45, Laws 
 
 1909), sec. 31, subd. 6. 
 
 176. 
 
 Yes; the exception was well taken. 
 "The declarations of one partner after dissolution of 
 the firm, not made in the business of winding up, and not 
 in relation to any transaction or dealing connected with the 
 dissolution of the partnership, are inadmissible against a 
 copartner." 
 
 Nichols V. White, 85 N". Y. 531. 
 Desbecker v. Cauffman, 169 K". Y. 
 
 553. 
 Encyc. of Evid., vol. 1, p. 580. 
 
252 Eas ExAMiNATioirs Aim Coubses of Study. 
 
 177. 
 
 The objection was that the account-books were not compe- 
 tent nor proper as being the declarations of the party in hia 
 own favor. The Court properly ruled them out. If the 
 tradesman had then proven that the books were his books of 
 account, kept by him in his business as a retail grocer, and 
 contained items of account kept in the ordinary course of 
 book accounts, that there were regular dealings between the 
 plaintiff and defendant, that some of the articles mentioned 
 had been delivered and that he kept honest, and fair books 
 of account by some person who had dealings with him and 
 settled his accounts thereon, and that he kept no clerk, the 
 books would have been received as admissible evidence for 
 the consideration of the Court or jury. 
 
 Vosburgh v. Thayer, 12 Johns. 461. 
 
 Smith V. Eentz, 131 N. Y. 169, 171. 
 
 178. 
 
 The deed proves itseK, as an ancient document after 
 thirty years. The deed, however, must be free from just 
 grounds of suspicion and must come from the proper cus- 
 tody or have been acted upon, so as to afford some corrobo- 
 rative proof of its genuineness. 
 
 1 Greenleaf on Evidence, sec. 570. 
 Donohue v. Whitney, 133 IST. Y. 186, ' 
 Stephens Digest Law Evidence (Beers' 
 ed., K Y.), 315. 
 
 179. 
 
 The ruling was wrong. 
 
 In a case where the question of fraud or deceit in a writ- 
 ten contract is in issue, oral evidence of the acts and decla- 
 rations of the parties prior to the execution of the contract 
 touching the fraud or deceit are admissible. 
 
 Vol. 14 Encyc. of Law (2d ed.), 494. 
 Howison V. Alabama Coal & Iron Co., 
 
 70 Fed. Kep. 683. 
 Koop V. Handy, 41 Barb. 464. 
 
Bab Examinations and Cotteses of Stitdt. 253 
 
 180. 
 
 The ground of the objection waa that A was endeavoring 
 to impeach his own witness. The objection was sustained. 
 
 "A party ma;;^ contradict his own witness as to a fact 
 material ia the case, although the effect of the proof may be 
 to discredit him; but he cannot impeach him, although sub- 
 sequently called as a witness for the adverse party, either by 
 general evidence or by proof of contradictory statements out 
 
 of Court." 
 
 Coulter V. Am. Merchtsi. Un. Exp. Co., 
 
 56 K Y. 585. 
 
 181. 
 
 Forgery in tie first degree. 
 
 Penal Law, (Laws 1909, chap. 88), sec. 
 885. 
 182. 
 
 No. The confession was not voluntary having been made 
 after arrest upon the express promise of the officer that if 
 he would confess he would use his influence in his behalf, 
 provided he made disclosures which would be of benefit to 
 the government. 
 
 Cox V. People, 80 IST. Y. 502. 
 
 People V. Ohapleau, 121 K Y. 266. 
 
 1 Greenleaf on Evidence, sec. 219. 
 
 183. 
 
 The conviction will stand. 
 
 A and B confederated to rob O. A, in furtherance of 
 the conspiracy, violently assaulted C so as to enable his 
 confederate B to steal the watch, which he was enabled to 
 do by reason of the force and violence used upon 0. Both 
 were principals and guilty of robbery. B was properlj] 
 convicted. 
 
 Penal Law (Laws 1909, chap. 88), sees. 
 
 2, 2120, 2126. 
 197 K Y. 152. 
 
 184. 
 
 The company is not liable. A was injured by the light- 
 ning which was the proximate cause of his injury, and not 
 
254 Bae Examinations and Coueses of Study. 
 
 by the defect in the locomotive, which was the remote cause. 
 The defect in the locomotive neither invited nor caused the 
 lightning nor did it come because of the delay. 
 
 Vide Laidlaw v. Sage, 158 N. Y. 98 
 et seq. 
 
 185. 
 
 No; the Judgment will not be affirmed. 
 The release of one of two or more joint tort feasors is a 
 discharge of all. 
 
 Barrett v. Third Ave. E. K. Co., 45 
 
 K Y. 628. 
 Mitchell V. Allen, 26 Hun, 543. 
 Kolk V. National Surety Co., 176 N. Y. 
 233. 
 
 186. 
 
 (1) The first proposition is correctly charged. An insane 
 person is liable for his torts the same as a sane person. 
 
 (2) The second proposition is incorrectly charged. 
 
 An insane person is liable only for compensatory dam- 
 ages, and not for punitive damages for assault and battery, 
 because he is incapable of intention which is malice. 
 Williams v. Hays, 143 N. Y., 442. 
 Krom V. Schoonmaker, 3 Barb. 647. 
 
 187. 
 
 The daughter, D, takes the house and lot specifically de- • 
 vised to her; B, the son, all the remainder of the property 
 including the stock of the X Bank found in the envelope; 
 the daioghter, C, takes nothing. There arose what is 
 known in the law as " an ademption." 
 
 " If a testatrix devises real estate and sells the same be- 
 fore the vnll takes effect, the proceeds of the sale will be- 
 come personal estate, and no court oan substitute the money 
 received bjj th« testatrix for the land devised." 
 
 Ametrano v. Downs, 170 K Y. 391. 
 
 Adams V. Winne, 7 Paige Ch. 97. 
 
 Beck V. McQillis, 9 Barb. 35. 
 
BaE ExAMINATIOiYS AND CoUESES OF StUDY. 255 
 
 The direction on tlie envelope that it was "his will and 
 intention that the stock should go to 0, in place of the real 
 estate for which it stood and represented and of which it 
 was the avails," was ineffectual as a gift for it was not known 
 nor was it delivered prior to the father's death, 
 
 No claim is made that the memorandum was either a will 
 
 or a codicil thereto or a substitutionary clause therein; if 
 
 either, it would be invalid for the want of proper execution. 
 
 Eedfield's Surrog. Prac. (6th ed.), sec. 
 
 751, pp. 628, 629. 
 
 188. 
 
 Where an unmarried man disposes of his whole estate by 
 will and thereafter marries and has issue of the marriage, 
 which or his wife are alive at the time of his death, the sub- 
 sequent marriage revokes his will. 
 
 Kedfield's Surrog. Prac. (6th ed.), sec. 
 228, pp. 191-192. 
 A therefore died intestate and his real estate descended 
 to his two children share and share alike subject to the 
 ■v5;idow's dower. 
 
 Eeal Property Law (chap. 52, Laws 
 
 1909), sec. 190. 
 Decedent Estate Law (chap. 18, Laws 
 1909), sec. 81. 
 
 189. 
 
 B cannot recover his legacy ; C being a minor can. 
 Such a clause in a will is valid and will be upheld (Mat- 
 ter of Stewart's Will, 5 IST. Y. Supp. 32 ; 29 Encyc. of Law 
 [1st ed.J, p. 483), except as against infants who contest a 
 will not personally but by guardian. 
 
 Woodward v. James, 44 Hun, 96. 
 Bryant v. Thompson, 59 Hun, 545. 
 Id, 128 N. T. 426, 432. 
 
 190. 
 
 •A wins. 
 
 " He who comes into equity must come with clean hands." 
 An offensive and detrimental stable, erected and main- 
 tained on a lot next adjoining A's family residence, would 
 be a nuisance and when B procured from A written contract 
 
256 Bab Examiitations and Coueses ov Study. 
 
 of sale in reliance on his false representation that he wished 
 to buy it so as to erect thereon a residence for himself and 
 family, when as matter of fact he bought it with int«nt that 
 an offensive and detrimental stable should be erected 
 thereon, he was guilty of a fraud, directly connected with 
 the matter ia litigation, and will not be decreed specific 
 performance. y.^^ ^^ ^^ ^ -^^ -^^^^^ ^ -^^^ (2d 
 
 ed.), p. 164. 
 
 191. 
 
 B being a party to the action is entitled to have the prop- 
 erty sold in the inverse order of alienation. 
 
 He can have the judgment in the action provide that the 
 third parcel, the property of the owner, be aSld first.; if that 
 be insufficient, then that the property sold to C be next dis- 
 posed of; if there then remains any sum due and unpaid on 
 the judgment, that his parcel be finally sold. 
 
 N. T. Life Ins. & Trust Co. v. Milnor, 
 
 1 Barb. Oh. 353. 
 Woods V. Spalding, 45 Barb. 602. 
 
 192. 
 The steel owned by B was sacrificed to save the cargo and 
 the vessel at a time when both were in imminent danger of 
 being lost or destroyed by reason of the perils of the sea, and 
 he is entitled, under the law of general average, to contribu- 
 tion from all that was saved out of the ship, freight and 
 cargo, to make good his general average loss. 
 
 Nelson v. Belmont, 21 N. Y. 36. 
 Harris v. Moody, 30 N. Y. 268. 
 
 The miaxim involved is " Equality is equity." 
 
 Vol. XI Am. & Eng. Encyc. of Law (2d 
 
 ed.), p. 187. 
 Vol. 7, id., pp. 328, 329. 
 
 193. 
 
 The note is invalid. It required corporate action, to wit, 
 a resolution of the board of directors, to authorize the trea»- 
 nrer to execute the note for a special purpose. Corporate 
 
Bab Examinations and Cotjbses of Sttjdt. *' 
 
 action to bind the corporation can only; be had by appropri- 
 ate action of its governing board; that is, by the coU€otiy« 
 authority of the board of directors acting as a board. Such 
 action was not had here, and, therefore, the treasurer had 
 no power to make the note in question. 
 
 People's Bank v. St. Anthony's E. C. 
 Church, 109 N. T. 512. 
 
 194. 
 
 The corporation being unable to pay its obligations as 
 they become due in the regular course of business was in- 
 solvent, and all officers and directors were forbidden to trans- 
 fer any of its property to any of its officers, directly or in- 
 directly, for the payment of any debt or upon any other 
 consideration than the full value of the property paid in 
 cash. 
 
 The transfer of the property to A, its president, under 
 the circumstances was invalid. A is bound to account there- 
 for to the creditors, stockholders or other trustees of the X 
 corporation; in addition, he is personally liable to the cred- 
 itors and stockholders of the corporation to the full extent 
 of any los they may respectively sustain by the transaction. 
 Stock Corp. Law (chap. 61, Laws 1909), 
 sec. 66. 
 
 195. 
 
 It is unlawful for a foreign stock corporation, other than 
 a moneyed corporation, to do business in this State without 
 having first procured from the iSecretary of State a certifi- 
 cate that it has complied with all the requirements of law, 
 as set forth in sections 15 and 16 of the General Corporation 
 Law (chap. 28, Laws 1909), as amended. 
 It must also pay a license fee. 
 
 Sec. 181 Tax Law (chap. 62, Laws 
 1909). 
 
 196. 
 
 He can, as corespondent named in the complaint, at any 
 time before the entry of judgment, appear either in person 
 or by attorney, demand of plaintiff's attorney a copy of the 
 17 
 
258 Bab Examikations and Coueses of Sttjbt.. 
 
 summons and complaint, and defend such action so far as 
 the issues affect him. 
 
 Sec. 1757, Code Civ. Proc. 
 
 197. 
 Yes, he can. Not having the money, it is not necessary^ 
 for him to restore. If he had possession of any of the pur- 
 chase price when he disaffirms or after he became of age, 
 the rule would be different. 
 
 " The right (of the infant) to repudiate is based upon 
 the incapacity of the infant to contract, and that incapacity 
 applies as well to the avails as to the property itself, and 
 when the avails of the property are improvidently spent or 
 lost by speculation or otherwise during minority, the infant 
 should not be held responsible for inability to restore them. 
 To do so would operate as a serious restriction upon the 
 right of an infant to avoid his contract, and in many cases 
 would destroy the right altogether." 
 
 Green v. (xreen, 69 K. Y. 553. 
 Rice V. Butler, 25 App. Div. 388, 392. 
 MacGreal v. Taylor, 167 TJ. S. 688 and 
 note. Book 42, Co-op. Ed. U. S. 
 Eepts., p. 326. 
 
 198. 
 
 It is the husband's obligation to furnish suitable support 
 for his wife. 
 
 He is not obliged to support her, however, when she will- 
 fully deserts and refuses to live with him. The tradesman 
 knew of this and if he supplied her with necessaries duiing 
 that period he cannot hold the husband therefor. "When 
 on January 1, 1900, she offered to return to her husband, 
 his liability to furnish her with necessaries was thereby 
 revived, and he is liable for those furnished thereafter. 
 
 McGahay v. Williams^ 12 Johns. 293. 
 McOutchen v. McGahay, 11 Johns. 281. 
 Bloomingdale v. Brinckerhoff, 2 Misc. 
 
 49. 
 Daubney v. Hughes, 60 K Y. 187. 
 
Bab Examinations and Coueses of Study. 26& 
 
 199. 
 
 The property of the X Electric Railway being necessary 
 to the proper use and enjoyment of its franchises, it cannot 
 be condemned by right of eminent domain by another rail- 
 road corporation for its corporate purposes without an ex- 
 press act of the Legislature permitting it to do so. 
 
 Matter Boston & Albany E. E. Co., 63 
 
 K Y. 575. 
 S. E. T. Co. V. Mayor, 128 K Y. 10. 
 People ex rel. v. Thompson, 98 'E. Y. 
 
 6 at 11. 
 Matter of Pet. of IST. Y., L. & W. E. E. 
 
 Co., 99 ]Sr. Y. 12. 
 Matter of City of BujBFalo, 68 IST. Y. 167. 
 Matter of N. Y. 0. & H. E. E. Co., 77 
 K Y. 249. 
 
 200. 
 
 The aentence is invalid. 
 
 " A statute which purports to authorize the prosecution, 
 trial and punishment of a person for an offense previously 
 committed, and as to which all prosecution, trial, and punish- 
 ment were at the time of the passage of such statute already 
 barred, according to pre-existing statutes, is ex post facto." 
 
 12 Am. & Eng. Encyc. of Law (2d ed.) 
 532. 
 
 In this State that rule has been applied to offenses com- 
 mitted prior to the passage of the act extending the tame 
 within which indictments may be found. 
 
 People y. Lord, 12 Hun, 282. 
 
 Citing Wharton's Crim. Law, Vol. 1, sec. 
 
 444a. 
 Vide Carpenter v. Shimer, 24 Hun, 465. 
 People V. O'lSTeil, 109 N. Y. 251. 
 
260 Bab Examinations and Couesbs of Study. 
 
 201. 
 SUPEEME COURT, ALBAITT OOTJNTT. 
 
 JANE DOE, an Infant, by A. B., her Guard- 
 ian, Plaintiff, 
 
 against 
 
 JOHN STILES, Defendant. 
 
 The plaintiff complaming of the defendant alleges: 
 
 I. That the plaintiff is an infant under the age of twenty- 
 one years. 
 
 II. That on the day of , 190. . at Albany, 
 
 N. Y., upon application duly made on her behalf, the above- 
 named A B was, by an order of this Court, duly ajq>ointed 
 the guardian of the plaintiff for the purposes of this action. 
 
 in. That heretofore the defendant made his promissory 
 note in writing, dated on the second day of Jaliuary, 1903, 
 at Albany, N. T., and thereby promised to pay to the plain- 
 tiff or to he? order, five hundred dollars ($500.00), three 
 months after said date. 
 
 IV. That no part of said note has been paid. 
 
 Wherefore, plaintiff demands judgment against said de- 
 fendant for five hundred dollars with interest thereon from 
 April 3, 1903, besides the costs of this action. 
 
 X Y Z, 
 Plaintiff's Attorney, 
 
 Office and Post-office Address: , Albany, IT. Y. 
 
 The complaint of an infant by his guardian must set forth 
 the appointment of the guardian with certainty as to time, 
 place, and power of appointment. 
 
 Grantmann v. Thrall, 44 Barb. 173. 
 Stanley v. Chappell, 8 Cow. 235. 
 Hulbert V. Young, 13 How. Pr. 413. 
 Code Civ. Proc, sees. 468, 469, 470, 472. 
 
 202. 
 Keep it. An answer to a verified complaint in an action 
 for libel need not be verified. The defendant need not verify 
 
Bab Examinations and Coukses of Study. 2G1 
 
 in a case where he would be privileged from testifying as a 
 witness concerning an allegation or denial contained in the 
 pleading. 
 
 Code Civ. Proc, sec. 523. 
 
 Blaisdell v. Kaymond, 6 Abb. Prac 
 Eepts. 148, 
 
 203. 
 
 Motion denied. 
 
 " The answer did not put in issue the allegations of the 
 complaint that defendant made the excavation which caused 
 the injury, and that the same was in a public street; and, 
 therefore, plaintiff was not required to prove the same on 
 the trial." 
 
 Clark V. DiUon, 97 K Y. 370. 
 
 204. 
 A reply is necessary, where the answer contains a counter- 
 claim and the plaintiff does not demur, and in a case where 
 an answer contains new matter constituting a defense by 
 way of avoidance, the Court directs the plaintiff to reply 
 to the new matter. 
 
 If a reply is necessary and the plaintiff fails to reply, 
 apply, upon notice, for judgment thereon. 
 
 Code Civ. Proc., sees. 514, 515, 616. 
 
 205. 
 
 " Where the injunction order was granted without notice, 
 the party enjoined may apply, upon the papers upon which 
 it was granted, for an order vacating or modifying the in.' 
 junction order. Such an application may be made, without 
 notice, to the judge or justice who granted the order, or 
 who held the term of Court where it was granted; or to a 
 term of the Appellate Division of the Supreme Court. It 
 cannot be made without notice, to any other judge, justice 
 or term, unless the applicant produces proof, by afBdavit, 
 that, by reason of the absence or other disability of the 
 judge or justice who granted the order, the application can- 
 not be made to him; and that the applicant will be exposed 
 
2G2 Bab Examiwatiows aotj CoTmsEs of Study. 
 
 to great injury, by the delay required for an application 
 upon notice. The affidavit must be filed with the clerk; and 
 a copy thereof, and of the order vacating or modifying the 
 injunction order, must be served upon the plaintiff's attorney 
 before that order taies effect." 
 
 Code Civ. Proc, sec. 626. 
 
 206. 
 
 Obtain a writ of prohibition. 
 
 "The office of a writ of prohibition is to prevent the 
 exercise by a tribimal possessing judicial powers of jurisdic- 
 tion over matters not within its cognizance, or to prevent 
 it from exceeding its jurisdiction in matters within its cog- 
 
 Thomaon v. Tracy, 60 N". Y. 31. 
 Code Civ. Proc, sees. 2091, 2102. 
 
 3, ) 
 
 207. 
 
 COMMOITWEALTH OF MASSACHUSETTS, 
 County of Suffolk, 
 
 On this . . . . . . daji of , 1903, before me person- 
 ally appeared A B, to me personally iknown, and known to 
 me to be the individual described in and who executed the 
 foregoing instrument and acknowledged that he executed the 
 same for the uses and purposes therein mentioned. 
 
 X Y, 
 Justice of the Peace, or N'otary Public. 
 
 Attach county clerk's certificate as to Massachusetts offi- 
 eer'a authority. 
 
 Vide 'Real Property Law (chap. 5'2 Laws 
 1909), sees. 299 et seq. 
 
 208. 
 
 A's mortgage is ahead of O's judgment. An unrecorded 
 mortgage has priority over a subsequent docketed judgment, 
 unless there be some facts making a superior equity. 
 
 Weaver v. Edwards, 39 Hun, 233, affd., 
 121 N. Y. 653. 
 
Bab Examinations and Couesbs of Studt. 263 
 
 209. 
 From fljid D. The farm having been devised to the 
 " son and daughter and their heirs to be held in joint tem- 
 ancj," it is subject to the doctrine of survivorship, and when 
 the son died intestate, his estate in the farm passed at once 
 to the daughter, his cotenant, to the exclusion of his son. 
 When the daughter died intestate the title to the farm be- 
 came vested in her two sons B and 0, and when B died in- 
 testate, his share went to his daughter D, who with C owned 
 the entire farm at the time your client desired to purchase 
 it. 
 
 Kent's Com., Vol. 4, pp. *358, *359, 
 
 *360. 
 Eeal Property Law (chap. 52, Laws 
 
 1909), sec. 66. 
 Willard on Eeal Estate, pp. lY7, 183. 
 Decedent Estate Law (chap. 18, Laws 
 1909), sec. 81. 
 
 210. 
 A cannot recover from B the $1,000 paid for tiie reason 
 fiat he himself repudiates the contract. 
 
 A contract, made as well for the sale of real as of personal 
 property, which is entire, founded upon one and the same 
 consideration, and is not reduced to writing is void, as well 
 in respect to the personal as to the real property, the subject 
 of the contract. 
 
 De Beerski v. Paige, 36 N. Y. 537. 
 Thayer v. Kock, 13 "Wend. 53. 
 Harsha v. Eeid, 45 K Y. 420. 
 
 ** If one pays money, or renders service or delivers prop- 
 erty upon an agreement condemned by the statute of frauds 
 he may recover the money paid in an action for money had 
 and received, and he may recover the value of his services 
 and of his propertjR upon an implied assumpit to pay, pro- 
 vided he can show that he has been ready and willing to 
 perform the agreement, and the other party has repudiated 
 or refused to perform it." 
 
 Dayi V. N. Y. C. K. K. Co., 51 N. Y. 690. 
 Eeed v. McConnell, 133 N. Y. 435. 
 
264 Bas ExAMmATioNs Ain> Goubsbs of STTn>T. 
 
 211. 
 
 Yes. "Not kiM)wing that A was married at the time of the 
 promise, ^e can sue at onoe; no demand or refusal is neces- 
 aarg, it being impossible for A to perform. 
 
 Oammerer v. MuUer, 60 Hun, 578. 
 
 Kerns v. Hageiibueble> 17 N. Y. Supp. 
 367. 
 
 Blattmacher v. Saal, 29 Barb. 22. 
 
 Johnson v. Caulkins, 1 Johns. Cases, 116. 
 
 Willard v. Stone, 7 Cow. 22. 
 
 Windmuller v. Pope, 107 K Y. 674. 
 
 Burtis V. Thompson, 42 N. Y. 246. 
 
 212. 
 
 Apply tbe money on tie second or partnership execu- 
 tion. Partnership property is not liable for individual debts 
 until the partnership debts are paid. 
 
 Eighth Nat. Bank v. Fitch, 49 K Y. 539. 
 
 Muir V. Leitch, 7 Barb. S41. 
 
 Kelly V. Scott, 49 K Y. 595. 
 
 Menagh v. Whitwell, 52 N. Y. 146. 
 
 213. 
 
 No. A is not estopped; the sale having been made without 
 notice or knowledge of A's acts or declarations, it was not 
 made in reliance upon the same, nor in belief that A was a 
 partner. A did not enter into the transaction at the time 
 of its consummation. 
 
 Griffin V. Carr, 21 App. Div. 51. 
 Malloncy v. Horan, 49 N. Y. 111. 
 
 214. 
 
 A is not liable on the note, having transferred the same 
 without indorsement, but he is guilty of a misdemeanor for 
 having transferred a promissory note, not having the words, 
 "given for a patent right," written or printed legibly and 
 prominendj] on tbe face of such note above the signature 
 
Bae Examinations and CotrESES of Study. 265 
 
 thereto, knowing the consideration of such note to consist 
 in whole or in part of the right to make, use and sell a certain 
 invention claimed by him to be patented. 
 
 Sec. 330, Wego. Inst. Law (chap. 43, 
 Laws 1909). 
 
 215. 
 
 Judgment for the X Bank. D, one of hia partners, was 
 notified of the nonpayment and dishonor of the note. 
 
 " Where the parties to be notified are partners, notice to 
 any] one partner is notice to the firm, even though there has 
 been a dissolution." 
 
 ISTego. Inst. Law (chap. 43, Laws 1909), 
 
 sec. lYO. 
 Eaton & Gilbert on Com. Paper, p. 491. 
 ECubbard v. Matthews, 54 N. Y. 43, 60. 
 
 216. 
 
 Judgment for 0. O was not called upon to inquire, it was 
 A's duty to disclose his principal. 
 
 "A person, even though making an agreement for an- 
 other, makes himself personally liable thereon if he contracts 
 in his own name without disclosing his principal, although 
 the other party to the contract may suppose that he is act- 
 ing as agent." 
 
 De Eemer v. Brown, 165 K Y. 419. 
 
 was entitled to actual knowledge of the name of A'a 
 principaL 
 
 Cobb V. Knapp, 71 N. Y. 348. 
 
 217. 
 
 B can recover his commission from both A and 0. 
 
 •He brought them together and they then personally 
 negotiated with each other and concluded the sale. B did 
 all that he was employed to do, viz., to find a purchaser for 
 each, for his house upon terms and conditions to be agreed 
 
266 Bab Examinations and Coueses of Sttjdt. 
 
 upon after they met- There was nothing inconsistent nor 
 improper in his conduct, and there was " no violation of 
 duty in such case in agreeing for commissions from each 
 party upon a bargain being struck, or in failing to notify 
 each party of his employment by the other." 
 
 Knauss v. K. B. Co., 142 N". Y. 75. 
 
 Gracie v. King, 56 App. Div. 203. 
 
 218. 
 
 C 18 entitled to the benec&t of all collaterals received by 
 the creditor, although he did not originally rely upon them, 
 or know of their existence, and is entitled in equity to the 
 benefit thereof as against B who surrendered the same to A 
 without his knowledge or consent. 
 
 Vail V. Foster, 4 Comst. 312. 
 TTiggins V. Wright, 43 Barb. 461. 
 Merchants & Mfrs. Bank v. Cumings^ 
 
 149 K T. 364. 
 Cowen's Treatise, Vol. 1 (5th ed.), eec. 
 457. 
 
 219. 
 
 A can only recover $5,000, the amount he paid. Ho is 
 entitled to indemnity only, and cannot recover the amount 
 extinguished by his payment. 
 
 Bonney v. Seely, 2 Wend. 482. 
 
 220. 
 
 The policy was valid, nor was it a wager policy. 
 " Where a person takes out a policy of insurance upon hia 
 own life, and the amount is made payable to another hav- 
 ing no interest in the life * * * the beneficiary may 
 hold and enforce the policy, if it was valid in its inception 
 and was procured in good faith." 
 
 Olmstead v. Keyes, 85 K T. 5fl8. 
 Steinback v. Diepenbrock, 158 I^. T. 24. 
 dassey v. Met. life Ins. Co., 84 Hun, 
 250. 
 
Bab Examinations and Coubses of Study. 267 
 
 221. 
 
 The company is liable. A deed absolute in form, but in 
 fact given as security for a debt, is a mortgage by operation 
 of law (Mooney v. Byrne, 163 N. Y. 91), and is not such a 
 change in the title or possession of the subject of insurance 
 as would avoid the policy. 
 
 Barry v. Hamburg Bremen Fire Ins. Co., 
 no N. T. 1. 
 
 222. 
 
 The transaction was a bailment, and A can recover his 
 property from the sheriff. 
 
 A was to receive from the miller 2,000 barrels of flour 
 ground out of the identical wheat delivered to him for that 
 purpose. 
 
 "Where a contract is made with a manufacturer to deliver 
 to him raw materials to be returned manufactured, the con- 
 tract is one of bailment and not of sale, and the title to the 
 article remains when manufactured in the origiaal owner. 
 
 Foster v. Pettibone, 7 N". Y. 433. 
 Madk V. Snell, 140 K Y. 193. 
 
 223. 
 
 Yea. By proving that the fire occurred through the negli- 
 gence of the warehouseman; he is liable under those cir- 
 cumstanoea notwithstanding his receipt which exempted him 
 from liability for loss or damage to the stored goods by fire. 
 
 Germania Fire Ins. Co. v. M. 0. E. R. 
 
 Co., 72 K Y. 90. 
 Claflin V. Meyer, 75 lif. Y. 260. 
 Stewart v. Stove, 127 K Y. 506. 
 Canfield v. B. & O. E. E. Co., 93 K Y. 
 
 536, 537. 
 
 224. 
 B can offset his claim for damages. There was an agree- 
 ment that the watch cases which were in esse would be 
 Kke the sample exhibited and that amounts in law to a " war- 
 
268 Bab Examinations awd Couesbs of Stitdt. 
 
 ranty" which survives acceptance, with knowledge of the 
 breach thereof. 
 
 Brigg V. Hilton, 99 1^. Y. 517. 
 Tairbank Canning Oo. v. Metzger, 118 
 
 K Y. 260. 
 Zabrtskie v. C. V. E. K. Co., 131 N. Y. 
 
 72. 
 Kent V. Friedman, 101 N. Y. 616. 
 Mack V. Snell, 140 N. Y. 203. 
 
 225. 
 
 A Is entitled to bring an action immediately for the breach 
 without tendering delivery. 
 
 WindmuUer v. Pope, 107 K Y. 674. 
 
 " When the vendee of personal property, under an execu- 
 tory contract of sale, refuses to complete his purchase, the 
 vendor jnay keep the article for him and sue for the entire 
 purchase price; or he may keep the property as his own and 
 sue for the differenos between the market value and the 
 contract price; or he may sell the property for the highest 
 sum he can get, and after crediting the net amoimt received, 
 sua far the balance of the purchase money." 
 
 Ackerman v. Eubens, 167 K Y. 408. 
 Van Brocklen v. Smeallie, 140 IT. Y. 70. 
 
 226. 
 
 Judgment should be reversed as to B. In tort the admis- 
 sions of one joint tort feasor are not admissible against the 
 other, luiless conspiracy has been established. 
 
 Wilson V. O'Day, 5 Daly, 354. 
 
 De Benedetti v. Manchin, 1 Hilt. 213. 
 
 Carpenter v. Shelden, 5 Sandf. (Sup. 
 
 Ct.) 77. 
 1 Encyc. Evid. 58&. 
 
 227. 
 
 The Court should direct the jury to acquit. A child of 
 the age of seven years and under the age of twelve years is 
 
Bab ExAMiNATioirs and Courses of Sttjbt. 269 
 
 presumed to be incapable of crime, but the presumption may 
 be removed by proof that he had sufficient capacity to under- 
 stand the act or neglect charged against him, and to know 
 its wrongfulness. Tlie district attorney failed to make proof 
 of capacity. 
 
 Penal Law (Laws 1909, chap. 88), sec. 
 
 817. 
 iStone V. Dry Dock, etc., R. E. Co., 115 
 N. Y. 109, 161 K Y. 323. 
 
 228. 
 
 The objeclaon was sustained. 
 
 It does not appear that the wife's statement was made at 
 the time of the assault, and if it was made thereafter, it 
 would not be a part of the res gestae. Her dying declara- 
 tion is not admissible. Such declarations are admissible only 
 in homicide cases under certain restrictions. 
 
 Spatz V. Lyons, 55 Barb. 476. 
 
 229. 
 
 Objection overruled. 
 
 " Where a party calling a witness is surprised by testimony 
 contrary to his expectations, he may be pea:mitted to inter- 
 rogate the witness in respect to previous declarations made 
 by the latter inconsistent with his testimony, for the purpose 
 of probing his recollection, and by showing the witness that 
 he is mistaken, inducing him to correct his evidence, or by 
 recalling to his mind the statements previously made, draw- 
 ing out an explanation of his apparent inconsistency, and also 
 for the purpose of showing the circumstances which induced 
 the party to call him, and such inquiries will not be excluded 
 simply because they may result unfavorably to the witness. 
 But where the sole effect of an affirmative answer to a ques- 
 tion asked by a party to his own witness wiU be to discredit 
 the witness, it is properly excluded." 
 
 BuUard v. Pearsall, 53 N. Y. 230. 
 See also 1 Greenleaf Ev., sec. 444. 
 Putnam v. U. S. 162, TJ. S. 687. 
 
270 Bab Examinations and Coubses of Study. 
 
 230. 
 
 No. The proof was competent, not to show special dam- 
 ages, as none had been alleged, but as bearing upon the hurt- 
 ful tendency of the libel and the general damage. 
 
 Morey v. M. J. Assoc, 123 N. Y. 207. 
 Gates V. N. T. Eecorder Co., 155 N. T. 
 232. 
 231. 
 By attachment. 
 
 Andrews v. Andrews, 2 Johns. Cases, 109. 
 Jackson v. Mann, 2 Caines, 92. 
 People V. Vermilyea, 7 Cow. 108. 
 Matter of O'Toole, 1 Tuck. Surr. 39. 
 He may also be punished as for a criminal contempt, or 
 indicted for misdemeanor. 
 
 Code Crim. Proc, sees. 611,617,618,619. 
 Judiciary Law (Laws 1909, chap. 35), 
 
 sees. 750, 751, 752, 754. 
 Penal Law, sec. 600 (Laws 1909, chap. 
 88). 
 232. 
 Eobbery in the first degree. Although the purse was 
 obtained by stealth and not by force, B was at the time 
 armed with a dangerous weapon and used the same to retain 
 possession of the stolen property. 
 
 Penal Law, sees. 2121, 2124 (Laws 
 1909, chap. 88). 
 233. 
 Yes. The burden of proof was upon the prosecution to 
 establish the guilt of the prisoner beyond a reasonable doubt, 
 and the charge of the Court as made was erroneous. 
 
 In case of a reasonable doubt whether his guilt is satis- 
 factorily shown, the prisoner is entitled to an acquittal. 
 Code Crim. Proc, sec. 389. 
 People V. Eiordan, 117 IST. Y. 73. 
 People V. Sehryver, 42 E". Y. 1. 
 People V. Guidici, 100 E". Y. 509. 
 Poole V. People, 80 IST. Y. 646. 
 Miles V. U. S., 103 U. S. 304. 
 
Bab Examinations anb Courses of Study. 271, 
 
 S34. 
 
 The company waa not liable. The act of the condactor in 
 deitaining the passenger was willful misconduct, but in so 
 doing, he was not acting in the course of his employment. 
 
 Mulligan v. JST. Y. & E. B. E. Co., 129 
 
 K Y. 506. 
 Palmeri v. M. E. Co., 133 K Y. 261. 
 McLeod V. N. Y. C. & S. L. R E. Co., 
 
 72 App. Div. 119. 
 Nowacik v. M. St. E. Co., 166 IST. Y. 440. 
 Hart V. M. St. E. Co., 65 App. Div, 495. 
 Collins V. Butler, 83 App. Div. 18. 
 
 235. 
 
 '£. could not have prevented judgment. The owner of 
 personal property which has been stolen by another- maj 
 waive the tort and sue the latter for and recover its value 
 upon an implied contract of sale. Where, however, the 
 owner thus elects to treat the transaction as a sale, the title 
 to the property passes to the wrongdoer. Thus when A pre- 
 sented the horse to C, it was his property, and he had a law- 
 ful light so to do, and it was immaterial that C knew the 
 facts concerning A's title. has a defense to the action in 
 replevin and can retain the horse as against the original 
 owner. 
 
 Terry v. Munger, 121 IST. Y. 161. 
 
 Eussell V. McCall, 141 N. Y. 449. 
 
 Disbrow V. "Westchester H. Co., 164 N". 
 Y. 424. 
 
 Btarr Cash Car Co. v. Eeinhart, 2 Misc. 
 116. 
 
 Mcl^utt V. HUkins, 80 Hun, 235. 
 
 236. 
 
 Judgment for B. A claim or demand to recover damages 
 for a personal injury is not assignable. 
 
 Personal Property Law (chap. 45, Laws 
 1909), sec. 41. 
 
12T2 Bab Examinations and Coueses of Study. 
 
 237. 
 
 The will is invalid under the provisions of Decedent 
 Estate Law, section 19, chapter 18, Laws 1909, because 
 it was executed within two months of testator's death. 
 
 Stephenson v. Short, 92 N. Y. 433. 
 
 HoUis V. Drew, 95 E". Y. 166. 
 
 Matter of Lampson, 161 IST. Y. 511. 
 
 238. 
 
 The will of the father, under the circumstances, was not 
 revoked by the birth of the child born after its execution. 
 The after-born child being unprovided for by any settlement, 
 nor in any way mentioned in the will, is entitled to succeed 
 to the same portion of his father's estate as would have de- 
 scended or been distributed to him if such parent had died 
 intestate, and he is entitled to maintain an action against 
 the legatees or devisees, as the case requires, to recover his 
 share of the property. 
 
 Redfield on Surrog. Prac. (6th ed.), 
 
 sec. 229, p. 192. 
 Code Civ. Proc, see. 2727. 
 Decedent Estate Law (chap. 18, Laws 
 1909), sec. 28. 
 
 239. 
 
 A was a married infant of the age of twenty years when 
 she made her will of both real and personal estate. She was 
 competent to make a will of personal property at the time, 
 but not of real property, so that her will was valid as to per- 
 sonal estate, and invalid as to the realty, as to which she 
 died intestate. 
 
 B takes the $10,000 in personal estate under the will. C 
 takes nothing. A, having died intestate as to the real es- 
 tate, leaving a father, and the inheritance not having come 
 to the intestate on the part of the mother, it goes to her 
 
Bae Examinations and Coueses op Study. 273 
 
 father, subject to a tenancy by the curtesy in the intestate's 
 husband, issue of the marriage having been born alive. 
 
 Decedent Estate Law (chap. 18, Laws 
 
 1909), sees. 81-84. 
 Eedfield's Surrogate Prac. (6th ed.), 
 
 sec. 208, p. 164. 
 Hatfield v. Sneden, 54 N. Y. 280, 
 Kent's Com., vol. 4, p. *506. 
 
 240. 
 
 The equitable title was in B at the time of the fire and 
 the loss falls on himy 
 
 Equity regards that as done which ought to have been 
 done. 
 
 Vol. XI Encyc. of Law (2d ed.), pp. 
 
 181, 182. 
 Goldman v. Eoseberg, 116 IST. Y. 85, 
 127 App. Div. 92, a£fd., 197 K Y. 168. 
 
 241. 
 
 A's claim is good. X took his assignment of the mort- 
 gage, subsequent to the prior equity of A arising out of 
 the agreement between A and B. There was no estoppel; 
 the agreement as to priority was valid and X stood in the 
 place of his assignor. 
 
 Collier v. Miller, 137 K Y. 332. 
 
 242. 
 
 Put the claim in judgment, issue execution thereon, have 
 it returned unsatisfied, and then begin a creditor's action to 
 set aside the deed as fraudulent and void as against your 
 client. 
 
 Vide cases generally, Vol. 4 Abb. Cyc. 
 Dig., p. 689, title " Creditor's Suit." 
 
 18 
 
274 Bae Esamii7Atio]!J^s and Coueses of Study, 
 
 Valid. " If the directors shall not be elected on the day 
 designated in the by-laws, or by law, the corporation shall 
 not for that reason be dissolved; but every director shall 
 continue to hold his ofHce and discharge his duties until his 
 successor has been elected." 
 
 Gen. Corp. Law, sec. 28, chap. 28, Laws 
 
 1909. 
 Geneva Min. Springs Co. v. Coursey, 45 
 
 App. Div. 268. 
 Beardsley v. Johnson, 121 IST. Y. 224. 
 Phila., etc., v. Hotchkiss, 82 IST. Y. 474. 
 
 244. 
 
 1^0. The X corporation was not in existence after the 
 merger; he should have sued the consolidated or Z 
 corporation. 
 
 Copp V. Colorado Coal & Min. Co., 29 
 Misc. 109. 
 
 245. 
 
 As a judgment creditor, A had the right to inspect and 
 take extracts from the " stock-book " of the corporation, 
 which contained the names, alphabetically arranged, of all 
 persons who are stockholders of the corporation, showing 
 their places of residence, the number of shares of stock held 
 by them respectively, the time when they respectively be- 
 came the owners thereof and the amount paid thereon. 
 
 He can compel the corporation to produce such book by 
 mandamus. 
 
 People ex rel. Clason v. Nassau Ferry 
 
 Co., 86 Hun, 129. 
 Stock Corp. Law, sec. 32, Laws 1909, 
 ckap. 61. 
 
Bab ExiMiNATioNS and Courses o» Study. 275 
 
 246. 
 
 A should not commenoe his action for divorce without 
 additional testimony. 
 
 " In actions for divorce on the ground of adultery, the 
 confessions of the defendant are always admissible in evi- 
 dence, but to avoid the danger of collusion, the Court before 
 granting the decree will require such corroboration of the 
 confession as to remove all just suspicion of collusion. When 
 that is satisfactorily done the confessions become a sufficient 
 basis for a judgment for divorce." 
 
 Madge v. Madge, 42 Hun, 524. 
 Sigel V. Sigel, 20 N. Y. Supp. 377. 
 
 247. 
 
 The infant is entitled to sue for and recover the reason- 
 able value of his services. 
 
 The express contracts of an infant are voidable at his 
 
 election, but the adult who makes the agreement with him 
 
 is bound thereby xmless th« infant or his guardian regard it 
 
 as a nullity. If an infant agrees to work for a specified 
 
 time, and for a specified amount, he may leave before the 
 
 expiration of the time without cause, and recover for the 
 
 value of his services for the time he labored, without any 
 
 deduction for damages for his breaking his contract, and 
 
 that recovery may be for an amount beyond the contract 
 
 price, if the evidence shows that his services were worth 
 
 more. 
 
 Cowen's Treat., vol. 2, sees. 1013, 1014, 
 
 1018. 
 
 Whitmarsh v. Hall, 3 Denio, 375. 
 
 Gates V. Davenport, 29 Earb. 160. 
 
 248. 
 
 To the husband. It will be observed that the services 
 were irendered in and about the husband's house, and while 
 the wife was engaged in her household duties. She was 
 engaged in no other occupation, rendered them with the 
 knowledge and consent of her husband, and made no per- 
 sonal claim for compensation therefor. 
 
276 Bab Examinations and Coueses of Stttdt. 
 
 The husband, under the circirmstances disclosed, is enti- 
 tled to his common-law right and can avail himself of a 
 profit or benefit from the services of his wife. 
 
 Porter v. Dunn, 131 N. Y. 314. 
 
 249. 
 
 The office of overseer of the jroor of the village of X, 
 not being a constitutional office, can be abolished by the 
 legislature during the incumbency of an occupant (People 
 ex rel. v. Whitlock, &2 N. T. 191; Koch v. Mayor, 152 K 
 Y. 72; People ex rel. v. Peck, 73 App. Div. 89), but the act 
 in question in that regard is void in that it is contrary to 
 the provisions of section 16, article III of the Constitution 
 which reads that "No private or local bill, which may be 
 passed by the l^slature, shall embrace more than one sub- 
 ject and that shall be expressed in the title." 
 
 People ex rel. Oorscadden v. Howe, 177 
 N.Y. 
 
 250. 
 
 The act is valid. 
 
 It is competent for the legislature by a validating act to 
 cure irregularities in assessment proceedings so as to vali- 
 date retrospectively any proceedings which it might have 
 authorized in advance. 
 
 It was within the legislative power to have declared in the 
 act authorizing the local improvement that one insertion 
 in one newspaper was a sufficient advertisement for bids 
 to do the work in question, and having that power in the 
 first instance it can declare an assessment valid that was 
 based on such a publication, although the original act called 
 for more. 
 
 Vol. VI Encyc. of Law (2d ed.), p. 940. 
 Hatzung V. Syracuse, 92 Hun, 203. 
 TifFt V. Buffalo, 82 N. Y. 204. 
 People ex rel. Kilmer v. McDonald, 69 
 
 K Y. 362. 
 W. I. B. Co. V. Town of Attica, 119 
 N. Y. 204. 
 
Bab Examinations and CouESia of Study. 377 
 
 251. 
 COUET, COUNTY, 
 
 TITLE. 
 
 The defendant, for answer to the complaint of the plaintifl 
 in the above-entitled action, alleges, that before this action, 
 
 and on the .... day of , 190. ., this defendant paid 
 
 to the plaintiff dollars in full payment of the account 
 
 for goods sold and delivered, mentioned and described in the 
 complaint herein. A B, 
 
 Attorney for Defendant 
 Office and Post-office Address, 
 
 IST Y 
 
 • ••••••••••■••••a XI ■ •■- • 
 
 Payment is an affirmative defense and must be specifically 
 pleaded in the answer ; it cannot be proven under a general 
 denial in the case stated. 
 
 McKyring v. Bull, 16 K Y. 297. 
 Gabay v. Doane, 77 App. Div. 416. 
 Lent V. K Y. & M. R. Co., 130 E". Y. 
 504, 511. 
 
 252. 
 
 Mandamus. Apply for a peremptory writ of mandamus 
 directed to the public board to compel action on its part. The 
 proceeding is provided for and regulated by sees. 2067 et seq. 
 of the Code of Civil Procedure. 
 
 People ex rel. Harris v. Commissioners, 
 
 149 K Y. 26. 
 People ex rel. Grannis v. Eoberts, 163 
 
 N". Y. 70. 
 People ex rel. Linton v. Brooklyn H. K. 
 Co., 69 App. Div. 549. 
 
 253. 
 Bring an action in the usual form for rent against the 
 president or treasurer of the club. It is an unincorporated 
 
278 Bab Examinations and Cotjeses of Study. 
 
 association of seven or more members having a full set of 
 officers. The procedure is provided for in the Code of Civil 
 Procedure, sees. 1919 et seq. 
 
 254. 
 
 A takes all. His execution was delivered first to the sheriff. 
 Personal property, subject to levy, is bound by the execution 
 from the time of the delivery thereof to the proper officer to 
 be executed, and the one first delivered has preference in pay- 
 ment, notwithstanding that a levy is first made by virtue of 
 an execution subsequently delivered. 
 
 Code Civ. Proc, sees. 1405, 1406. 
 
 255. 
 
 Yes. " The mere bringing of a former action upon the 
 same state of facts does not necessarily preclude a party from 
 bringing a seonnd action, and the institution by a party of a 
 fruitless action, which he has not the right to maintain, will 
 not preclude him from asserting the rights he really pos- 
 sessea." 
 
 McITutt V. Hilkins, 80 Hun, 235. 
 
 256. 
 
 Yes. A defendant in order to avail himself of the defense 
 of the statute of limitations is required in all cases to plead it. 
 Code Civ. Proc, sec. 413. 
 Minzesheimer v. Bruns, 1 App, Div. 
 
 324. 
 Hulbert v. Clark, 128 N. Y. 295. 
 Sage V. Culver, 14Y N. Y. 241. 
 
 257. 
 
 The entire crop belongs to the landlord, who is not liable 
 for the value of the seed. 
 
 The tenant knew that his lease expired on April 1, 1902, 
 and he planted the wheat knowing it could not be harvested 
 until after the expiration of his lease. 
 
 Eeeder v. Sayre, 70 K Y, 180. 
 
Bab Examinations and Coiebses or Study. ,279 
 
 258. 
 
 The deed is valid as to the two first life estates, viz., thosa 
 of B and 0. On the death of C, G takes the fee. The estates 
 subsequent to those of the two persons first entitled thereto 
 are void, and on the death of those persons, the remainder 
 takes effect in the same manner as if no other life estates had 
 been created. 
 
 Eeal Property Law (chap. 52, Laws 
 1909), sec. 43. 
 
 259. 
 
 D's unrecorded mortgage takes precedence over A's deed. 
 A had actual notice of D's mortgage, and that takes the place 
 of the notice presumed by the recording acts. 
 
 Eeal Property Law (chap. 52, Laws 
 1909), sec. 291, Gerard on Titles to 
 Eeal Estate (5th ed.), pp. 701- 
 715. 
 
 860. 
 
 A wins. "A common carrier is bound to exercise reason- 
 able care and prudence in the transportation of property, and 
 is liable for loss resulting from a failure in this respect, al- 
 though by his contract the transportation is at * the owner's 
 risk' " 
 
 Canfield v. B. & O. E. E. Co., 93 N. Y. 
 
 532. 
 Kenney v. N. Y. C. & H. E. E. Co., 125 
 N. Y. 425. 
 
 261. 
 
 Yes ; can recover. 
 
 " Where one party proposes by mail a contract with an- 
 other residing at a distance, and the latter accepts it and 
 deposits his acceptance in the post-office, addressed and to bo 
 transmitted to the former, the contract is complete. 
 
 " The party may make it a condition that the proposed con- 
 tract shall not be obligatory upon him until he receives notice 
 of its acceptance, or unless he receives such notice by a spe- 
 
280 Bae ExiMiNATioisrs xsd Cotteses of Study. 
 
 cified time; but if he do not, the contract is binding on him 
 from the time the acceptance is deposited for transmission 
 to him by mail, although he never receive it." 
 
 Vassar v. Camp, 11 N. T. 441. 
 
 Watson V. Eussell, 149 N. Y. 391. 
 
 C. P. I. Co. V. A. Ins. Co., 127 N. Y. 618. 
 
 B and can compel A to account to the firm for the value 
 of the lease taken in hia own name, which inures to the bene- 
 fit of the firm. 
 
 " One member of a copartnership cannot during its exist- 
 ence, without the knowledge of his copartners, take a renewal 
 lease for his own benefit, of premises leased by the firm, upon 
 which it has made valuable improvements, and by the joint 
 efforts of Hie members made the good will valuable and en- 
 hanced the rental value of the premises, and this although 
 the term of the renewal lease does not begin until after the 
 copartnership has expired by its own limitations." 
 
 Mitchell V. Eeed, 61 K Y. 123. 
 
 Britton v. Ferrin, 171 N". Y. 244. 
 
 Eobinson v. Jewett, 116 N. Y. 51, 53. 
 
 Butler V. Prentiss, 158 K Y. 49. 
 
 263. 
 
 Judgment for the creditor. C is liable as a partner for the 
 reason that he was interested in the profits of the business as 
 profits and not as a means of compensation. 
 
 Leggett V. Hyde, 58 K Y. 272. 
 Orvis V. Curtiss, 157 N. Y. 657. 
 Magovem v. Robertson, 116 N. Y. 65. 
 First Nat. Bank v. Gallaudet, 122 K Y. 
 655. 
 
 264. 
 wins. B by taking an assignment of all the maker's 
 property, before maturity, for the express purpose of meeting 
 the note, or for his protection against the same, impliedly 
 
Bak Examinations and Couesbs of Stxtdt. 281 
 
 waives his right to a notice of dishonor upon the ground that 
 he had obtained everything which notice was intended to en- 
 able him to obtain. 
 
 Merchants' Bank v. Griswold, 7 Wend. 
 
 165, 166. 
 Eaton & Gilbert on Com. Paper, p. 523, 
 and cases cited. 
 
 265. 
 B wins. 
 
 " Where the holder of a check procures it to be accepted 
 or certified, the drawer and all indorsers are discharged from 
 liability thereon." 
 
 Nego. Inst. Law (chap. 43, Laws 1909% 
 
 sec. 324. 
 Eaton & Gilbert on Com. Paper, p. 635. 
 First Nat. Bank v. Leach, 52 K Y. 350. 
 Thomson v. Bank, 82 N. Y. 1. 
 
 No, the defense is not good. 
 
 It was A's duty to have disclosed, at the time the property 
 was knocked down to him, or when he paid the 10 per cent., 
 the name of his principal, not having done so he is personally 
 liable on the contract. 
 
 McComb V. Wright, 4 Johns. Ch. 659. 
 Cobb V. Knapp, 71 K Y. 348. 
 McClure V. Cent Trust Co., 165 K Y. 
 
 110, 128. 
 De Eemer v. Brown, 165 N. Y, 410. 
 
 267. 
 
 'A can recover. C had no actual authority to collect the 
 note, and its mere possession unindorsed did not vest him with 
 apparent authority nor authorize payment to him. 
 
 Doubleday v. Kress, 50 K Y. 410. 
 
 Wangner v. Grimm, 169 N. Y. 429. 
 
282 Bae ExAMmATions and Cotteses of Study. 
 
 268. 
 
 Demurrer sustained. 
 
 The bank was not privy to the fraud and Roe was not dis- 
 charged thereby. 
 
 Coleman v. Bean, 1 Abb. Ct. App. Dec 
 S94. 
 
 269. 
 
 A is right and is liable as surety for the rent of tie 
 extended term. 
 
 .The holding over was continuous and under the lease, the 
 stipulated rent of wliich C guaranteed. 
 
 Ihifau V. Wright, 25 Wend. 636. 
 Eice V. Loomis, 139 Mass. 302, 1 K E. 
 548. 
 
 270. 
 
 Judgment for the X Company. 
 
 The fire having occurred through the wrongful and crimi- 
 nal act of B, A had the primary right of indemnity against 
 him or against the insurance company and could collect of 
 either, but having first collected of B, he cannot have a sec- 
 ond satisfaction of the insurance company. 
 
 Clement on Fire Insurance, p. 363. 
 
 16 Am. & Eng. Encyc. of Law (2d ed.), 
 
 p. 841. 
 Connecticut Fire Ins. Co. v. Erie E. R. 
 
 Co., 73 N. Y. 399. 
 
 271. 
 
 A wins. The insurance company probably defended on 
 the ground that the policy was a wager policy; but it was 
 not. A had an insurable interest in the life of B at the 
 time of the taMng out of the policy to the amount of 
 $20,000, the value of his bonds then in B's possession, which 
 B might lose, steal or destroy. Under the circumstances it 
 
BaS ExAMINATIOlirS AlTD CotTESES OF StuDT. 283 
 
 was not necessary that A should have been damnified by B'g 
 death. 
 
 eteinbaok v. Diepenbrock, 158 N. Y. 30. 
 
 Ferguson v. Mass. Mut. Life Ins. Co., 32 
 
 Hun, 306, 311; affd., 10^ N. Y. 647. 
 
 CJook on Life Insurance, pp. 101, 102, 
 
 103. 
 
 272. 
 
 A wins. Bailor and bailee. 
 
 The contract was entire, to saw the 100 logs, and then 
 each was to have haK of the boards sawed out of the same. 
 Until the contract was completed the title to the boards and 
 logs unsawed remained in A. When B sold the boards in 
 question he was guiltj^ of conversion and liable to A for 
 their value. 
 
 Pierce v. Schenck, 3 Hill, 28. 
 Mack V. SneU, 140 N. Y. 193. 
 
 273. 
 
 Judgment for B. Bailor and bailee. 
 The moment A drove the horse beyond the village of O, 
 he transcended his contract of hire and became liable for 
 all damages absolutely, although caused by inevitable acci- 
 dent or without his fault. 
 
 7 Am. & Eng. Encyc. of Law (2d ed.), 
 
 p. 312. 
 3 idem., p. 753; 5 Cyc. 176. 
 
 274. 
 
 To B. The title to the horse passed to B on delivery; 
 the act of returning the same within the ten days was a con- 
 dition subsequent, which might, if performed, have defeated 
 the title vested, but as it was not duly exercised B forfeited 
 the right and the sale became absolute. C had the right 
 to levy and sell the horse under the circumstances narrated. 
 CosteUo V. Herbst, 18 Misc. 179. 
 21 Am. & Eng. Encyc. of Law (1st ed.), 
 p. 647. 
 
284 Bab Examinations akd Couesbs of Study. 
 
 275. 
 
 Judgment for the j&weler. On A's refusal to give hia 
 Bote as agreed, the sale became absolute and the debt for 
 tiifl same beoame due forthwith. 
 
 OorHes v. Gardner, 2 Hall (K Y.), 345. 
 21 Am. & Eng. Encyc of Law (1st 
 ed.), 639. 
 
 276. 
 The Court should exclude the evidence. What A heard 
 the bystanders say after the accident, and in the absence of 
 the flagman, was clearly hearsay and irrelevant. 
 
 Eelska V. E". T. 0. E. K Co., 152 N. Y. 
 329. 
 
 277. 
 The Court should exclude the evidence. It does not ap- 
 pear therein that the declarant was conscious of impending 
 death, and was without expectation or hope of recovery. 
 The fact that the attending physician knew that A was 
 about to die, does not establish the condition of A's mind 
 or that he had given up all hope of life when he made the 
 ■tatemeata. 
 
 Stephen's Dig. Law of Ev. (Beers' K Y. 
 
 ed.), arts. 26, 9Y, pp. 131, 372. 
 People V. Chase, 79 Hun, 296; affd., 143 
 N. Y. 669. 
 
 278. 
 
 The testimony should be admitted. The customer having 
 expressly referred the merchant to the cartman for informa- 
 tion in regard to the matter in dispute, is bound by the lat- 
 ter's declarations in the same manner and to the same extent 
 as if they were made by himself. 
 
 1 Grreenleaf's Ev., sec. 182. 
 
 1 Encyc. of Ev., p. 561. 
 
 Stephen's Dig. of Law of Ev. (Beers' K 
 Y. ed.), art. 19, p. 113. 
 
 lehman v. Frank, 19 App. Div. 442. 
 
£aB ExAMINATIOI«rS AITD COUBSBS OF StuDT. 285 
 
 f79. 
 
 On proof by your client that he has no present recollection 
 of the items, independent of the memorandum, and that the 
 memorandum is correct and was made by him when the 
 transaction was fresh in his mind, the same can be used to 
 refresh his memory, in connection with and as auxiliary 
 to the oral testimony of the witness. 
 
 Cowen's Treat., vol. 2 (5th ed.), sec. 
 
 1474. 
 Stephen's Dig. of Law of Ev. (Beers' N. 
 
 T. ed.), art. 136, p. 461. 
 Eialsey v. Sinsebaugh, 15 N. Y. 485. 
 Marcly v. Shults, 29 IST. T. 346, 351. 
 Howard v. McDonough, 77 IST. Y. 592. 
 Wise V. Phoenix, 101 N. Y. 637. 
 iRussell V. Hudson E. R Co., 17 K Y. 
 
 134. 
 People V. McLaughlin, 160 N. Y. 392, 
 iN'at. Ulster Oo. Bank v. Madden, 114 
 
 K Y. 284. 
 [Wilson V. Kings Co. E. R. E. Co., 114 
 N. Y. 498. 
 
 280. 
 
 The objection should be sustained. The slander consisted 
 in stating generally that the plaintiff was a thief, and evi- 
 dence of general reputation in that regard is alone compe- 
 tent; defendant cannot prove specific acts under the circum- 
 stances stated. 
 
 1 Greenleaf on Ev., sec. 55. 
 
 Hilton v. Oarr, 40 App. Div. 490, 493. 
 Hart V. McLaughlin, 51 App. Div. 413. 
 People V. Gi©enwald, 108 N. Y. 301. 
 
 281. 
 
 Yea. The previous expression or formation of an opinion 
 or impression by a juror in reference to the guilt or inno- 
 cence of the defendant or a present opinion or impression 
 in reference thereto, is not a sufficient ground of challenge 
 
286 Bae ExA-MHiTATIONS AND CoTJESES OF StTJBT. 
 
 for actual bias, to any person otherwise legally qualified, if 
 he declare on oath that he believes that such opinion or 
 impression will not influence his verdict, and that he can 
 render an impartial verdict according to the evidence, and 
 the Court is satisfied that he does not entertain such a pres- 
 ent opinion or impression as would influence his verdict. 
 
 Endeavor by examination of the juror to have him declare 
 himself within that rule. 
 
 Code Crim. Proc, sec. 376. 
 
 283. 
 A was guilty of assault in the second degree. He pointed 
 a loaded pistol at complainant, who was at the time within 
 shooting distance, with intent to do bodily harm. 
 
 Penal Law, sec. 242 (Laws 1909, chap. 
 
 88). 
 People v. Conner, 53 Hun, 353. 
 People V. McKenzie, 6 App. Div. 199. 
 People V. Ryan, 55 Hun, 214. 
 283. 
 Yes. Upon the trial of an indictment a prisoner may be 
 convicted of the crime charged therein or of a lesser degree 
 of the saine crime. Larceny is an element of robbery, which 
 is but larceny by force, violence or fear, and the jury had 
 the power to convict of larceny from the person if it saw 
 fit so to do. 
 
 Murphy v. People, 3 Hun, 114. 
 2 Bish. Crim. Law (8th ed.), sec. 1156. 
 Penal Law, sees. 610, 2120 (Laws 1909, 
 chap. 88). 
 284. 
 Although the person injured was a trespasser, he was not 
 an outlaw who could be wilfully killed or injured. The 
 railroad company owed him the obligation not to injure him 
 by active misconduct or wantonness ; it must not be grossly 
 negligent, other than that the railroad company owed him no 
 duty of care or vigilance. The question assumes that the 
 presence of the trespasser was unknown, and could not have 
 been reasonably anticipated, otherwise the railroad company 
 
Bab, Examinations and Coueses of Study. 28*7 
 
 would be required to exercise reasonable care to prevent 
 injury. 
 
 Vide 21 Am. & Eng. Encyc. of Law 
 
 (2d ed.), 472. 
 Sterger v. Van Sicklen, 132 IST. Y. 499. 
 Walsh T. F. K. Co., 145 N. Y. 301, 183 
 N. Y. 390, 183 N. Y. 67; 131 App. 
 Div. 885, 140 App. Div. 687, 140 
 App. Div. 341, 198 N. Y. 108, 109. 
 
 285. 
 
 The law does not fix any arbitrary period (in civil ac- 
 tions) when an infant is deemed capable of exercising judg- 
 ment and discretion, that is, when it becomes sui juris. " It 
 depends upon many things, such as natural capacity, physical 
 conditions, training, habits of life and surroundings. These 
 and other circumstances enter into the question. It be- 
 comes, therefore, a question of fact for the jury where the 
 inquiry is material," as it does in this case, the infant being 
 seven years of age. 
 
 Stone V. Dry Dock, etc., 115 IST. Y. 10®, 
 110. 
 
 Tucker v. IST. Y. 0., 124 N. Y. 316. 
 
 286. 
 
 A cannot recover. B was under no legal obligation to 
 disclose his special knowledge as to the whereabouts of the 
 lost horse; he was under no special obligation by confidence 
 reposed or otherwise, and had no legal relation either to 
 A or to the animal. He said or did nothing to mislead A, 
 who sold at his ovra risk, and cannot recover. 
 
 Bench v. Sheldon, 14 Barb. 66. 
 
 287. 
 
 Yes. The widow was not put to her election and was 
 entitled to dower in addition to the provisions made for her 
 in the will. 
 
 "Dower is never excluded by a provision for the wife 
 except by express words or necessary implication. Where 
 there are no express words there must be on the face of the 
 will a demonstration of the intent of the testator that the 
 
288 Bab Examhtatious and Cotjbsbs of Study. 
 
 widow shall not take both dower and the provision. Such 
 demonstration is furnished only where there is a clear in- 
 compatibility arising on the face of the will, between a 
 claim of dower and a claim to the benefit of the proviaon. 
 The intention to put the widow to an election between dowei 
 and the provision may not be inferred from the extent of the 
 
 provision. Eonvalinka v. Schlegel, 104 N". Y. 126. 
 
 Kimbel v. Kimbel, 14 App. Div. 570. 
 doss V. Eldert, 30 App. Div. 339. 
 Matter of Grotrian, 30 Misc. 23. 
 Matter of Gordon, 172 N. Y. 26. 
 Horstman v. Flege, 172 N. Y. 381. 
 
 288. 
 
 The grandchildren bom before the death of A take the 
 entire estate, each one-quarter, to the exclusion of the grand- 
 child bom after his death. Title vested at testator's death 
 to those then in being. 
 
 Doubleday v. Newton, 27 Barb. 431. 
 
 289. 
 
 B, as an heir-at-law and person interested in the probate 
 of the wiU, may bring an action in the Supreme Court for 
 the county in which probate was had, to determine the 
 validity or invalidity of the probate. The action is triable 
 by a jury and must be commenced vsdthin two years after 
 the will has been admitted to probate, except that persons 
 within the age of minority, of unsound mind, imprisoned or 
 absent from the State, may bring such action two yeara 
 after such disability has been removed. 
 
 C!ode Giv. Proc, sec. 2653a. 
 
 290. 
 
 No. A cannot recover. He knew that the stock had 
 reached $150 a ^are^ the price at which he had instructed 
 bis brokers to seU, who told him at that time that they had 
 not sold, for the reason that the market looked strong and 
 they thought the stock would reach a higher price. The 
 
Bak Examinations and Cotjeses of Study. 239 
 
 principles of natural justice required A at that time to have 
 sjx)ken concerning the broker's determination to hold for a 
 higher price and to have forbidden it if he did not approve. 
 He could not wait events to determine whether the broker's 
 course would result advantageously or otherwise and then 
 speak and make his election. He is now estopped. "He 
 who has been silent as to his alleged rights when he ought, 
 in good faith, to have spoken, shall not be heard to speak 
 when he ought to be silent." 
 
 Vol. XI Am & Eng. Encyc. of Law (2d 
 ed.), pp. 427, 428. 
 
 Hope V. Lawrence, 50 Barb. 258. 
 
 291. 
 
 "No; the action is in affirmance of an unlawful contract. 
 "A court of equity will not determine the respective rights 
 and interests of persons arising out of an unlawful agree- 
 ment, but will leave the parties where it finds them in all 
 cases where the action is in affirmance of such an 
 
 asrreement," 
 
 ^ Unckles v. Colgate, 148 N. Y. 52 ». 
 
 292. 
 
 If the injured person was induced to settle his oause of 
 action by reason of the fraud or deceit of the attorney of 
 the railroad company, he can bring an action in equity to 
 rescind the contract, but the court will require the status 
 quo to be restored before relief will be granted. He will 
 be compelled to pay bactk what he received on the settlement, 
 or tender it and keep the tender good. "He who seeks 
 equity must do equity." 
 
 Vandervelden v. Chicago & IT. W. Ry. 
 
 Co., 61 Fed. Rep. 54. 
 Vol. 11 Am. & Eng. Encjc. of Law (2d 
 ed.), p. 160. 
 
 293. 
 
 The city has no remedy; the contract was ultra vires anJd 
 unexecuted upon both sides. 
 19 
 
290 Bab Examinations and Coubses of Study. 
 
 " Contracts of corporations are ultra vires when they in- 
 volve adventures outside of and not within the scop© or 
 powers given by their charter. The defense of ultra vires 
 is available to the corporation in all cases of executory con- 
 tracts, unless it would defeat justice or accomplish a legal 
 wrong." 
 
 Jemison v. C. S. Bank, 122 K Y. 136. 
 Bath Gas Hght Co. v. Claffy, 151 K Y. 
 
 31. 
 Vought V. East Bldg. & Loan Assn., 172 
 K Y. 518. 
 
 294. 
 
 N'o; the attorney will not recover. The contract was 
 fraudulent and void under the statute, which declares that 
 " when the directors of any corporation for the first year of 
 its corporate eixistence shall hold over and continue to be 
 directors after the first year, because of their neglect or 
 refusal to adopt the by-laws required to enable the stockhold- 
 ers to hold the annual election for directors, aU their acts 
 and proceedings while so holding over, done for and in the 
 name of the corporation, designed to charge up on it any 
 liability or obligation for services of any such director, or 
 any officer, or attorney or counsel appointed by them, and 
 every such liability or obligation shall be held to be fraudu- 
 lent and void." 
 
 Stock Corp. Law (Laws 1909, chap. Gl), 
 sec. 27. 
 
 295. 
 
 By applying to an Appellate Division of the Supreme 
 Court, held in the Department, in which it is proposed to 
 construct the road, for the appointment of three commission- 
 ers to determine whether such railroad ought to be constructed 
 and operated. 
 
 Eailroad Law (Laws 1910, chap. 481), 
 sec. 174. 
 
Bab ExAMmATioNS and Courses of Studt, 291 
 
 296. 
 
 The wife has no rights under the circumstances stated. The 
 money which the wife saved without her husband's knowledge 
 out of the money which he furnished to her for the sole pur- 
 pose of paying the running expenses of the house, which was 
 the husband's obligation, was and remained his property, and 
 the horse, carriage and harness which she bought therewith 
 were his property also and subject to levy and sale un- 
 der an execution against him. 
 
 Aaronson v. McOauley, 46 St. Rep. 564. 
 
 297. 
 A and B, the husband and wife, were tenants by the en- 
 tirety of the real estate; this tenancy is founded upon the 
 marital relation, and was severed by the divorce a vinculo, 
 and each thereupon took a fee in one-half share of the real 
 estate as tenants in common. 
 
 Stelz V. Shreck, 128 JST. Y. 263. 
 Jooss V. Fey, 129 K Y. 201. 
 
 B has no dower in her husband's share, the divorce having 
 been granted to the husband. 
 
 Code Civ. Proc, sec 1760. 
 
 On the death of A his son, D, takes the fee of his father's 
 one-half, subject to the dower right of his mother, C. 
 
 Decedent Estate Law (chap. 18, Laws 
 1909), sec. 81. 
 
 298. 
 
 The charge is not correct. It does not state the rule 
 governing the husband's liability for the torts of his wife 
 of the character set forth in the question. It is statutory 
 and as follows : 
 
 " Her husband is not liable for such acts (torts named 
 including injuries to the person) unless they were done by 
 his actual coercion or instigation; and such coercion or in- 
 stigation shall not be presumed, but must be proved." 
 
 Dom. Eel. Law (Laws 1909, chap. 19), 
 sec. 57. 
 
292 Bae Examinations and Coueses of Study. 
 
 299. 
 
 The entire assets must he first applied to the payment of 
 its outstanding bills. 
 
 " In case of the insolvency of any bank or banMng associa- 
 tion, the bill holders thereof shall be entitled to preference 
 in payment, over all other creditors of such bank or 
 association." 
 
 N. T. Const, of 1894, art. Vm, sec. 8. 
 
 300. 
 
 The appellant succeeds. The .I'ury, which was the ex- 
 clusive judge of all questions of fact, acquitted the prisoner, 
 and the presiding judge had no power to set the verdict 
 aside as against the weight of evidence, nor could he be again 
 tried for that would put him twice in jeopardy. 
 
 Code Crim. Proc, sees. 419, 420. 
 
 Penal Law, sec. 32 (Laws 1909, chap, 
 88). 
 
 ]Sr. Y. Const., art. 1, sec. 6. 
 
 People V. Cowling, 84 Iv^. Y. 478. 
 
 People V. Cignarale, 110 IT. Y. 27. 
 
 People V. McCarthy, 110 N. Y. 315. 
 
 301. 
 
 COUET. 
 
 Teial Desieed in County. 
 
 A, Plaintiff, 
 against 
 
 B, Defendant. 
 
 "■ Summons. 
 
 To the above named defendant: 
 
 You are hereby summoned to answer the complaint in this 
 action, and to serve a copy of your answer on the plaintiff's 
 attorney within twenty days after the service of this sum- 
 mons, exclusive of the day of service; and in case of your 
 
Bae Examinations and Coueses of Study. 293 
 
 failure to appear, or answer, judgment will be taken againat 
 you by default, for the relief demanded in the complaint. 
 
 Dated, , 190. . 
 
 . . . .1 , Plaintiff's Attorney, 
 
 Office address, , N. Y. 
 
 Post Office address, , N. Y. 
 
 (Code Civil Procedure, sec. 418.) 
 
 Indorsement upon summons: 
 
 "According to the provisions of section .... of chapter 24 
 of the Laws of 1910, known as the Forest, Fish and Game 
 Law " (or as the case may be) . 
 
 The summons is in the usual form, except '" in an action 
 to recover a penalty or forfeiture, given by a statute, if a copy 
 of the complaint is not delivered to the defendant with a 
 copy of the summons, a general reference to the statute must 
 be indorsed upon the copy of the summons so delivered, in 
 the following form : 'According to the provisions of,' etc. ; 
 adding such a description of the statute, as will identify it 
 with convenient certainty, and also specifying the section, 
 if penalties or forfeitures are given, in different sections 
 thereof, for different acts or omissions." 
 
 (Code Civil Procedure, sec. 1897.) 
 
 302. 
 
 No. After a partnership has been dissolved by mutual 
 consent or otherwise, a member of the partnership can com- 
 pound for a partnership debt and be exonerated therefrom by 
 a release of the indebtedness or other instrument exonerating 
 him therefrom executed by the creditor to the compounding 
 debtor. Such an instrument does not impair the creditor's 
 right of action against the other members of the firm or his 
 right to take any proceedings against the latter. B, liow- 
 ever, may make any defense or counterclaim or have any 
 other relief against X to which he would have been entitled, 
 if the composition had not been made, and may require A 
 to contribute his ratable proportion of the partnership debts, 
 as if he had not been discharged. 
 
 Debtor and Creditor Law (Laws 1909, 
 chap. 17), sees. 230, 231, 232, 233. 
 
294 Bae Examinations and Coukses of Study. 
 
 303. 
 
 B's plea is not good. The demands mentioned were 
 reciprocal, and the accounts were " mutual, open and cur- 
 rent." 
 
 " In an action brought to recover a balance due upon a 
 mutual, open, and current account, where there have been 
 reciprocal demands between the parties, the cause of action 
 is deemed to have accrued from the time of the last item, 
 proved in the account on either side." 
 
 (Code Civil Procedure, sec. 386.) 
 
 The six years' limitation (Code Civil Procedure, sec. 382, 
 subd. 1) began to run from January 1, 1899, the date of the 
 last item in A's account. The action was commenced Janu- 
 ary 1, 1904. 
 
 304. 
 
 Twenty days after the publication for six weeks is com- 
 plete. 
 
 " For the purpose of reckoning the time within which the 
 defendant must appear or answer, service by publication is 
 complete upon the day of the last publication, pursuant to the 
 order ; and service made without the state is complete upon 
 the expiration thereafter of a time equal to that prescribed 
 for publication." 
 
 Code Civil Procedure, sec. 441. 
 Vide also section 440. 
 Market ISTat. Bank v. Pacific ISTat. Bank, 
 89 K Y. 397. 
 
 305. 
 
 Defendant further answering said complaint, alleges that 
 the plaintiff herein is not a corporation. 
 
 " In an action, brought by or against a corporation, the 
 plaintiff need not prove, upon the trial, the existence of the 
 corporation, unless the answer is verified, and contains an 
 affirmative allegation that the plaintiff, or the defendant, as 
 the case may be, is not a corporation." 
 
 (Code Civil Procedure, sec, 1776.) 
 
Bae Examinations and Courses of Study. 295 
 
 306. 
 
 Apply to the court upon notice to both claimants for an 
 order to substitute the claimant who has not sued, as the 
 party defendant in the action in the place and stead of the 
 railroad company and to discharge it from liability upon its 
 paying into court the sum of money found. It is called 
 " Interpleader by Substitution on Order " and is provided 
 for by section 820' of the Code of Civil Procedure. An ac- 
 tion of interpleader can also be maintained in certain cases. 
 The cases are numerous. Vide generally: 
 
 Baltimore & Ohio R. E. Co. v. Arthur, 
 
 90 K Y. 234. 
 Bassett v. Leslie, 123 IST. Y. 396. 
 Hirsch v. Mayer, 165 'E. Y. 236. 
 Bernstein v. Hamilton, 26 App. Div. 
 
 206. 
 Stevenson v. IST. Y. Life, 10 App. Div. 
 
 233. 
 Wells V. National City Bank, 40 App. 
 
 Div. 498. 
 Beebe v. Mead, 101 App. Div. 500. 
 
 307. 
 
 " Where any building, which is leased or occupied, is de- 
 stroyed or so injured by the elements, or any other cause as to 
 be untenantable, and unfit for occupancy, and no express 
 agreement. to the contrary has been made in writing, the 
 lessee or occupant may, if the destruction or injury occurred 
 without his fault or neglect, quit and surrender possession 
 of the leasehold premises, and of the land so leased or occu- 
 pied ; and he is not liable to pay to the lessor or owner, rent 
 subsequent to the time of the surrender." 
 
 Keal Property Law (chap. 52, Laws 
 
 1909), sec. 227. 
 Fowler's Eeal Property Law (2d ed.), 
 p. 626. 
 
 308. 
 
 B is not liable. The landlord made no reply to the tenant's 
 letter. He said nothing ; nor did he notify the tenant that he 
 
296 Bae Examinations and Coueses of Study. 
 
 ■would hold him for the rent and that he would lease the 
 premises for his benefit. He accepted surrender and relet 
 on his own responsibility and cannot recover the rent there- 
 after accruing. 
 
 Underbill v. Collins, 132 IST. Y. 269. 
 
 Gray v. Kaufman Dairy & I. C. Co., 162 
 K Y. 388. 
 
 Crane v. Edwards, 80 App. Div. 333. 
 
 309. 
 
 B is liable for the rent. The tenant in possession of the 
 demised premises wrongfully withheld the same from both 
 A and B. 
 
 " It is the acceptance of a lease, not the acceptance or 
 occupation of the premises, that creates the liability under a 
 covenant to pay rent contained in the lease. 
 
 " The extent of the landlord's implied agreement is that 
 he has a good title and can give a free and unincumbered 
 lease for the term demised, and if the tenant is kept out 
 of possession by the act of any party other than the land- 
 lord, he must resort to his proper remedy to get possession 
 under the lease." 
 
 Smith V. Barber, 96 App. Div. 236. 
 Mirsky v. Horowitz, 46 Misc. 257. 
 
 310. 
 
 Judgment for A. Contract void under the statute of 
 frauds. 
 
 Personal Property Law, chapter 45, 
 
 Laws 1909 (sec. 31, subd. 6). 
 Bennett v. Hull, 10 Johns. 364. 
 
 311. 
 
 Judgment for vendor, under the rule that where a contract 
 is made for the sale and delivery of specified articles of per- 
 sonal property, and the title does not pass to the vendee, the 
 vendor is not liable if the property is destroyed by accident 
 without his fault, so that delivery becomes impossible. The 
 basis of this doctrine is, that there is an implied condition 
 
Bab Examinations and Coueses of Study. 297 
 
 in the contract itself, the effect of which is to relieve the 
 party where, without his fault, performance becomes im- 
 possible. 
 
 Dexter v. Norton, 47 N. Y. 62. 
 
 Kein v. Tupper, 52 N. Y. .550, 556. 
 
 G-oldman v. Rosenberg, 116 JST. Y. 78. 
 
 Stewart v. Stone, 127 IST. Y. 500, 507. 
 
 Lorillard v. Clyde, 142 N. Y. 456, 462. 
 
 Herter v. Mullen, 159 N. Y. 38, 43. 
 190 N. Y. 170. 
 
 312. 
 
 A was liable. By the agreement he had an interest in 
 the profits as such, which were the result of the capital and 
 industry in which the firm was engaged, and as to the cred- 
 itors of the firm he was a partner and jointly liable for the 
 partnership debts. 
 
 Leggett V. Hyde, 58 N. Y. 272. 
 
 Manhattan Brass & Mfg. Co. y. Sears, 
 45 K Y. 797. 
 
 Hackett v. Stanley, 115 K Y. 625, 630. 
 
 Magovemv. Eobertson, 116 jST.Y. 61, 65. 
 
 Bank V. Gallaudet, 122 IST. Y. 655. 
 
 Orvis V. Curtiss, 157 IST. Y. 657, 662. 
 
 313. 
 
 The exception was not well taken. Where a fraud is per- 
 petrated by one of the members of a firm in the transaction 
 or prosecution of a copartnership enterprise, they are all 
 liable, although the others had no connection with, knowl- 
 edge of, or participation in the fraud. 
 
 Chester v. Dickerson, 54 1\. Y. 1. 
 
 Parsons on Partnership, sees. 100, 102. 
 
 Griswold v. Haven, 25 K Y. 595. 
 
 Strang v. Bradner, 114 U. S. 555. 
 
 314. 
 
 Judgment for C. The bonds when presented and trans- 
 ferred to A had no indorsement thereon by the payee and 
 
298 Bar Examinations and Coueses of Study. 
 
 hence were nonnegotiable. ITor was the person presenting 
 them the apparent owner, and not being the apparent owner 
 he could not give a good title even to a bona fide purchaser 
 for value. 
 
 Colson V. Amot, 57 N. Y. 253, cited in 
 Bank v. Bank, lYO IST. Y. 65. 
 
 315. 
 
 Judgment for C. The reasons are, that as B had an op- 
 portunity to know what he signed, but relied upon the state- 
 ment of A without examination, he was, as to a bona fide 
 holder for value, bound by his act and estopped from claim- 
 ing that he intended to sign an entirely different obligation. 
 In other words, his negligence was no defense, and the burden 
 was upon B of showing that he was guilty of no laches or 
 negligence. 
 
 Chapman v. Rose, 56 N. Y. 137. 
 
 Ihitchess Oo. Mut. Ins. Co. v. Hachfield, 
 73 K Y. 226. 
 
 316. 
 
 A should recover, as M had no authority either actual or 
 apparent as agent of A to receive the principal due on the 
 note, and as it was not indorsed, A was not bound by the 
 action of M. 
 
 Doubleday v. Kress, 50 N. Y. 410. 
 
 Smith V. Kidd, 68 IST. Y. 130. 
 
 Brewster v. Carnes, 103 IST. Y. 556. 
 
 Crane v. Gruenewald, 120 iN. Y. 274. 
 
 Central Trust Co. v. Tolsom, 167 IT. Y. 
 287, 285. 
 
 317. 
 
 A was entitled to judgment as B did not claim to own the 
 stock, but only to be acting as agent, and as he had no 
 authority, actual or apparent, to pledge the same, A was net 
 estopped from asserting his title. While the transfer and 
 power of attorney gave B an apparent ownership in case he 
 had claimed title or an apparent authority to sell as agent;, 
 
Bae Examinations and Cotieses of Study. 299 
 
 it did not hold him out as authorized to make a loan or 
 pledge the stock. 
 
 Bank v. Livingston, 74 N. Y. 22-3. 
 Talmage v. Third Nat. Bank, 91 X. Y. 
 
 533. 
 Shaw V. S. H. K Co., 144 N. Y. 220, 
 224. 
 
 318. 
 
 C is not liable. He became surety for the firm of A and 
 B. The death of B dissolved the firm and terminated his 
 liability. 
 
 Manhattan Gas Light Co. v. Ely, 39 
 
 Barb. 174. 
 2 Pars, on Contracts, **, 19, 20. 
 Staats V. Hewlett, 4 Denio, 559. 
 Vol. 27 Am. & Eng. Encyc. Law (2d 
 
 ed.), 459. 
 Brandt, Suretyship, Guaranty (3d ed.), 
 sec. 416; n. 3, sec. 438. 
 
 319. 
 
 B can recover from D one-half of the amount paid by 
 him. At law a surety can recover of his co-surety only his 
 proportion even when one of the sureties has become in- 
 solvent, but in a suit in equity against all the co-sureties, 
 under proof of insolvency, the payment of the amount will 
 be adjudged among the solvent parties in due proportion. 
 Easterly v. Barber, 66 N. Y. 433. 
 Kimball v. Williams, 51 App. Div. 616, 
 
 617. 
 Am. & Eng. Encyc. Law, Vol. 27, p. 485 
 (2d ed.). 
 
 320. 
 
 B can recover. He had an insurable interest in the house 
 because his agreement with A was enforceable. 
 
 2 Parsons on Contracts, *438. 
 
 3 Kent's Com. *37l. 
 Richards on Insurance, 34. 
 
300 BaE EXAMIITATIONS AND COUESES OF StUDT. 
 
 321. 
 
 The insurance company is liable. First, B had an in- 
 surable interest in the life of A. Second, the act stipulated 
 against, death by his own hand or act, " voluntary or other- 
 "wise," is not against accidental death, but covers intentional 
 death ; suicide, whether sane or insane. 
 
 Penfold V. Universal Life Ins. Co., 85 
 K Y. 317. 
 
 322. 
 
 The guest can recover. The innkeeper was an insurer of 
 the safety of the property of his guest brought infra Jiospitum. 
 Hulett V. Swift, 33 N. Y. 571. 
 Wilkins V. Earle, 44 N. Y. 172. 
 Mowers v. Fethers, 61 IST. Y. 38. 
 Adams v. IST. J. Steamboat Co., 151 IST. Y. 
 166. Vide, L. 1855, eh. 421, sec. 1, as 
 amended L. 1897, ch. 305. 
 
 323. 
 
 The railroad company is liable. An accidental fire not 
 caused by lightning is no excuse to a common carrier nor is it 
 within the exception as an act of God. 
 
 2 Kent's Com., *602. 
 
 Miller v. Steam Navigation Co., 10 N. Y. 
 
 431. 
 Chamberlain v. The Western Trans. Co., 
 
 44 N. Y. 307. 
 Lamb v. Camden & Amboy E. K. Co., 46 
 K Y. 286, 287. 
 
 324. 
 
 A is entitled to pay from C. B and C have no rights. 
 Loss falls on B and C. Nothing remained to be done by the 
 seller and delivery was complete. 
 
 Gerard v. Prouty, 34 Barb. 454 (affd. 
 41 K Y. 619). 
 
 325. 
 
 B was entitled to recover. The express warranty survived 
 acceptance. 
 
Bar Examinations and Coueses ov Study. 301 
 
 " Where a machine has been delivered to the vendee under 
 an executory contract of sale, with an express warranty of its 
 capacity, without any agreement as to its retention or return, 
 the vendee does not lose his right to recover damages for the 
 breach of the warranty by returning the machine after dis- 
 covering its ineificiency." 
 
 Hooper v. Story, 155 N. Y. 171. 
 Mller V. Patch Mfg. Co., 101 App. 
 Div. 22. 
 
 326. 
 
 The court should admit the evidence. Plaintiff had the 
 right to contradict his own witness; contradiction is not 
 impeachment. 
 
 " There is a difference between introducing evidence to 
 establish a particular fact contrary to that testified to by a 
 party's witness and evidence introduced to impeach a witness, 
 and we are persuaded that under the law the defendant had a 
 right to contradict the plaintiff in regard to the material 
 facts in this case, although he has weakened his case by 
 bringing out the evidence of the plaintiff under his assurance 
 that she was worthy of belief. (See 1 Greenleaf Evidence 
 (13tb ed.), sec. 443; Hunter v. Wetsell, 84 K Y. 549, 556, 
 and authorities there cited; Becker v. Koch, 104 IS. Y. 394, 
 401, and authorities there cited.)" 
 
 Kuhl V. Heintze, 97 App. Div. 446. 
 
 327. 
 
 Serve on the president or other head of the corporation 
 or the officer of the company in whose custody the books of 
 account are a subpoena duces tecum, at least five days before 
 the day he is required to attend, requiring the production 
 upon the trial of the books of account. Serve upon the presi- 
 dent personally a subpoena without a duces tecum clause. 
 The production of the books can also be compelled by an 
 order requiring their production upon the trials 
 
 Code of Civil Procedure, sees. 867, 868, 
 869. 
 
302 Bae Examinations and Ooueses op Study. 
 
 Pay to each person subpoenaed fifty cents for one day's at- 
 tendance, and if he resides more than three miles from the 
 place of attendance, eight cents for each mile going to the 
 place of attendance. 
 
 Code of Civil Procedure, sec. 852, 3318. 
 
 328. 
 
 The court should admit the evidence. X v^as not a party 
 to the agreement, and was in no way connected with it. The 
 action was not on the agreement nor between the parties 
 thereto. 
 
 " The rule that where an agreement is reduced to writing, 
 it cannot be controverted or varied by parol evidence, ap- 
 l^lies only to the parties to the agreement ; one not connected 
 in any way with the agreement may show by parol what the 
 real transaction was." 
 
 Brown V. Thurber, 77 N. Y. 613. 
 Folinsbee v. Sawyer, 157 IST. Y. 199. 
 
 329. 
 
 The court should admit the testimony. 
 It was competent as tending to show a fraudulent intent. 
 Chisholmv. Eisenhuth,69 App. Div. 134. 
 
 330. 
 
 The court should overrule the objection. 
 The conviction may be proved for the purpose of affecting 
 the weight of X's testimony either by the record or by his 
 cross-examination upon which X (the witness) must answer 
 any proper question relevant to that inquiry, but the party 
 cross-examining is not concluded by the answer to such 
 question. pg^^j ^^^^ ^^^^ 2444 (Laws 1909, chap. 
 
 88). 
 Code Civil Procedure, sec. 832. 
 331. 
 
 Yes. Guilty of a misdemeanor ; of conspiring to commit 
 the crime of burglary. !N"o overt act was necessary under 
 the circumstances disclosed. 
 
 " No agreement except to commit a felony upon the per- 
 
Bae Examinations and Coueses of Study. 303 
 
 son of another, or to commit arson or burglary, amounts to 
 
 a conspiracy, unless some act beside such agreement be done 
 
 to effect the object thereof, by one or more of the parties to 
 
 such agreement." -n. , -.- 
 
 - ^ Penal Law, sees. 580, 583 (Laws 1909, 
 
 chap. 88). 
 
 Code Criminal Procedure, sec. 398. 
 
 332. 
 
 Judgment and sentence invalid. 
 
 " When the defendant appears for judgment, he must be 
 
 asked by the clerk whether he have any legal cause to show 
 
 why judgment should not be pronounced against him." 
 
 Code Criminal Procedure, sec. 480. 
 
 Allocution is necessary. 
 
 Messner v. People, 45 N. Y. 1. 
 People V. McClure, 148 N. Y. 101. 
 Ball V. U. S., 140 U. S. 118. 
 
 333. 
 
 The refusal to charge as requested was erroneous. 
 Intent is a necessary factor in the crime of murder, and 
 the jury may take into consideration the fact that the ac- 
 cused was intoxicated at the time, in determining the pur- 
 pose, motive or intent with which he committed the act and 
 consequently the grade or degree of his crime. 
 
 Penal Law, sec. 1220 (Laws 1909, chap. 
 
 88). 
 People V. Corey, 148 E". Y. 476, 
 
 334. 
 
 Judgment for B. An action will lie for a false representa- 
 tion made as to an existing fact, with fraudulent intent, 
 where a direct injury results therefrom, and where a con- 
 tract would have been fulfilled but for the fraudulent repre- 
 sentations of a third person, although it could not have been 
 enforced. ^^^^^^^ ^_ p^^^^^ 2 y^^^^_ ggg^ 
 
 Kice V. Manlev, 66 IS. Y. 82, 85. 
 
 Rich V. N. Y. C. & H. R E. Co., 87 
 
 K Y. 382, 399. 
 E'ew York L. I. Co. v. Chapman, 118 
 
 :N. Y. 288, 294. 
 
S04 Bab Examinations and Coueses of Study. 
 
 335. 
 
 Judgment for M. Tlie removal of the gates did not work 
 such a forfeiture as to justify an assault and battery by B 
 to prevent the continued use of the v^ay, and the right of 
 way carried vs'ith it the incidental right to make necessary 
 
 repairs. McMiUian v. Cronin, 75 N. Y. 474. 
 
 Bristor v. Burr, 120 N. T. 427, 431. 
 
 336. 
 
 The company w^as liable. It had a right to make a rule 
 that a passenger should procure a ticket before entering the 
 cars and deliver it up at the end of his passage, but it had 
 no right to establish and enforce a regulation that if he did 
 not pay or deliver a ticket he should be detained and impris- 
 oned until he did, as he was at most a mere debtor and his 
 debt could not be enforced by imprisonment. 
 
 Lynch v. Met. Railroad Co., 90 IST. Y. 77. 
 Avery v. If. Y. C. & H. E. R. Co., 121 
 
 K Y. 31, 34. 
 Craven v. Bloomingdale, 171 iN". Y. 439, 
 449. 
 
 337. 
 
 The heirs-at-law should recover. The devise having been 
 invalid and therefore ineffective, the testator as to his real 
 estate died intestate, and upon his death it vested in his 
 heirs-at-law under the statute of descent, and words of dis- 
 inheritance in his will were insufficient to deprive them of 
 their title. It could be affected only by a legal devise of the 
 property. Gallagher v. Crooks, 132 N. Y. 338. 
 
 Chamberlain v. Taylor, 105 N. Y. 193. 
 
 Herzog v. The Title Guaranty & Trust 
 Co., 177 K Y. 97, 98. 
 
 Pomroy v. Hincks, 180 IST. Y. 73. 
 
 338. 
 
 It was sufficiently signed under the statute which requires 
 it to be signed at the end thereof. The testator by signing 
 
Bae Examinations and Courses of Study. 305 
 
 below the attestation clause made it a part of his will, and 
 therefore the subscription was at the end of the will and in 
 compliance with the statute. 
 
 Younger v. Duffie, 94 N. T. 535. 
 
 Matter of Laudy, 161 N. Y. 429, 432. 
 
 339. 
 
 Under the will A acquired a life estate and a vested 
 remainder, which constituted a valid title. The words 
 *' from and after " or other words or phrases denoting time 
 in a devise of a remainder limited upon a particular estate 
 determinable on an event that must happen relate merely 
 to the time of the enjoyment of the estate and not to the 
 time of its vesting, especially in devises of real estate. 
 
 Moore v. Lyons, 25 Wend. 119. 
 
 Livingston v. Greene, 52 IS.. Y. 118. 
 
 Ackerman v. Gorton, 67 IST. Y. 63, 66. 
 
 Nelson v. Eussell, 135 K Y. 137. 
 
 Connelly v. O'Brien, 166 N. Y. 406. 
 
 Lewis V. Howe, 174 K Y. 346. 
 
 340. 
 
 While the farm is in the hands of the vendee, A has a ven- 
 dor's lien upon the farm for the unpaid purchase price, and 
 the taking of a promissory note therefor did not affect the 
 lien, 
 
 Garson v. Green, 1 Johns. Oh. 308. 
 
 Fisk V. Porter, 2 Keyes, 74. 
 
 Chase v. Peck, 21 K Y. 581, 584. 
 
 Benedict v. Benedict, 85 ISf. Y. 625. 
 
 Maroney v. Boyle, 141 N. Y. 462. 
 
 Hubbell V. Hendrickson, 175 IST. Y. 175. 
 
 341. 
 
 The defense was invalid because A's remedy by an action 
 at law was inadequate and would involve a multiplicity of 
 suits. In an action at law he could recover onlv the rental 
 20 
 
306 Bar Examinations and Coueses of Study. 
 
 value of the lots, and B might, by paying the judgments ob- 
 tained therefor, in effect make himself A's tenant against 
 iis will, and prevent his enjoyment and improvement of his 
 
 property. Wheelock v. Noonan, 10-8 X. Y. 1T9. 
 
 Tallman v. N. E. E. E. Co., 121 IST. Y. 
 
 125. 
 N. Y. C. & H. E. E. Co. V. City of 
 Eochester, 127 K Y. 591. 
 
 342. 
 
 B could maintain his suit and was entitled to an equitable 
 lien on the property for the amount he invested therein, with 
 a right to sell it, if necessary, to recover that amount. The 
 right of lien was founded upon the agreement and Vas so 
 far performed that equity would enforce it, and the statute 
 of frauds was no defense. 
 
 Smith V. Smith, 125 K Y. 224. 
 
 Sprague v. Cochran, 144 N. Y. 104. 
 
 Freeman v. Freeman, 43 N. Y. 34. 
 
 343. 
 
 They applied to the Supreme Court upon notice to the 
 Attorney-General and to such other persons as the court di- 
 rected, for an order amending the certificate of incorporation. 
 General Corporation Law (Laws 1909, 
 chap. 28), sec 7. 
 
 344. 
 
 'No; the action will not lie. In the absence of fraud, 
 usurpation or of gross negligence an act intra vires is an 
 act of corporate management and a minority of the stock- 
 holders cannot question the same. The majority rule, and 
 the courts will leave the dissatisfied minority to redress their 
 grievances through ordinary corporate methods. 
 
 10 Cyc. 969. 
 
 Cook on Corporations, sec. 684. 
 
 Gamble v. Q. C. W. Co., 123 N. Y. 91. 
 
 Farmers' L. & T. Co. v. N. Y. & N. 
 E. R Co., 150 N. Y. 426. 
 
Bae ExaminatiojTs and Coueses of Study. SOT 
 
 345. 
 
 The corporation had no defense because the defense of 
 usury may not he interposed by a corporation. 
 
 Gen. Bus. Law, (Laws 1909, chap. 25), 
 
 sec. 374. 
 Stewart v. Bramhall, 74 N, Y. 85. 
 Ludington v. Kirk, 17 Misc. 129. 
 Hubbard v. Tod, 171 U. S. 501. 
 
 346. 
 
 The guardian shall lose the custody of the estate and of 
 the ward and shall forfeit to the ward treble damages. 
 
 Domestic Kelations Law (Laws 1909, 
 chap. 19), sec. 83. 
 
 347. 
 
 The deed is insufficient for want of the signature of B's 
 former wife. A's former wife need not sign. The judgment 
 of divorce granted to A because of his wife's adultery for- 
 feited her dower; contra, as to B's former wife. The mar- 
 riage contract in her action was not dissolved for her mis- 
 conduct and she still has dower. 
 
 Real Property Law (Laws 1909, chap. 
 
 52), sec. 196. 
 Fowler's Real Property Law (2d ed.), 
 pp. 575, 576, and cases cited. 
 
 348. 
 
 The marriage of Y and Z is voidable, but is valid until 
 its nullity is declared by a court of competent jurisdiction. 
 Their rights and obligations are those of husband and wife 
 and X has no rights or obligations until their marriage is 
 annulled. 
 
 Domestic Relations Law (Laws 1909, 
 chap. 19), sec. 7. 
 
 349. 
 
 Judgment valid. The amount recoverable in an action 
 to recover damages for injuries resulting in death shall not 
 be subject to any statutory limitation. 
 
 Constitution of "New York, art. 1, sec. 18. 
 
308 Bae Examinations and Courses of Study. 
 
 350. 
 
 Objection overruled. Prisoner was confronted with the 
 witness and had an opportunity for his cross-examination. 
 The constitutional right of the defendant to be confronted 
 with the witnesses in a criminal prosecution is involved. 
 
 Code Criminal Procedure, sec. 8, subd. 3. 
 
 People V. Fish, 125 ¥. Y. 137, at 151. 
 
 Bill of Bights, 1 Rev. Stats. 94, sec. 14. 
 
 U. S. Const., YI Amendment. 
 
 351. 
 AFFIDAVIT OF SEEVICE. 
 STATE OF NEW YORK, 
 
 Albany City and County, ^ 
 
 John Doe, being duly sworn, deposes and says, that he 
 is more than twenty-one years of age and that on the day 
 of , 190 , at ISo. 47 Broadway, in the city of 
 
 Albany, 'N. Y., he personally served the annexed summons 
 on John Smith, one of the defendants therein named, who 
 is an infant under the age of fourteen years, by delivering 
 !to him, said infant, in person a copy thereof and leaving 
 the same with him^ and at the same time and place by per- 
 sonally delivering a copy thereof to Peter Smith, his father, 
 and leaving the same with him. Deponent further states that 
 he knew John Smith, so served as aforesaid, to be the person 
 mentioned and described in said summons as defendant 
 therein, and the said Peter Smith to be his father. 
 
 (Signed.) JOHN DOE. 
 
 Sworn to before me, this . . . . ] 
 day of ..,1905. j 
 
 Commissioner of Deeds, 
 
 Albany, N. Y. 
 Supreme Court Rule, 1 8. 
 Code Civil Procedure, sec. 426. 
 
Bab Examinations and Coueses of Study. 309 
 
 352. 
 
 D, the defendant, ■wins. The demurrer should be sus- 
 tained. The action abated upon the death of C, the wrong- 
 doer, and could not be maintained against his representa- 
 tives. 
 
 Hegerich v. Keddie, 99 N. Y. 258. 
 
 Moriorty v. Bartlett, 99 N. T. 651. 
 
 Brackettv. Griswold, 103 IST. Y. 425, 428. 
 
 Blake v. Griswold, 104 N. Y. 613. 
 
 Matter of Meekin v. B. H. R E. Co., 
 164 K Y. 151. 
 
 353. 
 
 The objection should be overruled. The defendant under 
 his general denial was entitled to show that there were no 
 dealings between A and B upon which an account could be 
 stated. 
 
 Field V. Knapp, 108 'N. Y. 87. 
 
 354. 
 
 Judgment for B. could not recover because not a bor- 
 rower within the meaning of the usury laws declaring such 
 payment or offer to pay unnecessary as a condition of grant- 
 ing the relief prayed for where the suit is brought by the 
 borrower. 
 
 Buckingham v. Corning, 91 'N. Y. 525. 
 
 Allerton v. Belden, 49 IST. Y. 873. 
 
 Wheelock v. Lee, 64 IST. Y. 242. 
 
 355. 
 
 The court had jurisdiction to grant the plaintiff's appli- 
 cation. The omission of the plaintiff to have a guardian 
 ad litem appointed was a mere irregularity and did not 
 affect the jurisdiction of the court. 
 
 Eima v. Rossie Iron Works, 120' 'N. Y. 
 433. 
 
310 JBak Exa>iinations and Cotjesbs of StttdYo 
 
 356. 
 AFFIDAVIT OF MERITS. 
 
 (Title of Actiokt.) 
 
 STATE OF NEW YOEK, ) ^^^ . 
 Albany City anb Coitnty, j 
 
 John Doe, being duly sworn, deposes and says that he is 
 the defendant in the above-entitled action ; that he has fully 
 and fairly stated the case to John Smith, his counsel, who 
 resides at No. 86 State street, Albany, N. Y., and that he 
 has a good and substantial defense on the merits to the ac- 
 tion as he is advised by his said counsel after such stat-ement, 
 and verily believes. 
 
 (Signed) JOHN DOE. 
 Sworn to before me, this . . . 
 day of ... ...... 1905. 
 
 Commissioner of Deeds, 
 
 Albany, N. Y. 
 357. 
 
 No; A could not recover; judgment for B. The contract 
 being executory, an implied warranty of title existed, and 
 upon its failure the purchaser had a right to treat the con- 
 tract as rescinded, and A could not recover. 
 
 Burwell v. Jackson, 9 N. Y. 535. 
 
 Whittemore v.' Earrington, 76 N. Y. 452, 
 453, 457. 
 
 Moore v. Williams, 115 N. Y. 586, 592. 
 
 Walton V. Meeks, 120 N. Y. 79, 83. 
 
 Vought V. Williams, 120 N. Y. 253, 257. 
 
 Blanck v. Sadlier, 153 N. Y. 556. 
 
 358. 
 
 Judgment for B. The agreement of B to advance the 
 money upon the mortgage, and his promise to delay fore- 
 closure, were both dependent upon the undertaking of A to 
 erect and complete the houses, and when he repudiated the 
 further performance of the contract B was discharged from 
 
Bae Examinations and Coueses of Study. 311 
 
 further obligations, was at liberty to enforce his securities 
 for the money advanced, and previous demand was not 
 necessary. 
 
 Ferris v. Spooner, 102 N. Y. 10. 
 
 359. 
 
 Judgment for H. The right to damages for closing the 
 street arose at once although the amount was not fixed and as- 
 certained until after the conveyance by H to B. The right 
 of H to the damages having accrued when the street was 
 closed was a personal right, and when paid it related back 
 to the original debt which accrued at that time. It was not 
 embraced within the deed from H to B, but was a mere right 
 of action not running with the land. 
 
 King V. Mayor, 102 N. Y. 171. 
 
 Donnelly v. Brooklyn, 121 IsT. Y. 139. 
 
 Sage V. Brooklyn, 89 IST. Y. 189. 
 
 360. 
 
 A wins. B made the payment voluntarily and without A's 
 request, and had no legal claim upon A for reimbursement. 
 A's expression of gratitude was not a promise of payment, 
 and even if so considered, it was without legal consideration 
 and void. 
 
 Goulding V. Davidson, 26 K Y. 608. 
 
 9 Cyc. 316, 356. 
 
 Eenss Glass Factory v. Eeid, 5 Cowen, 
 588, 619, 620. 
 
 Smith V. Ware, 13 Johns. R 257. 
 
 Beach on Contracts, see. 153. 
 
 The rule of " payment for honor swpra protest " has no 
 relation to the question. 
 
 Eaton & Gilbert on Commercial Paper, 
 p. 625. 
 
312 Bar Examinations and Couesbs of Study. 
 
 361. 
 
 Judgment for plaintiff. 
 
 "A hiring at so niiich a year, no time being specified, is an 
 indefinite hiring; and such a hiring is a hiring at will and 
 may be terminated at any time by either party." 
 
 Martin v. Insurance Co., 148 N. Y. 117. 
 Outerbridge v. Campbell, 87 App. Div. 
 
 597. 
 Hotchkiss V. Godkin, 63 App. Div. 470. 
 
 362. 
 
 Each liable in solido for the entire debt. B having con- 
 tributed his $50,000 in merchandise and accounts and not 
 " in actual cash payments "■ is liable as a general partner 
 for the debts of the firm. 
 
 Partnership Law (Laws 1909, chap. 44), 
 
 sec. 30. 
 Durant v. Abendroth, 69 N. Y. 148. 
 Hotopp V. liuber, 160 N. Y. 528. 
 Met. Nat. Bank v. Sirrett, 97 N. Y. 326. 
 
 363. 
 
 The judgment is valid as against C as is the levy on the 
 firm property, but the levy under the execution on C's private 
 dwelling-house is not, because he was not served. 
 
 " In an action against joint debtors, service of summons 
 on one authorizes judgment against all, which may be en- 
 forced by execution against the joint property, although the 
 other defendants are not served and do not appear in lie 
 action." Y^^^^g ^_ McFadden, 141 N. Y. 136. 
 
 Staiger v. Theiss, 19 Misc. 170. 
 Schwarzchild v. Mathews, 39 App. Div, 
 
 481. 
 Code Civil Procedure, sees. 1932-1935. 
 
 364. 
 
 Judgment for B. Demurrer sustained. 
 " The indorsement or assignment of the instrument 
 (note) * * * by an infant passes the property therein 
 
Bae Examinations and Courses of Study. C13 
 
 notwithstanding that from want of capacity the * * * 
 infant may incur no liability thereon." 
 
 ISTegotiable Instruments Law (Laws 
 
 1909, chap. 43), sec. 41. 
 Eaton & Gilbert on Commercial Paper, 
 pp. 48-51. 
 
 365. 
 
 A and B are liable. D and E are not liable. 
 " Where an instrument is negotiated back to a prior party, 
 such party may, subject to the provisions of this chapter, 
 reissue and further negotiate the same. But he is not enti- 
 tled to enforce payment thereof against any intervening 
 party to whom he was personally liable." 
 
 ^Negotiable Instruments Law (Laws 
 
 1909, chap. 43), sec. 80. 
 Eaton & Gilbert on Commercial Paper, 
 p. 352. 
 
 366. 
 
 Judgment for C. A was a general agent for B in buying 
 and selling horses and had implied authority to warrant. 
 
 The instructions to A never to warrant were not known 
 to G and did not bind him. 
 
 " In the case of a factor or servant of a horse dealer in the 
 habit of making sales, if the factor or servant should be 
 specially instructed in a given instance, the instructions 
 would not be binding if in conflict with the general authority 
 derivable from their occupations." 
 
 Cowen's Treatise, Vol. I, sees. 15Y, 158 
 
 (5th ed.), and cases cited. 
 ISTelson v. Cowing, 6 Hill, 336. 
 Smith V. Tracy, 39 N. Y. 79. 
 Bierman v. City Mills Co., 151 K Y. 
 
 489. 
 Wait V. Borne, 123 IST. Y. 592. 
 Sandford v. Handy, 23 Wend. 266, 267. 
 
314 Bae Examiitations ah-d Coueses of Sttidy. 
 
 367. 
 
 The loss falls upon B. X was a commercial agent and 
 sold by sample ; he did not have possession of the malt, nor 
 did he make delivery thereof, the latter having been made 
 by his principal. 
 
 The parties had had no prior dealings to establish a course 
 of business in regard to paying X; the payment was made 
 after the sale and B knew who the principal was. 
 
 X had no authority to collect the money and B must stand 
 the loss. y^^, Higgins v. Moore, 34 N. Y. 417. 
 
 Lamb v. Hirschberg, 1 App. Div. 523. 
 Carter v. White Lead Co., 65 App. Div. 
 
 476. 
 Dunn V. Wright, 51 Barb. 244. 
 Maxfield v. Carpenter, 65 St. Kep. 587. 
 
 368. 
 
 'No ; A was not released. The statement of the holder of 
 the note that he would not bother B nor sue him on the note 
 did not constitute a valid contract binding on him and ex- 
 tending the time of payment of the note for ninety days. 
 There was a want of a valid consideration. 
 
 "A valid consideration is an essential element of an agree- 
 ment, after maturity, to extend the time of payment of a 
 promissory note, such as will discharge a surety thereon; 
 and in an action upon the note, if such an agreement is re- 
 lied upon as a defense, the consideration therefor must be 
 pleaded and proved." 
 
 National Citizens' Bank v. Toplitz, 178 
 
 N. Y. 464. 
 Gahn V. ISTiemcewiecz, 11 Wend. 312. 
 Fifth National Bank v. Woolsey, 21 Misc. 
 761, 762. 
 
 369. 
 
 A, the surety, can recover from C to the extent of the 
 value of the collateral which the latter surrendered to B. 
 
 "A surety who pays the debt is entitled to be put in the 
 place of the creditor and to all the means and to every rem- 
 
Bae Examinatiok's and Coueses of Study. 315 
 
 edy which the creditor possesses to enforce payment from the 
 principal debtor." ^^^^^ ^_ ^^^^^ ^ j^^^^_ ^^_ ^23. 
 
 Griswold v. Jackson, 2 Edw. Ch. 468. 
 Grow V. Garlock, 97 JST. Y. 81. 
 State Bank V. Smith, 155 N. Y. 197, 200. 
 Pitts V. Congdon, 2 N. Y. 352. 
 Sternbeck v. Eriedman, 23 Misc. 176. 
 Am. & Eng. Encyc. Law, Vol. 27, p. 206 
 (2d ed.). 
 
 370. 
 
 No ; the company is not liable. The house, while not va- 
 cant, was unoccupied within the meaning and intent of the 
 policy because it was not, at the time of the fire, a place of 
 ftbode of human beings or used as such. 
 
 Herman v. Adriatic Eire Ins. Co., 85 
 
 K Y. 162. 
 Barry v. Prescott Ins. Co., 35 Hun, 604. 
 Huber v. Manchester Eire Assur. Co., 92 
 
 Hun, 228. 
 Martin v. Rochester German Ins. Co., 86 
 
 Hun, 35. 
 Couch V. Farmers' Ins. Co., 64 App. Div. 
 
 367. 
 Thieme v. Niagara Eire Ins. Co., 100 
 App. Div. 278. 
 
 371. 
 
 Judgment for the insurance company. The policy was 
 void. The insured was guilty of fraud, and knowledge on 
 the part of the agent of the life insurance company of the 
 falsity of the warranty will not relieve the assured from a 
 forfeiture of the policy when the alleged breach of warranty 
 is founded upon a misstatement by the assured in his ap- 
 plication. ^^^ j^.^^ j^^ ^^_ ^_ Erance, 91 U. S. 
 510. 
 Kenyon Case, 122 N. Y. 247. 
 Barteau v. Phoenix M. L. Ins. Co., 67 
 
 K Y. 595. 
 Cook on Life Insurance, sec. 20, pp. 32, 
 37. 
 
316 Bar Examinations and Coueses of Study, 
 
 372. 
 
 Judgment for X, the plaintiff. It was the auctioneer's 
 duty to give X immediate notice of the levy and that his 
 title to the property was questioned. 
 
 "A factor is bound to assume that his principal is the 
 owner of goods consigned to him for sale, and his allegiance 
 is alone due to his principal. He cannot justify a refusal 
 to pay over the proceeds of such sale on the ground that the 
 same have been seized by virtue of an attachment against a 
 third person * * * of which the principal had no notice." 
 Barnard v. Kobbe, 54 N. Y. 516. 
 Eogers v. "Weir, 34 N. Y. 463. 
 
 373. 
 
 Judgment for B. He is not liable at the suit of A for 
 damages, because the transaction was a bailment and the 
 factory, cloth and other material were destroyed accidentally 
 without the fault or negligence of B. 
 
 Stewart v. Stone, 127 IST. Y. 500. 
 
 Sattler v. Hallock, 160 N. Y. 291, at 298. 
 
 For the same reasons A is liable to B for the value of his 
 labor expended in completing the trousers not delivered. 
 
 Labowitz v. Erankfort, 4 Misc. 275 ; Id. 
 
 624. 
 Hayes v. Gross, 9 App. Div. 12, at p. 17 ; 
 
 affd., 162 ISr. Y. 610. 
 Bhodes v. Hinds, 79 App. Div. 383. 
 
 374. 
 
 Yes. He can begin his action at once without tendering 
 delivery, nor is it necessary for him to await the expiration 
 of the time of performance fixed by the contract, 
 
 A was entitled to store the flour for B and sue for the 
 purchase price, or sell the same as B's agent and recover the 
 deficiency, or he could keep the flour as his own and sue for 
 the difference between the contract price and the market 
 
Bar Examinations and Courses of Study. 317 
 
 price at the time and place of delivery. He followed the 
 second course and was well within his rights. 
 
 Ideal Cash Register Co. v. Znnino, 39 
 Misc. 313. 
 
 WindmuUer v. Pope, 107 IST. Y. 674. 
 
 375. 
 
 Judgment for A. Title had not passed to him. The cigars 
 he ordered had not been shipped, and those shipped were not 
 on the credit stated in the order ; neither had A accepted, for 
 the cigars were destroyed before they reached him. There 
 was no contract, express or implied, between the parties. 
 Bruce v. Pearson, 3 Johns. 534. 
 Corning v. Colt, 5 Wend. 253, 256. 
 Downer v. Thompson, 2 Hill, 137; Id., 
 6 Hill, 208. 
 
 376. 
 
 The exception was not well taken. The presumption of 
 innocence has no application to civil cases but to criminal 
 cases only. 
 
 Kurz V. Doerr, 86 App. Div. 507; affd., 
 180 K Y. 88. 
 
 377. 
 
 Objection should be overruled. Notwithstanding the state- 
 ment in the note that it was given for money loaned, it is 
 open to either party to show the true consideration thereof. 
 
 Miller v. McKenzie, 95 K Y. 575, 578. 
 Wheeler v. Billings, 38 IST. Y. 263, 264. 
 Arnot V. The Erie Railway Co., 67 IST. Y. 
 321. 
 
 378. 
 
 Objection should be sustained. The declarations of the 
 decedent were merely a narrative of a past transaction 
 and not admissible as a part of the res gestae. The res ges- 
 iw was the accident of which the declarations were no part, 
 not being made at the same time or place, nor were they so 
 
318 Bae Examinations and Coueses of Study. 
 
 E early contemporaneous with it as to characterize the acci- 
 dent or throw any light upon it. 
 
 Waldele v. Railroad, 95 N. Y. 274. 
 
 People V. Driscoll, 107 IST. Y. 414, 424. 
 
 Martin v. Railroad, 103 K Y. 626. 
 
 People V. Smith, 172 W. Y. 242. 
 
 Austin V. Bartlett, 178 N. Y. 310, 313. 
 
 379. 
 
 The exception was valid. The widow was a person inter- 
 ested in the event of the action for if the deed was canceled, 
 her right of dower in the property transferred by her con- 
 sent would in effect be restored. 
 
 Sanford v. Ellithorp, 95 JST. Y. 48. 
 
 380. 
 
 Judgment should be for A. The note was barred by the 
 statute of limitations. To make an indorsement upon a 
 promissory note by the holder, of part payment, without the 
 privity of the maker, competent evidence to meet the statute 
 of limitations it must appear that it was made at a time when 
 its operation would be against the interest of the party mak- 
 
 '"S '*• Mills V. Davis, 113 :tf. Y. 243. 
 
 Roseboom v. Billington, 17 Johns. 181, 
 
 182. 
 Read v. Hurd, 7 Wend. 408. 
 
 381. 
 
 Motion was denied. The defendant's rights were not 
 jeopardized, nor was he in any way prejudiced. The ad- 
 journment was simply a suspension of the proceedings to 
 be continued, and the court still retained jurisdiction for 
 that purpose. p^^^^^ ^ g^^j^^^^ ^^5 ^_ Y. 185. 
 
 382. 
 
 It was sufficient. Section 2 of the Penal Law/ provides 
 that a person who counsels, induces or procures another to 
 commit a crime is a principal and hence the indictment was 
 sufficient. Although the offense was committed by the de- 
 
Bar Examinations and Cotjeses of Studt, 319 
 
 fendant througk the agency of another still it was the act of 
 the defendant. 
 
 People V. Bliven, 112 IST. Y. 79. 
 
 People V. Mills, 178 E". Y. 274, 288. 
 
 People V. Peckens, 153 JST. Y. 576. 
 
 Penal Law (sec. 29), Laws 1909, chap. 
 88. 
 
 383. 
 
 Yes. The identity of the dead body found, with that of B, 
 was not included in the corpus delicti and was left open to 
 indirect or circumstantial evidence. 
 
 People V. Palmer, 109 JST. Y. 110. 
 
 384. 
 
 Motion denied. The doctrine res ipsa loquitur applies. 
 " While in an action against a railroad corporation the 
 burden of showing negligence on its part, occasioning an 
 injury, rests in the first instance, upon the plaintiff, proof 
 that the injury was the result of an accident which would 
 not ordinarily have happened had the track and machinery 
 been in proper condition, and the latter operated with proper 
 care, is sufficient, and the onus then rests upon the defend- 
 ant to prove that the injury was caused' without its fault." 
 Seybolt v. The N. Y., L. E. & W. B. B. 
 
 Co., 95 ]Sr. Y. 562. 
 Cosulich V. S. 0. Co., 122 K Y. 127, 
 
 128. 
 Klinger v. United Traction Co., 92 App. 
 Div. 104. 
 
 385. 
 
 Judgment for A. The words were not spoken of C in 
 reference to his occupation as a physician; they were not 
 actionable per se and no special damages were proven. 
 
 Cassavoy v. Pattison, 93 App. Div. 370, 
 
 372. 
 Moore v. Francis, 121 N. Y. 199. 
 Moore v. M. N. Bank, 123 K Y. 420. 
 Bornman v. Star Co., 174 N. Y.. 219. 
 Triggs V. Sun P. & P. Assn., 179 K Y. 
 144. 
 
320 Bar Examinations and Courses of Study. 
 
 386. 
 
 No. 
 
 " The owner of a city lot may improve and fill it up, or 
 
 may, if he desires to build, construct walls so as to protect 
 
 his lot against the surface water from an adjoining higher 
 
 Int " 
 
 Vanderwiele v. Taylor, 65 N. Y. 341. 
 
 Yynch v. Mayor, 76 N. Y. 60. 
 
 Barkley v. Wilcox, 86 IST. Y. 144. 
 
 Davis V. Niagara F. T. Co., 171 N. Y. 
 
 336. 
 
 387. 
 
 B, O and D, the adopted child, take equally. 
 
 A, the foster parent, and D, the adopted child, sustain 
 
 towards each other the legal relation of parent and child, and 
 
 have all the rights and are subject to all the duties of that 
 
 relation, including the right of inheritance from each other. 
 
 Domestic Relations Law (Laws 1909, 
 
 chap. 19), sec. 114. 
 Van Beck v. Thomson, 44 App. Div. 
 
 373; afFd., 167 N. Y. 601. 
 Dodin V. Dodin, 40 K Y. Supp. 748. 
 388. 
 
 C, the residuary legatee, takes the house and lot, and the 
 $10,000 in cash. 
 
 Lapsed devises as well as lapsed legacies fall into the resi- 
 due, and are disposed of under the general residuary clause 
 
 Cruickshank v. Home of the Friendless, 
 
 113 K Y. 337. 
 Matter of Allen, 151 N. Y. 243. 
 Moffett V. Elmendorf, 152 N. Y. 484. 
 
 389. 
 
 The will is valid as to the personal property, for a male 
 person of the age of eighteen years and upwards may give 
 and bequeath his personal estate by will in writing. 
 
 Decedent Estate Law (Laws 1909, 
 chap. 18), sec. 15. 
 
Bae Examinations and Coueses of Study. 321 
 
 An infant cannot make a valid will devising his or her 
 real estate. 
 
 Decedent Estate Law (Laws 1909, 
 chap. 18), sec. 10. 
 
 The will will be probated as a will of personal estate, and 
 B will receive his $20,000 of personal property thereunder. 
 A dies intestate as to his real estate, and that will go to his 
 two brothers B and C subject to the widow's dower. 
 
 Eeal Property Law (Laws 1909, chap. 
 
 52), sec. 190. 
 Decedent Estate Law, sec 87. 
 
 390. 
 
 As between the husband and the wife equity will consider 
 the mortgage as a valid and subsisting lien on the farm, and 
 as never having been paid. She can bring an action to have 
 the satisfaction set aside and its record canceled and for its 
 foreclosure. 
 
 The equitable principle involved is that " equity regards 
 as done that which ought to be done." 
 
 Alden v. Barnard, 15 Misc. 512. 
 Vide 16 Cyc. 135. 
 
 Am. & Eng. Encyc. Law, Vol. 11 (2d 
 ed.), p. 180. 
 
 391. 
 
 The $10,000 shall be distributed as real estate; the child 
 of the deceased son taking the $10,000 as such, as the heir- 
 at-law of his father subject to the widow's dower therein. 
 
 " Equity regards that as done which ought to be done." 
 Under the doctrine of equitable conversion, in order to carry 
 out the intention of the testator, equity will regard the money 
 which he directed to be invested in a farm as real estate and 
 will dispose of it as such. 
 
 Thorn V. Coles, i Edw. Oh. 330. 
 
 Lorillard v. Coster, 5 Paige Ch. 172. 
 
 Hawley v. James, 5 Paige Ch. 318. 
 
 Bolton V. DePeyster, 25 Barb. 539. 
 
 Am. & Eng. Encyc. Law (2d ed.), Vol. 
 
 7, p. 465. 
 21 
 
322 Bar Examinations and Coueses of Study. 
 
 " Money directed by will to be employed in the purchase 
 of land is to be considered as land." 
 9 Cyc. 840. 
 
 As to the distribution, Vide Keal property Law (Laws 
 1909, chap. 52), sec. 190. 
 
 Decedent Estate Law (Laws 1909, 
 chap. 18), sec. 81. 
 
 392. 
 
 Judgment for D. A had the absolute right when he paid 
 the amount of the mortgage to B to take back, instead of a 
 satisfaction, an assignment in blank, and to subsequently 
 reissue it and to insert in the assignment the name of the 
 new holder. C has no complaint coming; he purchased the 
 farm subject to the mortgage which he assumed and agreed 
 to pay, and to that extent did not pay cash. Hence he is 
 not harmed and is estopped from claiming payment and 
 satisfaction of the mortgage. 
 
 Kellogg V. Ames, 41 IST. Y. 259. 
 
 Wallach v. Schulze, 22 App. Div. 60. 
 
 Bogert V. Bliss, 148 JST. Y. 195, at 200, 
 
 201- 393. 
 The claim of the old board to hold over is invalid. 
 The " B " ticket is elected as certified, it having received 
 a plurality of the votes cast ; a majority vote is not required. 
 " The directors of every stock corporation shall be chosen 
 at the time and place fixed by the laws of the corporation by 
 a plurality of the votes at such election." 
 
 Stock Corporation Law (Laws 1909, 
 ckap. 61), sec. 25. 
 
 394. 
 
 Yes. A has a valid claim for the value of his services. 
 The services were rendered to the stock company by A as an 
 attorney on its retainer, and were outside of his official 
 duties. He is entitled to be paid. 
 
 Bagley v. Carthage, W. & S. H. E. E. 
 Co., 165 N. Y. 179 ; 118 App. Div. 
 60. 
 
Bak Examinations and Coueses of Study. 323 
 
 395. 
 
 The note is good under the circumstances disclosed. 
 
 (a) It was ordered executed and issued for corporate pur- 
 poses at a regular meeting of the corporation. A majority 
 of the directors were present who constituted a quorum for 
 the transaction of business, and a majority of the quorum 
 present voted in favor of the proposition. 
 
 General Corporation Law (Laws 1899, 
 chap. 28), sec. 34. 
 
 (b) The paper signed by the dissenting directors and the 
 two absent directors had no force; they, although a ma- 
 jority of the board, have no separate or individual authority 
 to bind the corporation, — it is only when acting as a board 
 can- they make or authorize acts binding on the corporation. 
 
 People's Bank v. St. Anthony's E. C. 
 
 Church, 109 K Y. 512. 
 Columbia Bank v. G. T. Church, 127 
 
 N. Y. 361. 
 
 396. 
 
 None. Although legitimatized by the marriage of its 
 parents and entitled to all the rights and privileges of a 
 legitimate child, an estate or interest vested or trust created 
 before the marriage is not divested or affected by reason of 
 the child being legitimatized. 
 
 Domestic Eelations Law (Laws 1909, 
 chap. 19), sec. 24. 
 
 397. 
 
 The appointment is invalid. The husband cannot appoint 
 a guardian of the person of his infant child to the exclusion 
 of the surviving wife. The wife is a joint guardian of her 
 children with her husband with equal powers, rights and 
 duties in regard to them. The wife's fitness to act as guard- 
 ian is not involved in the question. 
 
 Domestic Relations Law (Chap. 19, 
 Laws 1909), sec. 81. 
 
3'24 jBab Examinations and Courses of Study. 
 
 398. 
 
 Judgment for defendant. 
 
 A sued the infant " in contract," and as he sought to en- 
 force the contract, and not to recover damages resulting from 
 the fraud, he is not entitled to recover. 
 
 Traudulent representations made by an infant to induce 
 another to enter into a contract with him will not give it 
 validity. 
 
 Studwell V. Shaffer, 54 JST. Y. 249. 
 ]Sr. Y. Building Loan Co. v. Fisher, 23 
 App. Div. 363. 
 
 399. 
 
 " Every male citizen of the age of twenty-one years, w^o 
 shall have been a citizen for ninety days, and an inhabitant 
 of this state one year next preceding an election, and for the 
 last four months a resident of the county, and for the last 
 thirty days a resident of the election district in which he may 
 offer his vote, shall be entitled to vote at such election in the 
 election district of which he shall at the time be a resident, 
 and not elsewhere, for all officers that now are or hereafter 
 may be elective by the people * * *." 
 
 IST. Y. Const, art. II, sec. 1. 
 
 400. 
 
 The court should deny the motion. 
 
 " 'No person shall be subject to be twice put in jeopardy 
 for the same offense." 
 
 iN". Y. Constitution, art. I, sec. 6. 
 
 People V. Comstock, 8 Wend. 549. 
 
 Code of Criminal Procedure, sec. 9. 
 
 A new trial can only be granted in criminal actions for 
 misconduct of the jury when a verdict has been rendered 
 against the defendant. 
 
 Code of Criminal Procedure, sees. 463, 
 465. 
 
Bab Examinations and Coueses of Study. 
 
 401. 
 CITY COURT or THE CITY OF NEW YOEK. 
 
 A., 
 
 agst 
 B., 
 
 Plaintiff, 
 Defendant. 
 
 Plaintiff complains of the defendant in tlie above en- 
 titled action and alleges: 
 
 I. That heretofore and on the 3d day of June, 1907, at 
 the city of New York, he rendered services to the defend- 
 ant at his request in repairing and upholstering his, de- 
 fendant's, furniture and that he then and there furnished 
 the cloth and other materials necessary in the said work 
 Upon the like request and that he delivered the same to 
 the defendant. 
 
 II. That said work done and materials furnished as 
 aforesaid were reasonably worth the sum of two thousand 
 dollars, which sum became due therefor on June 3, 1907. 
 
 III. That no part of the same has been paid. 
 Wherefore, plaintiff demands judgment against said 
 
 defendant for the sum of two thousand dollars with interest 
 thereon from June 3, 1907, besides the costs of this action. 
 
 JOHN DOE, 
 Attorney for Plaintiff, 
 Office and Post-office Address, 
 5 Nassau St., New York, N. Y. 
 (a) The jurisdiction of the City Court of the city of 
 New York in an action wherein the complaint demandj 
 judgment for a sum of money only is limited to two thou* 
 sand dollars, exclusive of interest and costs as taxed. 
 Code Civ. Pro., sec. 316. 
 (h) If the action was brought in a County Court, the 
 complaint would have to allege in addition, that the de- 
 fendant was at the time of the commencement of the action 
 a resident of the county where the action was brought. 
 
 The jurisdiction of the County Court, in an action 
 wherein the complaint demands judgment for a sum of 
 money only, is two thousand dollars. 
 
 Code Civ. Pro., sec. 340, subd. 3. 
 
'!32'6 Bak Examinations and Coueses of Studt. 
 
 402. 
 
 Counterclaim was valid. " This counterclaim was upon 
 contract, tlie plaintiff's cause of action was in tort, but 
 both causes of action arose out of the same transaction, the 
 sale of the horse, and the counterclaim was, therefore, 
 properly interposed under sections 2945, and 501 and 502 
 of the Code of Civil Procedure." 
 
 Vandervoort v. Mink, 113 App. Div. 
 601. 
 
 403. 
 
 The sheriff. A voluntary general appearance of the de- 
 fendant is equivalent to personal service of the summons 
 on him (Code Civil Procedure, see. 424) and gives the 
 Court jurisdiction of the person of the defendant. Hence 
 the judgment in the case was one in personam and author- 
 ized the sheriff to levy on and sell, under the execution 
 issued, any property of B found in his county whether 
 attached or not. 
 
 Reed v. Chilson, 142 K Y. 152. 
 Code Civil Procedure, sees. 1240, 1364, 
 1368. 
 
 404. 
 
 A, being an infant, must, before the summons is issued, 
 procure the appointment of a competent and responsible 
 person to appear as his guardian ad litem for the purposes 
 of the action. 
 
 The infant, being fourteen years of age and upwards, 
 must make the application to the Court in which the action 
 is brought or to a judge thereof for the appointment. If 
 the action is brought in the Supreme Court, the County 
 Judge of the County where the action is triable may appoint 
 the guardian. 
 
 The practice is regulated by Code Civil Procedure, sees. 
 468 to 477. 
 
 405. 
 
 Enter judgment against the defendant B in the name 
 of the original party plaintiff. 
 
 If either party to an action dies after a verdict but before 
 
Bar Examination's and Coueses of Study. 327 
 
 final judgment is entered, the Court must enter final judg- 
 ment in the names of the original parties. 
 
 Code Civil Procedure, sec. 763. 
 
 406. 
 
 No. "A resident of a foreign State, while attending 
 Court in this State as a witness, cannot be served with a 
 process for the commencement of a civil action against 
 him." 
 
 Person v. Grier, 66 IST. Y. 124. 
 Parker v. Marco, 136 K Y. 585. 
 Weston V. Citizens Nat. Bnk., 64 App. 
 Div. 145. 
 Move to set aside the service of the summons. 
 
 Matthews v. Tufts, 87 N. Y. 568. 
 People ex rel. Ballin v. Smith, 184 N. 
 Y. 99. 
 
 407. 
 
 Husband gets curtesy. " Curtesy is a legal estate for 
 life, dependent on marriage, seisin, issue bom alive and 
 death of the wife." (Fowler's Eeal Property Law (2d 
 ed.), p. 837.) All of the above elements existed and the 
 wife had not alienated the estate in her lifetime nor de- 
 vised it. It made no difference that the seisin of the wife 
 was subsequent to the death of the child. 
 
 Jackson v. Johnson, 5 Oowen, 74. 
 
 12 Cyc. 1007. 
 
 After the death of the husband the estate descended to 
 the collateral relatives. (Decedent Estate Law, Laws 
 1909, ch. 18, sec. 86.) The brother took one-half in fee; the 
 two children of the deceased sister each took one-quarter 
 in fee, dividing the share between them the mother would 
 have taken if living. (Id. 87.) 
 
 408. 
 B and O each own to the center of the highjvay subject 
 to the public right. A devise of land bounded upon a high- 
 way, provided the devisor at the time owned to the center 
 and there be no words or specific description to show a 
 
328 BaE ExAMINATIOlfS AND CoUBSES OF StITDT. 
 
 contrary intent, carries the fee of the highway to the center 
 thereof. 
 
 Smith V. Bartlett, 180 W. Y. 360. 
 
 Vide Johnson v. Grenell, 188 K Y. 407. 
 
 409. 
 
 The contract to convey is valid. 
 
 " While a contract for the conveyance of land must be 
 in writing, yet an agent to execute the contract may be 
 appointed by parol." 
 
 Chester v. Dickerson, 54 JST. Y. 1 at 10. 
 ISTevsrton v. Bronson, 13 IST. Y. 587. 
 Moody V. Smith, 70 N. Y. 598. 
 Fowler's Real Property Law (2d ed.J, 
 p. 714^ 
 
 C can sue at law for his damages. 
 
 Boyd V. DeLancey, 91 Hun, 542. 
 Or in equity for specific performance. 
 
 Stone V. Lord, 80 ¥. Y. 60. 
 
 Bauman v. Pinckney, 118 IST. Y. 604. 
 
 Arend v. Laing, 79 Hun, 203. 
 
 Losee v. Morey, 57 Barb. 561. 
 
 Schroeppel v. Hopper, 40 Barb. 425. 
 
 410. 
 
 A not liable. The guaranty was " of collection," not of 
 payment, and A is not liable thereon until B had sued and 
 exhausted his remedies at law and failed to collect. 
 
 "One who guarantees generally the collection of a de- 
 mand, thereby undertakes that it is collectible by due 
 course of law, and only promises to pay when it is ascer- 
 tained that it cannot be collected by suit, prosecuted to 
 judgment without unnecessary delay against the prin- 
 cipal, and execution issued thereon, and an endeavor so to 
 collect is a condition precedent to a right of action against 
 the guarantor." 
 
 Salt Springs Nat. Bnk. v. Sloan, 135 
 
 N. Y. 371. 
 Phillips V. Lindley, 112 App. Div. 285. 
 Cumpston v. MclSTair, 1 Wendell, 457. 
 
Bae Examinations and Coubses of Study. 329' 
 
 411. 
 
 Yes. " Where the vendors of goods to be delivered and 
 paid for in installments, refuses to deliver an installment, 
 a breach of the entire contract is thereby established for 
 ■which the vendee if he so elects may immediately recover 
 all his damages." 
 
 Pakas V. HoUingshead, 184 K Y. 211. 
 
 412. 
 
 3l can maintain his action and the accounting can be 
 had without a dissolution. 
 
 " Plaintiff was not obliged to bring an action for dissolu- 
 tion. A partner in a going concern may bring an action in 
 equity to call his copartner to account, and to compel him 
 to act in conformity with the agreement, and an account- 
 ing may be had without dissolution to enable him to obtain 
 his share of the partnership profits from the benefits of 
 which he had been excluded. * * * The action is 
 * * *, but for an accounting ecnceming the profits of 
 a transaction which has been executed " (Sanger v. Prench, 
 157 'N. Y. 235), provided, it appears, as stated in the 
 question, that the special reason exists, that " one partner 
 has sought to withhold from his copartner his profits arising 
 from some secret transaction." 
 
 Lord V. Hull, 178 IsT. Y. 14. 
 
 413. 
 
 Judgment for B. As surviving partner, B may sue in 
 his own name for partnership debts whether contracted be- 
 fore or after the death of the deceased partner (Bernard v. 
 Wilcox, 2 Johns. Cases, 374), and it is not a defense that 
 the personal representatives of the deceased partner are not 
 joined as parties plaintiff. 
 
 Matthews v. Stietz, 5 Civ. Pro. Epts. 
 285. 
 
 Daby v. Ericsson, 45 IST. Y. 786. 
 
 Williams V. Whedon, 109 II. Y. 333. 
 
 Nehrboss r. Bliss, 88 N. Y. 604. 
 
330 Bae Examinations and Coueses of Study. 
 
 414. 
 
 N'o. While the original note was usurious by reason of 
 the corrupt agreement of the parties by which more than 
 lawful interest was to be paid (Eosenstein v. Fox, 150 IT. 
 Y. 354) where it is transferred to an innocent holder and he 
 receives directly from the maker a new one in its stead, 
 such new note cannot be impeached for usury in the 
 original. 
 
 Kilmer v. O'Brien, 14 Hun, 414, and 
 
 cases cited. 
 Vide Treadwell v. Archer, 76 IST. Y. 196. 
 
 415. 
 
 The brokers have valid title. The bonds were coupon 
 bonds drawn payable to bearer; they are deemed negotiable 
 and the rights of the brokers, having taken the bonds in 
 good faith and for value before maturity, are the same as 
 the holder of a negotiable bill of exchange, under similar 
 conditions. 
 
 Evertson v. Nat. Bnk. of N"ewport, 66 
 
 W. Y. 14. 
 Dutchess Co. M. Ins. Co. v. Hach- 
 
 field, 73 K Y. 228. 
 McClelland v. Norfolk S. E. E. Co., 110 
 
 N. Y. 475. 
 Hibbs V. Brown, 112 App. Div. 217. 
 Arons v. Ziegfield, 52 Misc. 571, 572. 
 yide Eaton & Gilbert Commercial Pa- 
 per (2d ed.), p. 37. 
 
 416. 
 Judgment for A. 
 
 " Where a contract, not under seal, is made with an 
 agent in his own name, for an undisclosed principal, 
 whether he describes himself as agent or not, either the 
 agent or principal may sue upon it." 
 
 Ludwig V. Gillespie, 105 N. Y. 653. 
 
 The agent being personally liable on the contract, can sue 
 
Bae Examinatiohs and Coukses of Study. 331 
 
 on it. Tlie payment of the judgment in the action, if any, 
 ■would he a complete protection to the defendant against 
 any claim of the principal arising on the contract. 
 
 Vide Argersinger v. MacNaughton, 114 
 
 K Y. 589. 
 Trimble v. N. Y. C. & H. E. R. Co., 39 
 App. Div. 410. 
 
 417. 
 
 B has no rights as against X. 
 
 " He neither gained nor lost by the transaction in a legal 
 sense," and was not harmed by it nor legally injured, for 
 he can only be made to pay what he was legally bound to 
 pay, viz., the amount of the judgment and interest. A's 
 mere statement that he would discharge the judgment for 
 $1,000 was not binding and was void for want of considera- 
 tion. X was not, under the circumstances, B's agent so 
 as to enable B to ratify his act, nor was the act performed 
 under such circumstances as to create an estoppel. 
 
 Garvey v. Jarvis, 46 IST. Y. 310, 313. 
 
 418. 
 
 Judgment for B. The omission of C to disclose the 
 previous misconduct of A was such a fraudulent conceal- 
 ment of a material fact which he was required in good faith 
 to disclose that he could not recover of B. 
 
 U. S. Life Ins. Co. v. Salmon, 91 Hun, 
 
 535; affirmed, 157 N. Y. 682. 
 32 Cyc. 62. 
 
 419. 
 
 The co-sureties were not liable. They undertook only to 
 secure the fidelity of A while he was bookkeeper both in 
 the performance of the duties of that position and of any 
 other trust or employment imposed upon or assumed by 
 him during the time he was bookkeeper, and the bond 
 
i332 Bae Examinations and Coueses of Study. 
 
 ceased to be binding upon the sureties when A ceased to act 
 as such bookkeeper. 
 
 Nat. Meeh. Bkg. Assn. v. Conklin, 90 
 
 K Y. 116. 
 Smith V. Molleson, 148 IST. Y. 241. 
 Tradesmen's ISTat. Bank v. Nat. Surety- 
 Co., 169 E". Y. 563. 
 
 420. 
 
 Judgment for A. The company was estopped from as- 
 serting a forfeiture on the ground that it made a mistake 
 in its statement as to the payment of the premium due in 
 November, 1897. 
 
 Meeder v. Provident Sav. Life Assur- 
 ance See, 58 App. Div. 80; affd., 
 171 N. Y. 432. 
 
 421. 
 
 Judgment for the Insurance Co. The oral assent of the 
 agent did not waive the conditions of the policy and the 
 foreclosure suit and sale rendered it void. 
 
 Moore v. H. F. Ins. Co., 141 N. Y. 219. 
 Gray v. The Germania Ins. Co., 155 N. 
 
 Y. 180. 
 Northam v. Dutchess Co. Mut. Ins. Co., 
 166 N. Y. 319-323, 
 
 422. 
 
 Judgment for B. The relation between the parties was 
 that of bailment. A was a warehoiiseman and bound to 
 exercise ordinary care and prudence, and not having done 
 so was liable. 
 
 Jones V. Morgan, 90 N. Y. 4. 
 
 Eoberts v. S. S. D. Co., 123 N. Y. 55. 
 
 423. 
 
 Judgment for A. The delivery of the bonds to A's wife 
 was not equivalent to a delivery to her husband and did not 
 discharge B from liability. 
 
 Kowing V. Manly, 49 N. Y. 192. 
 
Bab Examinations and Coueses of Study. 333 
 
 424. 
 
 No. There was no complete contract as to the goods de- 
 scribed in the second order. The catalogue stating prices 
 and terms of sale contained no proposition as to the amount 
 of goods which A was willing to sell on the terms stated. 
 Until an offer is made by one party, complete and definite 
 in all its terms, it is impossible for the other party to make 
 a valid contract by a mere acceptance. 
 
 Schenectady Stove Co. v. Holbrook, 101 
 N. Y. 45-49. 
 
 425. 
 
 B had judgment. The contract that if B became dis- 
 satisfied he. A, would take the bonds back and return to E 
 the money paid therefor was not within the Statute of 
 Frauds, 
 
 Fitzpatrick v. Woodruff, 96 N. Y. 561. 
 
 426. 
 
 'No. The fact that the defendant made repairs and 
 changes in the locomotive after the accident was imma- 
 terial and not competent on the question of negligence. 
 
 "Whether the defendants were negligent was a ques- 
 tion to be decided upon the facts as they existed at the time 
 of the injury. What the defendants did afterward was 
 immaterial." * * * "It would be plainly unjust to 
 the defendants that they should not take additional precau- 
 tions against accidents, without the risk that these precau- 
 tions should be construed into an admission of prior 
 negligence." 
 
 Corcoran v. Village of Peekskill, 108 
 
 K Y. 151. 
 Getty V. Town of Hamlin, 127 IsT. Y. 
 
 636. 
 Columbia & Puget Sound E. Co. v. Haw- 
 thorne, 144 U. S. 202. 
 
334 Bab Examinations and Courses of Study. 
 
 427. 
 
 Admit. Declarations against interest. 
 " The declarations of a testator or intestate, binding him 
 or binding or impairing his estate, may be given in evidence 
 against his personal representatives, in all cases where they 
 wonld have been competent against himself, if he had been 
 living and a party to the action." 
 
 Hurlburt v. Hnrlburt, 128 IST. Y. 420. 
 Vide Tompkins v. Fonda Glove Lining 
 Co., 188 K Y. 261, at pp. 264. 
 265. 
 
 428. 
 The ruling was wrong. 
 
 The wife's letter was " a deliberate ex parte narrative of 
 facts and opinions and is inadmissible against the defend- 
 ant." 
 
 "V\Tiitman v. Egbert, 27 App. Div. 374. 
 Buchanan v. Foster, 23 App. Div. 542. 
 
 429. 
 
 The Court admitted the declaration of the party plaintiff 
 and excluded those made by the witness B, who was not a 
 party to the action. 
 
 " The statements of a party can always be given in evi- 
 dence against him, whether he is a witness or not. It is not 
 necessary to examine him previously as to whether he has 
 made such statements." 
 
 Kennedy v. Woods, 52 Hun, 50. 
 Eoot V. Brown, 4 Hun, 797. 
 16 Cyc. 1038. 
 The rule is different as to witnesses not parties. 
 The testimony of a witness may be contradicted if it has 
 reference to statements made to others, provided his atten- 
 tion is first called to the time, place, and person to whom 
 the statement is claimed to have been made and if denied, 
 such person may then be called to contradict him, thus dis- 
 crediting his testimony as a witness. 
 
 Ankersmit v. Tuch, 114 N. Y. 55. 
 McCulloeh V. Dobson, 133 IST. Y. 114. 
 People V. Mallon, 116 App. Div. 430. 
 
Bae ExAMiNATioisrs AND OouESES OF Study. 335 
 
 430. 
 
 Objection overruled and testimony admitted. 
 "An unsworn statement concerning matters of genealogy, 
 may, if relevant, upon an issue of pedigree, be admitted on 
 account of the necessity of the case." 
 
 16 Cyc. 1223, 1224. 
 
 People V. Fulton Fire Ins. Co., 25 Wend. 
 205. 
 
 Hearsay evidence is competent in an issue of pedigree. 
 Eisenlord v. Clum, 126 N. Y. 552. 
 Washington v. Bank for Savings, 171 
 N. Y. 166. 
 
 431. 
 
 Both requests were refused. 
 
 A defendant indicted for receiving stolen property know- 
 ing the same to have been stolen, may be tried and convicted 
 either in the county where he originally received the stolen 
 property or in any county in which he afterwards had it. 
 
 Penal Law (Laws 1909, chap. 88), 
 
 sec. 1308. 
 Wills V. People, 3 Park. 473. 
 
 432. 
 
 Not correct. Proof of good character in itself may create 
 a doubt sufficient to warrant an acquittal, even if the rest 
 of the evidence should otherwise appear conclusive. 
 People V. Elliott, 163 W. Y. 14. 
 People V. Bonier, 179 K Y. 315. 
 People V. Pekarz, 185 E". Y. 470. 
 People V. Van Gaasbeck, 118 App. Div. 
 
 511. 
 12 Cyc. 417. 
 
 433. 
 
 No, he cannot be. 
 
 " The burning of a building under circumstances which 
 show beyond a reasonable doubt that there wa^s no intent to 
 destroy it, is not arson. 
 
 Penal Law (Laws 1909, chap. 88), 
 sec. 225, 
 
336 Bae Examinations and Cotteses of Study. 
 
 Provided the building is one mentioned in Penal Law, 
 section 223, the unlawful burning of which constitutes arson 
 in the third degree. 
 
 People V. Fanshawe, 137 N. T. 68. 
 
 434. 
 
 Yes. 
 
 "The general rule is that the owner of property is not 
 liable for the negligent acts of an independent contractor 
 with whom he has an agreement for the performance or 
 prosecution of wort. But to this rule there is an exception. 
 If the work itself creates the danger or injury, then the ulti- 
 mate superior or proprietor is liable to persons injured even 
 though the work is intrusted to an independent contractor. 
 MulHns V. Siegel Cooper Co., 183 IST. Y. 
 136. 
 In addition an abi.itting owner is responsible to travelers 
 for defects in the highway caused by himself. 
 
 Id., p. 136 ; citing Dillon on Municipal 
 Corporations, sec. 1012, and cases 
 there cited. 
 City of Eochester v. Campbell, 123 
 E". Y. 405, 417. 
 
 435. 
 
 The contractor is not liable. The act of blasting was a 
 lawful act, and as it was not done in a negligent or im- 
 proper manner, nor with want of skill, and as the premises 
 of plaintifF were not invaded by projectiles of any kind, 
 there was no trespass; the injury was consequential and A 
 has no legal ground of complaint. 
 
 Page v. Dempsey, 184 IST. Y. 245. 
 
 436. 
 
 No. 
 
 "An intent to defraud may not be imputed to a purchaser 
 of property on credit merely from the facts that he was, to 
 his knowledge, insolvent at the time of the purchase, and 
 that he omitted to disclose such condition to his vendor; 
 
Bak Examinations and Coubses of Study. '^S7 
 
 these must be accompanied by facts disclosing an intent to 
 acquire the property without paying for it." 
 
 Morris v. Talcott, 96 K Y. 100. 
 
 Shotwell V. Dixon, 163 N. T. 52. 
 
 437. 
 
 The bequest is valid to the extent of one-half of the hus- 
 band's estate and no more. " No person having a husband, 
 vnfe, child or parent, shall by his or her last will and testa- 
 ment, devise or bequeath to any benevolent, charitable, lit- 
 erary, scientific, religious or missionary society, association 
 or corporation in trust or otherwise, more than one-half part 
 of his or her estate, after the payment of his or her debts, 
 and such devise or bequest shall be valid to the extent of 
 one-half, and no more." 
 
 Decedent Estate Law (Laws 1909, chap. 
 18), sec. 17. 
 
 The missionary society gets one-half of the estate, the 
 husband dies intestate as to the other half of which the 
 wife receives one-third and the child two-thirds. 
 Id., sec. 98. 
 
 438. 
 
 Peter, The Statute so provides. The devise does not 
 lapse, because Peter is a descendant of John, who was the 
 son of the testator and the person to whom the devise was 
 originally made. 
 
 " Whenever any estate, real or personal, shall be devised 
 or bequeathed to a child or other descendant of the testator, 
 and such legatee or devisee shall die during the lifetime 
 of the testator, leaving a child or other decedent who shall 
 survive such testator, such devise or legacy shall not lapse, 
 but the property so devised or bequeathed shall vest in the 
 surviving child or other descendant of the legatee or devisee, 
 as if such legatee or devisee had survived the testator and 
 had died intestate." 
 
 Decedent Estate Law (Laws 1909, 
 
 chap. 18), sec. 29. 
 Wide Pimel v. Betjemann, 183 N. Y. 
 201, 202, per Vann, J. 
 
 23 
 
33"8 Bae Examiitations an'd Coueses of Study. 
 
 439. 
 
 The legacy was void because John was one o£ the two 
 subscribing witnesses to the ■^yil^ which could not be proved 
 without his testimony. 
 
 But, as John was the son of the testator, and would have 
 been entitled to a share of the testator's estate in case the 
 will was not established " Then so much of the share that 
 would have descended or have been distributed to such wit- 
 ness shall be saved to him, as will not exceed the value of the 
 devise or bequest made to him in the will, and he shall re- 
 cover the same of the devisees or legatees named in the will 
 in proportion to, and out of the parts devised and be- 
 queathed to them." 
 
 Decedent Estate Law (Laws 1909, 
 chap. 18), sec. 27. 
 
 440. 
 
 The trust is invalid after John reaches forty-five as 
 against creditors and the judgment is collectible therefrom. 
 
 " It is contrary to sound public policy to permit a person 
 to have the absolute and uncontrolled ownership of property 
 for his own purposes, and to be able at the same time to 
 keep it from his creditors." 
 
 The property is John's for the asking and no words can 
 make an instrument strong enough to hold it for John and 
 keep it from his creditors. 
 
 Ullman v. Cameron, 186 JST. Y. 339. 
 
 441. 
 
 Under the facts stated a Court of equity would entertain 
 jurisdiction and compel specific performance. " The rule is 
 that, as to contracts pertaining to personal property, a party 
 should be confined to his action for damages, unless it ap- 
 pears that he is entitled to the thing contracted for in specie, 
 which to him has some special value and which he cannot 
 readily oibtain in the market, or in cases where it is apparent 
 that compensation in damages would not furnish a complete 
 and adequate remedy." 
 
 Butler V. Wright, 186 N. T. 259, at 262 
 and cases cited. 
 
Bab Examinations and Coueses of Study. 330 
 
 442. 
 The transaction is illegal. Equity will not interfere and 
 will leave the parties where it finds them. 
 
 :Nrellis V. Clark, 20 Wendell, 24. 
 Knowlton v. Congress & E. S. Co., 57 
 K Y. 518; 166 K Y. 360. 
 " He who comes into equity must come with clean hands." 
 16 Cyc. 144, 146 and cases cited. 
 
 443. 
 
 The proxy was invalid. The Statute provides that no 
 oiBcer, clerk, teller or bookkeeper of a corporation formed 
 under or subject to the banking laws shall act as proxy for 
 any stockholder at any meeting of such corporation. 
 
 General Corporation Law (L. 1909, 
 chap. 28), sec. 26. 
 
 444. 
 
 Yes. A can make an application to the Supreme Court, 
 on notice to the corporation, for an order requiring it to 
 issue to him a new certificate of stock in place of the one 
 destroyed. 
 
 Stock Corp. Law (L. 1909, chap. 61), 
 sec. 67. 
 
 445. 
 
 Motion denied. In action brought by or against a cor- 
 poration, the plaintiff need not prove upon the trial the ex- 
 istence of the corporation unless the answer is verified and 
 contains an afiirmative allegation that the plaintiff or the 
 defendant as the case may be is not a corporation. 
 
 Code of Civil Procedure, sec. 1776. 
 
 446. 
 
 Judgment for C. Under the statute A was entitled to 
 compensation for her services and the payment thereof by 
 
340' BaE ExAMINATIOIirS AND COTJESES OF StUDT. 
 
 C discharged the claim against him, there being no express 
 agreement to the contrary, B had no interest in A's wages 
 and could not recover. 
 
 Domestic Relations Law (Laws 190-9, 
 chap. 19), sec. 60. 
 
 447. 
 
 Advise him to procure a writ of Habeas Corpus from the 
 Supreme Court and that upon its return the Court wiU 
 award his custody to the parent it thinks proper and for 
 the best interests of C with such conditions as the case may 
 require. 
 
 Domestic Relations Law (Laws 1909, 
 chap. 19), sec. 70. 
 
 448. 
 
 B and C took equally. The testator and C occupied to- 
 ward each other the legal relation of parent and child and 
 possessed all the rights and were subject to all the duties 
 of such relation including inheritance from each other. 
 
 Domestic Relations Law (Laws 1909, 
 
 chap. 19), sec. 114. 
 Van Beck v. Thomsen, 44 App. Div. 
 
 373, aff'd 167 N. Y. 601. 
 Dodine v, Dodine, 40 K Y. Supp. 748. 
 
 449. 
 
 It was invalid. It was in conflict with the New York 
 State Constitution which forbids the Legislature to pass any 
 private or local biU granting to any person an exemption 
 from taxation on real or personal property. 
 
 N. Y. S. Constitution, art. 3d, sec. 18. 
 
 450. 
 
 Judgment for B. The Statute extending the term of 
 office after it had been established by the Legislature was 
 
Bab Examinations and Coukses of Study. 341 
 
 not constitutional as it was an attempt by the Legislature to 
 exercise the power of appointment. 
 
 People ex rel. Bull, 46 L^. Y. 57. 
 
 People ex rel. Williamson v. McKin- 
 ney, 52 IST. Y. 374. 
 
 451. 
 
 Vide answer to Question 'No. 356, page 122. 
 
 452. 
 
 C can maintain a proceeding to compel A to remove such 
 newsstand. He may apply for a peremptory writ of man- 
 damus to compel A to remove the same as it is a proceed- 
 ing to enforce a right in which the general public is inter- 
 ested. 
 
 People ex rel. Purapyansky v. Keating, 
 168 K Y. 390. 
 
 453. 
 
 It can be maintained. However improvident the injunc- 
 tion granted, may have been, it must be obeyed and the 
 party who discbeys it will be punishable for contempt as 
 the Court had jurisdiction to grant it. 
 
 Erie E. E. v. Eamsey, 45 N. Y.,637. 
 People ex rel. OaufFman v. Van Buren, 
 136 ]Sr. Y. 252. 
 
 454. 
 
 Move to withdraw a juror and postpone the trial to a 
 subsequent time when you can obtain the attendance of the 
 witness or his testimony. 
 
 Glendening v. Canary, 5 Daly, 489, affd. 
 
 64 N. Y. 636. 
 Dillon V. Cockroft, 90 IST. Y. 649. 
 2 Eumsey's Practice, 332. 
 
 455. 
 
 He has. Upon establishing the mistake C might apply 
 at that term of the Court and the Court might correct its 
 
342 Bae Examinations and Coukses of Study. 
 
 record so as to make it conform to the actual findings of the 
 jury. 
 
 Dalrymple v. Williams, 63 1^. T. 361. 
 
 Hodgkins v. Mead, 119 N. Y. 167. 
 
 456. 
 
 Judgment for A. The judgment was one directing the 
 payment of sums of money within the meaning of section 
 1240 of the Code of Civil Procedure; that it was entitled 
 to be docketed by the proper clerk and was enforceable by 
 execution and not by proceedings for contempt. 
 
 Harris v. Elliott, 163 N. T. 269. 
 
 457. 
 
 Objection overruled. 
 
 "An agreement made between parties prior to or contem- 
 poraneously with their executing a written obligation aa 
 sureties, by which one promises to indemnify the other from 
 loss, does not contradict or vary the terms or legal effect of 
 the written obligation and may be proved by parol evi- 
 dence." 
 
 Earry v. Eansom, 12 K Y. 462. 
 Wills" V. Miller, 66 IST. Y. 255. 
 Easterly v. Barber, 66 K Y. 436. 
 
 458. 
 
 The objection was overruled. The conversation was not 
 confidential as it was not expressly made so nor was it of 
 a confidential nature or induced by the marital relation. 
 
 Parkhurst v. Berdell, 110 N. Y. 386- 
 
 393. 
 Warner v. P. P. Co., 132 K Y. 186. 
 
 459. 
 
 The motion was denied. The Court could take judicial 
 cognizance of the population of the county only when it was 
 authenticated by a public record. 
 
 Adams v. Elwood, 176 IST. Y. 106. 
 
Bab EsAMiNATioiTS AiTD OouESEs oi' Studt. 343 
 
 460. 
 
 Objection overruled. Section 829 of tie Code of Civil 
 Procedure expressly provides that a person shall not be 
 deemed interested for the purpose of that section by reason 
 of being a stockholder or officer of any banking corporation 
 which is a party to the action or interested in the event 
 thereof. 
 
 Code of Civil Procedure, sec. 829. 
 
 461. 
 
 Objection was overruled. The evidence was admissible 
 as part of the res gestae, and to show that the chattel mort- 
 gage was given with an intent to defraud B's creditors. 
 Potts V. Hart, 99 N. Y. 168, 173. 
 
 462. 
 
 The people. While the defendant was presumed to be 
 sane, upon which presumption the prosecution might rest 
 without proof, yet where evidence was given tending to 
 establish insanity, then the question was whether the crime, 
 if committed, was committed by a person responsible for his 
 acts, and the affirmative was held by the prosecution. 
 
 Brotherton v. The People, 75 IST. T. 159. 
 
 People V. Tobin, 176 K T. 278, 285. 
 
 People V. Spencer, 179 N. T. 408, 411. 
 
 463. 
 
 has the title to the farm. B is estopped from disput- 
 ing C's title and from setting up his unrecorded destroyed 
 deed against it. 
 
 23 Am. & Eng. Ency. Law (2d ed.), 
 
 p. 994. 
 Lawrence v. Stratton, 6 Cush. (Mass.) 
 163. 
 
 464. 
 
 B and each owned one-half as tenants in common. 
 "A tenancy by the entirety is founded upon the marital 
 relation and upon the legal theory that the husband and 
 
344 Bae Examinations and Coueses of Study. 
 
 wife are one. It depends for its continuance upon the con- 
 tinuance of the relation, and when the unity is hroken by a 
 divorce the tenancy is served; each takes a proportionate 
 share of the property as a tenant in common." 
 
 Stelz V. Shreck, 128 JST. Y. 263. 
 In case of a divorce dissolving the marriage contract, for 
 the misconduct of the wife, she shall not be endowed. 
 
 Keal Property Law (Laws 1909, chap. 
 
 52), sec. 196. 
 Vide Code Civil Procedure, sec. 1760. 
 14 Cyc. 934. 
 
 Price V. Price, 124 N. T. 589. 
 Matter of Ensign, 103 IST. Y. 286. 
 Eowler's Keal Property Law (2d ed.), 
 p. 575. 
 C, the son, took title to his father's real estate by descent 
 free from his mother's dower. 
 
 Decedents' Estate Law (chap. 18, Laws 
 1909), sec. 81. 
 
 465. 
 
 The wheat belongs to the administrators of B and they 
 have the right to enter upon the farm and harvest it. It is 
 an emblement; a crop which grows yearly and is raised by 
 industry and labor; it is called " fructus industriales." 
 (15 Cyc. 537-8.) 
 
 "A tenant for life or his legal representative is entitled 
 to emblements, that is, the crops planted by him prior to the 
 termination of the life estate, in all cases where the life 
 estate is terminated by the act of God, as by the death of 
 the tenant" (16 Cyc. 620). 
 
 " The doctrine of emblements is founded entirely on the 
 ■uncertainty of the termination of the tenant's estate. 
 Where that is certain there exists no title to the emble- 
 ments." 
 
 Whitmarsh v. Cutting, 10 John. Eep. 
 
 360, 361. 
 Stewart v. Doughty, 9 John. Eep. 108. 
 Pfanner v. Sturmer, 40 Howard, 401. 
 Batterman v. Albright, 122 N. Y. 484. 
 
Bab Examinations and Coueses of Study. 349 
 
 466. 
 
 Court granted deiendant's motion for a nonsuit. 
 The contract for a portrait of B's wife to his satisfaction 
 was one " involving taste, fancy, interest, personal satisfac- 
 tion and judgment." (Crawford v. M. & E. Pub. Co., 163 
 N. Y. 408.) It differed from commercial contracts wherein 
 that which the law will say a contracting party ought in 
 reason to be satisfied with, that it will say he is satisfied 
 with. (Duplex Safety Boiler Co. v. Garden, 101 N. Y. 
 387.) In the contract in question, neither the court nor 
 the jury had the right to decide that the defendant was or 
 ought to be satisfied with the portrait, if his opinion was 
 honestly entertained. 
 
 Moore v. Goodwin, 43 Hun, 534. 
 
 Barry v. Eainey, 27 Misc. 772. 
 Vide generally: 
 
 Smith V. Eobson, 148 K Y. 252. 
 
 Hoffman v. Gallagher, 6 Daly, 42. 
 
 Parker v. Hyde, 53 Misc. 549. 
 
 Hummel v. Stem, 15 Misc. 27. 
 
 467. 
 
 Yes. B's defense was successful. 
 
 Part payments made by one of two or more joint and 
 several makers of a note does not take the note out of the 
 Statute of Limitations as to the others, and this whether 
 such payment is made before or after the debt has been 
 barred. The common liability of several for a debt does 
 not of itself make each the agent of the others to bind them 
 by part payment. The part payment must be made by 
 the debtor or by his authority in order to take the case out 
 of the statute. 
 
 Murdock v. Waterman, 145 ISr. Y. 55, 
 63, 64; citing. Van Keuren v. 
 Parmelee, 2 N. Y. 623. 
 Shoemaker v. Benedict, 11 JN". Y. 177. 
 yide, Connecticut Trust Co. v. Wead, 
 
 33 Misc. 374. 
 Mack V. Anderson, 165 JST. Y. 529. 
 
346 Bae Examinations and Coueses of Study. 
 
 468. 
 
 No. A was not liable as a partner. 
 "A person who has no interest in the business of a firm, 
 or in the capital invested, save that he is to receive a share 
 of the profits, as a compensation for services, or for money- 
 loaned for the benefit of the business is not a partner and 
 cannot be held liable as such by a creditor of the firm." 
 
 Eichardson v. Hughitt, 76 E". Y. 65. 
 Eager v. Crawford, 76 N. T. 97. 
 Cassidy v. Hall, 97 IST. Y. 159. 
 Hackett v. Stanley, 115 K Y. 631. 
 First ]^. B. V. Gallaudet, 122 IST. Y. 
 657; Meehan v. Valentine, 145 
 IJ. S. 624, 
 
 469. 
 
 B's transaction was legal. D has neither rights nor 
 remedy. The question assumes that there was no bankruptcy 
 law. 
 
 "A firm, although insolvent, has a right to make prefer- 
 ences among its creditors and one partner may transfer the 
 partnership effects directly to a firm creditor in payment 
 of his debt, without the knowledge or consent of his co- 
 partner." 
 
 Bulger V. Eosa, 119 K Y. 459. 
 Schwarzschild & S. Co. v. Matthews, 39 
 App. Div. 477. 
 
 470. 
 
 Judgment for B. The sole defense pleaded was failure 
 of consideration. 
 
 The exchange of the notes was a consummated transac- 
 tion; each note constituted a good consideration for the 
 other, and there was no failure of consideration, even though 
 one of the notes was not paid at maturity. 
 
 Eaton & Gilbert on Com. Paper (2d 
 
 ed.), p. 281. 
 Eice V. James, 131 W. Y. 149. 
 State Bank v. Smith, 155 K Y. 196. 
 Milius V. Kaufman, 104 App. Div. 444. 
 
Bab Examinations and Cotteses of Study. 347' 
 
 471. 
 
 Judgment for A, the defendant. 
 
 "Proof that a promissory note was fraudulent as between 
 the payee and maker shifts to a transferee suing thereon, 
 the burden of proof and it becomes necessary for him to 
 show not only payment of value by him, but the circum- 
 stances under which he became the holder of the note." 
 
 Citizens' N. B. v. Weston, 162 K Y. 
 
 113. 
 Douai V. Lutjens, 21 App. Div. 254; 
 
 affd.; 165 K Y. 622. 
 Citizens' Bank v. Cowles, 89 App. Div. 
 
 285. 
 Eaton & Gilbert on Com. Paper (2d Ed.) 
 p. 393. 
 
 472. 
 The merchant is liable. 
 
 The course of dealing between the parties gave the right 
 to the broker to assume the authority of the agent and tho 
 bona fides of the note in the absence of knowledge or circum- 
 stances to put him on inquiry and he was justified in du- 
 counting the same. 
 
 Exchange Bank v. Monteath, 26 'N. Y. 
 
 505. 
 Debold V. Opperman, 111 IST. Y. 540. 
 
 473. 
 
 Yes. " The law will not endure that a principal shall 
 keep the product of the agent's act and yet repudiate his 
 authority. Even in the case of fraudulent representations 
 .by the agent, never at all authorized or suspected by the 
 principal, a reception and retention of the proceeds may 
 make the latter responsible for the fraud." 
 
 Ooykendall v. Constable, 99 IST. Y. 314. 
 ISTational Life v. Minch, 53 N. Y. 144. 
 Krumm v. Beach, 25 Hun, 293; affd., 
 
 96 K Y. 398. 
 Jones V. Jones, 120 N. Y. 599. 
 
348 Bae Examinations and Coueses of Stitdt. 
 
 474. 
 
 A, the surety, is discharged. 
 
 " A surety will be discharged by any arrangement be- 
 tween the principal debtor and the creditor which operates as 
 a fraud upon the surety ; as where the money has been offered 
 to the creditor, and he without the consent of the surety 
 requested the debtor to hold it longer." 
 
 Sailly V. Elmore, 2 Johns. Ch. 496. 
 Gh:iswold v. Jackson, 2 Edwards Oh. 
 461. 
 
 475. 
 
 A has no claim against B, under the circumstances stated. 
 " The obligation of one of two co-sureties is to pay the 
 whole debt. His right is, if he pays the whole debt, to re- 
 cover one-half from his co-surety or the whole from the 
 principal. If he pays less than the whole debt, he cannot 
 recover from his co-surety, though he may from the prin- 
 cipal, more than the amount which he has paid in excess 
 of the moiety which, as between him and his co-surety, it 
 was his duty to pay." 
 
 Morgan v. Smith, 70 N. T. 537. 
 Wanamaker v. Powers, 102 App, Div. 
 
 493. 
 Hood V. Hayward, 124 N. Y. 16. 
 
 476. 
 
 Judgment for A. The liability of an insurer upon a 
 building destroyed by fire is not affected in the absence of 
 any exemption in the policy, by the fact that it cost the 
 owner nothing, or that he might compel another person to 
 replace it without expense to him. 
 
 Foley V. Manufacturers' Ins. Co., 152 
 
 ]Sr. Y. 131. 
 Michael v. Prussian ISTat. Ins. Co., 171 
 
 K Y. 39. 
 
Bae Examinations and Coueses of Study. 34-9 
 
 477. 
 Judgment for plaintiff. The exemption from liability for 
 death from inhaling of gas referred only to a voluntary and 
 intelligent act of the insured and not to an involuntary and 
 unconscious one and therefore a recovery might -be had for 
 death caused by the accidental inhalation of illuminating 
 gas. 
 
 Paul V. Travellers Ins. Co., 112 N. Y. 
 
 472. 
 Menneiley v. Employers' Liability As- 
 surance Corporation, 148 N". Y. 
 596. 
 
 478. 
 
 Yes. Where the vessel vs^as lost through the negligence of 
 
 such owner under the circumstances stated, he is liable to 
 
 the co-owners for the loss. He was in no sense the agent of 
 
 the co-owners, but was the owner of the vessel, pro hac vice. 
 
 Williams v. Hays, 143 IST. Y. 442 (S. 
 
 C, 157 K Y. 541). 
 The Barnstable, 181 U. S. 468. 
 
 479. 
 
 The title was in B and the contract was in the nature of 
 a bailment. 
 
 Mack V. Snell, 140 N. Y. 193. 
 
 480 
 
 The Court refused the requests. 
 
 The contract of sale was fully executed, delivery was had 
 and the money paid; it could not be rescinded. 
 
 The proper measure of damages was the difference be- 
 tween the value of the article if it had been as warranted 
 and the actual value, and not the purchase price. 
 
 Isaacs V. Wanamaker, 189 IST. Y. 122. 
 
 481 
 
 B has no rights against A. The contract was entire and 
 the part as to the sale of the automobile being void under 
 the Statute of Frauds, the entire contract was unenforcable. 
 20 Cyc, 285. 
 
 " If part of an entire contract is void under the Statute of 
 Frauds, the whole is void: a party will not be permitted lo 
 
350 Bae Examinations and Coueses of Study. 
 
 separate the parts of an entire agreement, and recover on 
 one part, the other being void." 
 
 De Beerski v. Paige, 36 N. Y. 537. 
 
 482 
 
 The Court directed that A be tried separately. 
 
 "When two or more defendants are jointly indicted for 
 a felony, any defendant requiring it, must be tried sepa- 
 rately. In other cases, defendants jointly indicted, may be 
 tried separately or jointly in the discretion of the Court." 
 Code of Criminal Procedure, sec. 391. 
 
 483 
 
 A is guilty of manslaughter in the second degree. 
 Homicide is manslaughter in the second degree -when com- 
 mitted without design to effect death, by any act, procure- 
 ment or culpable negligence of any person, -which- according 
 to the provisions of the Penal La-w does not constitute the 
 crime of murder in the first or second degree or man- 
 slaughter in the first degree. 
 
 Penal La-w, sec. 1052 (La-ws 1909, chap. 
 
 88). 
 Vide, 2 Park. Cr. Eepts. 16. 
 People V. Beckwith, 103 N. Y. 360. 
 
 484. 
 All -were convicted of murder in the second degree. 
 "A person -who, by previous appointment made -within 
 the state, fights a duel -without the state, and in so doing 
 infiicts a -wound upon his antagonist, -whereof the person 
 injured dies ; or -who engages or participates in such a duel, 
 as a second or assistant to either party, is guilty of murder 
 in the second degree, and may be indicted, tried and con- 
 victed in any county of this state." 
 
 Penal La-w, sees. 1047, 735, 736. 
 
 Code of Criminal Procedure, sec. 133. 
 
 485. 
 
 The Court decided to grant the order. Its object is to 
 obtain testimony concerning the nature and extent of plain- 
 tiff's alleged personal injuries for use upon the trial, so as to 
 
Bab Examinations and Coueses of Study. 351 
 
 aid tlie Court and jury in the correct determination of the 
 issue of fact raised hy the pleadings thereon. 
 
 Vide, Lyon v. M. E. Co., 142 IST. Y. 298. 
 
 Tirpak v. Hoe, 53 Misc. 532. 
 
 Code Civil Procedure, sees. 870, 873. 
 
 486 
 
 A's motion for a nonsuit denied. 
 
 "A false and fraudulent representation, made with intent 
 to deceive, as to material facts v^hich necessarily affect the 
 value of the shares of stock in a corporation, constitutes a 
 cause of action against the party making it, where by means 
 thereof he has induced another to purchase such shares." 
 Schwenk v. Naylor, 102 N. Y. 683. 
 
 A recovery can he had of the party in such a case although 
 he has received no benefit from the transaction. 
 
 Mack V. Latta, 178 N. Y. 529. 
 
 487 
 
 Judgment for A the infant defendant. 
 
 In this ease the plaintiff " retains the benefit of the eon- 
 tract, he does not disaffirm it. His action rests on the ground 
 that he has made a contract and it is necessary for his re- 
 covery that he should show that a binding contract has been 
 made. Then infancy becomes a defense. The infant says 
 there has been no binding contract; no action therefore lies 
 for fraud in respect to a contract he could not make. The 
 alleged contract is the substantive ground of, or the induce- 
 ment to, the cause of action; for, if there was no contract, 
 then there could be no fraud in the making of it, and 
 disproving the contract, defeats the action. * * * Infancy 
 is a bar." 
 
 Hewitt V. Warren, 10 Hun, 560, 565. 
 Vide, Little v. Gallus, 4 App. Div. 584. 
 
 "A cause of action in contract cannot be changed to a tort 
 in order to deprive the infant of the benefit of the plea of 
 infancy." 
 
 22 Cyc. 621. 
 
352 Bak Examinations and Coueses of Study. 
 
 488. 
 
 B should have judgment. 
 
 "Where a legacy is given, and is directed to be paid by the 
 executor who is a devisee of real estate, such estate is 
 charged with the payment of the legacy; and the devises 
 upon accepting the devise becomes personally bound to pay 
 the legacy ; and this although the land devised to him proves 
 to be less in value than the amount of the legacy." 
 
 Brown v. Knapp, 79 K Y. 136. 
 Clift V. Moses, 116 N. Y. 153. 
 
 489. 
 
 The widow, and the two sons, B and C, take the amount 
 of the legacy which failed. Each takes a third under the 
 Statute of Distributions (Code Civil Procedure, sec. 2732, 
 subd. 1), for as to that A died intestate, as though he had 
 left no will. 
 
 "Where a testator fails to make a legal devise * * * 
 or having legally devised it, the devise fails for any cause, 
 the heir will inherit notwithstanding there is an express pro- 
 vision in the will that he shall not take any part of the 
 estate." 
 
 Gallagher v. Crooks, 132 IST. Y. 338. 
 Herzog v. Title Guarantee & T. Co., 177 
 
 K Y. 97, 98. 
 Pomroy v. Hincks, 180 K Y. 73. 
 
 490. 
 
 The brother, sister and E each inherit one-quarter; B, 
 and D inherit the remaining quarter collectively in equal 
 shares. 
 
 A died intestate without lawful descendants and left 
 neither father nor mother, hence his brothers and sisters and 
 their descendants inherit his real property. The brother and 
 sister inherit a quarter each, E inherits the share his parent 
 would have received, if living, and B, C and D collectively 
 inherit the share which their parent would have received, if 
 living. 
 
 Decedent Estate Law (Laws 1909, 
 chap. 18), sec. 87. 
 
Bae Examinations and Coukses op Study. '353 
 
 491. 
 
 Judgment for B. It does not appear that B made any 
 representations as to the acreage of the estate, nor as to its 
 boundaries (Paine v. Upton, 87 N. Y. 327; Belknap v. 
 Sealey, 14 N. Y. 143). B was not obliged to state the acre- 
 age if not requested (Dambmann v. Schulting, 75 W. Y. 55 ; 
 Stettheimer v. Killip, id. 282). A relied on his own in- 
 vestigation and although he was mistaken, B made no repre- 
 sentations and was not guilty of fraud, hence equity will not 
 interfere. (]!Torthrop v. Sumney, 27 Barbour, 196.) 
 
 Mere mistake by one of the parties in the absence of fraud 
 in the other not sufficient to afford relief in equity. (Stett- 
 heimer V. KiUip, 75 E". Y. 282 ; Stem v. Ladew, 47 App. 
 Div. 340.) 
 
 492. 
 
 Permission should be denied. " Damages, as in an action 
 at law, cannot be given in equity where the plaintiff has 
 failed to establish his right to equitable relief." (Sadlier 
 V. City of ISTew York, 185 IST. Y. 414, per Chase, J. ; Sulli- 
 van V. Traders Ins. Co., 169 IST. Y. 213 ; Baily v. Homthal, 
 154 ]Sr. Y. 648 ; Murtha v. Curley, 90 IST. Y. 372), and there 
 is nothing special in an action to foreclose a mortgage, 
 where the execution of the bond is alleged, to take the case 
 out of the general rule (Dudley v. Congregation, etc., of St. 
 Francis, 138 JST. Y. 451; Eeichert v. Stilwell, 172 IST. Y. 
 89). 
 
 493. 
 
 The deed, though absolute in form, was in fact a mortgage. 
 The tender and refusal amounted to a payment of the debt 
 (if kept good) and A can bring an action in equity to have 
 the deed declared a mortgage and cancelled of record. 
 
 James v. Johnson, 6 Johns. Ch. 417. 
 
 Murray v. Walker, 31 E". Y. 399. 
 
 Thompson v. Hickey, 8 Abb. N. C. 159. 
 
 Barry v. Hamburg-Bremen Eire Ins. 
 Co., 110 E". Y. 5. 
 
 Shattuek v. Bascom, 1P5 K Y. 40. 
 
 23 
 
354 Bae Examinations and Coueses of Study, 
 
 494. 
 
 The value of each share shall not he less than five nor 
 more than one hundred dollars. 
 
 The amount of capital not less than five hundred dollars, 
 with which said corporation will begin business. 
 
 The Business Corporations Law (L. 
 1909, chap. 12), sec. 2. 
 
 495. 
 
 A, the plaintiff, should have judgment. 
 In the absence of knowledge of the by-law, A was justified 
 in assuming that X, as general agent to purchase supplies, 
 had the right to make contracts within the scope of his 
 agency and carry his authority into effect. 
 
 Eathbun v. Snow, 123 K T. 343. 
 A general agent of a corporation has power, prima facie, 
 to do any act which the directors could authorize or ratify. 
 Hastings v. B. L. Ins. Co., 138 'S. Y. 
 
 4V9. 
 Oakes v. C. W. Co., 143 N". Y. 436. 
 
 496. 
 
 A is liable. 
 
 One who receives from the officer of a corporation, the 
 check of the corporation to pay for the personal debt of such 
 officer does so at his peril. Prima facie the act was unlaw- 
 ful and unless actually authorized, A will be deemed to have 
 taken the same with notice of the rights of the corporation. 
 
 Eochester & C. T. E. Co. v. Paviour, 164 
 
 K Y. 281, 192 N. Y. 61. 
 Eeynolds El. Co. v. Merchants Nat. 
 
 Bank, 55 App. Div. 5. 
 Orr V. South Amboy T. C. Co., 113 App. 
 
 Div. 104. 
 Wilson V. M. E. E. Co., 120 N. Y. 150. 
 Manhattan L. Ins. Co. v. E. S. S. & G. 
 S. E. E. E. Co., 139 K Y. 151. 
 
Bar Examinations and Coueses of Study. •'^35 
 
 497. 
 The neighbor. The father's notification should have been 
 in writing. 
 
 Dom. Eel. Law (Laws 1909, chap. 19), 
 
 sec. 72. 
 Vide McClurg v. McKercher, 56 Hun, 
 305. 
 
 498. 
 
 Judgment for the husband. 
 
 The fact that the husband and wife were living apart being 
 known to the grocer, east the burden upon him of showing 
 that the wife's act in living apart was justified, for the fact 
 negatived the presumption of the wife's agency. 
 
 Buxbaum v. Mason, 48 Misc. 396. 
 
 " If, through no fault of the husband the wife leaves his 
 home and refuses to cohabit with him, he is not responsible 
 for her necessaries, and persons furnishing her with the same 
 cannot, under such circumstances, collect from the husband. 
 The mere fact that the wife is living apart from her hus- 
 band is sufiicient notice to tradesman to institute inquiries 
 and those who give credit to her do so at their peril. * * * 
 The burden of proof is on the tradesman to show that the 
 separation has taken place under such circumstances as will 
 render the husband liable." 
 
 21 Cyc, 1223, 1224. 
 
 499. 
 
 The statute is a valid exercise of legislative power. It 
 makes provision for compensation and leaves nothing open 
 to litigation except the title to the property taken, and the 
 amount of damages which the owner may recover. 
 
 Litchfield v. Bond, 186 N. T. 74. 
 
 500. 
 
 ITo. 
 
 " It is a firmly established principle of law that no one 
 can be allowed to attack a statute as unconstitutional who 
 
350 Bar Examinations and Coueses of Study. 
 
 has no interest in it and is not affected by its pro- 
 ■visions." 
 
 8 Cyc, 787, 788. 
 
 "One who does not belong to the class that might be Ir,- 
 jured by a statute cannot raise the question of its invalidity." 
 Eed Eiver Nat. Bk. v. Craig, 181 U. S. 
 548 (45 L. ed. 994). 
 
 501. 
 . STATE OF NEW TOEK, ) 
 
 Albany City and County, f 
 
 John Doe, being duly sworn, deposes and says, that on the 
 second day of January, 1909, at the city of Albany, N. Y., 
 he personally served the annexed subpoena on Eichard Eoe, 
 the person therein named as a witness, by then and there ex- 
 hibiting to him said original subpoena and delivering to him 
 in person a subpoena ticket containing its substance, and at 
 the same time paying to him the sum of one dollar and thirty 
 cents, the fees allowed by law for traveling to and returning 
 from the Court named in the said subpoena, and for one day's 
 attendance thereat. 
 Sworn to before me this 3rd 
 day of January, 1909. 
 
 JOHN" DOE. 
 A. B. 
 
 Commissioner of Deeds, 
 
 Alhany, N.. Y. 
 Code of Civil Procedure, sec. 820. 
 
 Fifty cents witness fee for on© day's attendance and eighty 
 cents traveling fee, the witness residing more than three miles 
 from the place of attendance. 
 
 Code of Civil Procedure, sec. 3318. 
 
 502. 
 
 No. There is no writ obtainable for the purposes stated. 
 A writ of Prohibition (Code of Civil Procedure, sees. 2091- 
 
Bae Examinations and Coueses of Study. 35T 
 
 2102) will not issue, for its sole province is to prevent an 
 inferior tribunal from usurping a jurisdiction which it does 
 not possess. 
 
 People ex rel. Livingston v. Wyatt, 186 
 
 ISr. Y. 393. 
 iPeople ex rel. Jones v. Sherman, 66 App. 
 Div. 231, affd. 171 IST. Y. 684. 
 
 Petit larceny is a misdemeanor (Penal Law, Laws 1909, 
 chap. 88, sec. 1299) of which a justice of the peace has 
 jurisdiction. 
 
 Code of Criminal Procedure, sees. 56, 62, 
 147. 
 
 503. 
 
 "A, without cause or provocation, violently assaulted and 
 beat B to his damage." That presents a state of facts 
 wherein B has an action predicated thereon against A to re- 
 cover damages for a personal injury, in which action an order 
 of arrest will issue as provided in section 549 of the Code of 
 Civil Procedure. 
 
 Vide, the section generally for other causes of action in 
 which an order of arrest may be granted. 
 
 504. 
 
 The Court will overrule plaintiff's demurrer to defend- 
 ant's answer. 
 
 "A demurrer searches the record, and a demurrer to a 
 bad answer cannot prevail, if the complaint be not good." 
 
 Schiefer v. Preygang, 125 App. Div. 499. 
 Baxter v. McDonnell, 154 N, Y. 436. 
 
 505. 
 
 Yes. " It is a well settled rule in this state that the 
 party holding the affirmative upon an issue of fact has the 
 right, upon the trial, to open and close the proof, and to 
 reply in summing up the case to the jury. This is regarded 
 as a legal right, not resting in the discretion of the Court, 
 
358 Bab Examinations and Coueses of Study. 
 
 and a denial thereof may be excepted to and the ruling re- 
 viewed upon appeal." 
 
 Heilbrown v. Herzog, 165 N". Y, 100, 
 101. 
 
 L. 0. E". Bank v. Jordan, 122 IST. Y. 278. 
 
 Conselyea v. Swift, 10'3 IST. Y. 604. 
 
 Ten years. 
 
 506. 
 
 Code of Civil Procedure, sec. 1261. 
 
 507. 
 
 The Court denied the motion to acquit. 
 " On the trial of an indictment for forgery, it is not neces- 
 sary that the person whose name is alleged to have been 
 forged be produced as a witness and testify that he did not 
 sign the paper or authorize the signature. These facts may 
 be proved by other evidence." 
 
 People V. Browne, 118 App. Div. 793, 
 affd. 189 IST. Y. 528. 
 
 508. 
 
 The Court sustained the objection. 
 
 The declarations of B made after the transaction was com- 
 pleted, as to the intent with which he executed the bill of 
 sale, are incompetent and inadmissible as against A in an 
 action wherein the bill of sale is assailed as fraudulent. 
 Spaulding v. Keyes, 125 IST. Y. 113. 
 Lent V. Shear, 160 N. Y. 462. 
 "Wangner v. Grimm, 169 K Y. 421, 431, 
 432; 16 Cyc. 992. 
 
 509. 
 
 The Surrogate sustained the objection. 
 
 " In proceedings for the probate of a will which is eon- 
 tested on the ground that there was no due publication of 
 the will, a beneficiary under it is incompetent to testify to. 
 any conversation or transaction in his presence at the time 
 
Bae Examiijations and Courses of Study. 359 
 
 of its execution and publication. What occurred at that time 
 is a transaction between the testator and the witness within 
 the meaning of the Code of Civil Procedure (sec. 829), al- 
 though the witness took no actual part in the conversation, 
 and it was wholly between the testator and the attesting 
 witnesses." 
 
 Matter of Bernsee, 141 IST. Y. 389. 
 
 Boyd V. Boyd, 164 N. Y. 245. 
 
 Hatton V. Smith, 175 IST. Y. 375, 381, 
 582. 
 
 Burdick v. Burdiek, 180 JST. Y. 261. 
 
 510. 
 
 The Court overruled the objection and allowed the testi- 
 mony. 
 
 Communications made to an attorney in the presence of 
 third persons are not privileged nor covered by section 835 
 •of the Code of Civil Procedure. 
 
 People V. Buchanan, 145 IST. Y. 1, 26. 
 Doheny v. Lacy, 168 IST. Y. 224. 
 Matter of King v. Ashley, 96 App. Div. 
 145. 
 
 511. 
 
 The 'Court should sustain the objection. 
 
 The fact that C settled with A is not to be taken as an 
 admission of his liability to B. Evidence thereof is not 
 competent, for that purpose, in a litigation of the claim 
 of another party arising out of the same transaction. 
 
 Slingerland v. IsTorton, 5'8 Hun, 578. 
 
 512. 
 
 The Court overruled the objection and admitted the 
 testimony. 
 
 The testimony is admitted to show guilty knowledge of 
 the character of the act committed by the prisoner. 
 
 " In the trial of an indictment for passing counterfeit 
 money, evidence of the passage of like money within a rea- 
 
'360 Bae Examinations and Coueses of Study. 
 
 sonaUe time before or after the commission of the offense 
 for wMeh the prisoner is on trial is admitted for the pur- 
 pose 6i showing that when he passed the money in question, 
 it was not through ignorance of its character." 
 
 People V. Sharp, 107 JST. Y. 467. 
 
 People V. Shea, 147 JST. Y. 99. 
 
 People V. Eogers, 192 N. Y. 351. 
 
 513. 
 
 Judgment for B. D based his claim on curtesy. 
 
 "An estate by the curtesy does not attach to property con- 
 veyed to a wife, subject to the use and occupation of an- 
 other during life, where she was never in actual possession 
 of the property and she died before the determination of the 
 life estate." 
 
 Collins V. Russell, 184 N. Y. 74. 
 
 514. 
 
 A has neither rights nor remedies. 
 
 " Where the delivery of a deed is intended to give effect 
 thereto without the further act of the grantor, any oral con- 
 dition accompanying the delivery would be repugnant to 
 the terms of the deed, and parol evidence to prove that there 
 was such a condition attached to its delivery is inadmissible 
 in an action to cancel or set it aside." 
 
 Hamlin v. Hamlin, 192 N. Y. 164, 168, 
 169. 
 
 515. 
 
 Judgment for B. 
 
 "A grant of real property is absolutely void, if at the time 
 of the delivery thereof, such property is in the actual pos- 
 session of a person claiming under a title adverse to that of 
 the grantor." 
 
 Real Property Law, Laws 1909, chap. 52, 
 
 sec. 260. 
 Baechl v. Hevesy, 115 App. Div. 509. 
 Gerard on Titles to Real Eetate (5th ed.) 
 p. 545. 
 
Bae Examinations and Coubses of Study. 361 
 
 516. 
 
 B has a cause of action against A for damages predicated 
 upon his unlawful dischai'ge, for the injury he has sustained 
 in not being allowed to serve and earn the wages agreed 
 upon. 
 
 Howard v. Daly, 61 K Y. 369, 
 
 " When, on the expiration of a written contract of employ- 
 ment for one year, the servant remains in his master's em- 
 ploy without agreement limiting the subsequent period of 
 his employment, the law implies a renewal of the contract 
 upon the sajne terms for another year." 
 
 Mendelson v. Bronner, 124 App. Div. 
 396. 
 
 517. 
 
 Judgment for A. 
 
 "Where a contract is made for the sale and delivery of 
 specified articles of personal property, under such circum- 
 stances that the title does not vest in the vendee, if the prop- 
 erty is destroyed by an accident, without the fault of the 
 vendor, so that delivery becomes impossible, the latter is not 
 liable to the vendee in damages for the nondelivery." 
 Dexter v/lSTorton, 47" K.^. 6'2. 
 Buffalo & L. Land Co. v. Bellevue L. & 
 I. Co., 165 IT. Y. 254; 197 N". Y. 
 170. 
 
 518. 
 
 The firm of A. & D. has neither rights nor remedies. 
 C made no contract for the purchase of coal from the firm 
 of A. & D. and is under no obligation to take the coal from it. 
 Piper V. Seager, 111 App. Div. 113. 
 
 519. 
 
 The receiver can recover. 
 
 " One partner cannot apply the partnership funds to the 
 discharge of his own private debt without the consent of the 
 other partner • * * * without such consent the- title of 
 
362 Bae Examinations and Coueses of Study. 
 
 the partnership to the property is not divested in favor of 
 the private creditor, whether the latter knovrs that the prop- 
 erty belongs to the partnership or not; and * * * the 
 right of the partnership depends not upon whether the 
 creditor Imew it was partnership property but rather upon 
 the fact whether the other partners had assented to such 
 application." 
 
 Baron v. Lakow, 121 App. Div. 545. 
 
 •Rogers v. Batchelor, 12 Pet. (U. S.) 221. 
 
 520. 
 
 E'o. 
 
 'C was a bona fide purchaser of the note after maturity 
 and succeeded to the rights of B who was a holder in due 
 course, who could recover on the note against A, although the 
 same had been stolen from him. 
 
 Northampton Nat. Bank v. Kidder, 106 
 N. Y. 221. 
 
 521. 
 
 Yes. 
 
 " If a drawer of a check procures it to he certified the 
 relations, duties and obligations between him and the payee 
 or holder are the same as if such check had not been certi- 
 fied. It is only where the holder of the check procures its 
 certification after its delivery to him that the drawers and 
 indorsers are discharged and the bank itself substituted as 
 a principal debtor." 
 
 Eaton & Gilbert on 'Com. Paper (2d ed.), 
 
 p. 635. 
 Negotiable Instruments Law (Laws 1909, 
 chap. 43), sec. 324, 6 Cyc. 541. 
 
 522. 
 
 X is not liable on the contract to A. A contract under 
 seal can only be enforced against the party who upon the 
 face of the instrument is the covenantor, although it appear 
 by extrinsic proof that he acted for another. A did not 
 
Bab Examinations and Courses of Study. 363 
 
 sign it Hmself nor did it purport to have been executed for 
 Lim by his clerk. 
 
 Briggs V. Partridge, 64 N. Y. 360. 
 
 Kiersted v. 0. & A. E. E. Co., 69 N. Y. 
 343, 345. 
 
 Elliott y. Brady, 192 N. Y. 221. 
 
 523. 
 
 C has a cause of action against B. 
 
 "A principal is liable, as a general rule, for such wrong 
 of his agent as is committed in the course of his employment 
 and for the benefit of his principal; and this although no 
 express command or privity is proven." 
 
 Eishkill Sav. Inst. v. National Bank, 80 
 
 K Y. 162. 
 N. Y. C. & H. E. E. Co. V. United 
 States, U. S. Sup. Ct., Oct. Term, 
 1908. 
 
 524. 
 
 A, the surety, is not liable. 
 
 "A surety bound for the fidelity and honesty of his princi- 
 pal and so for an indefinite and contingent liability, and not 
 for a sum fixed and certain to become due may revoke and 
 end his future liability * * * where the guaranteed 
 ■contract has no definite time to run." 
 
 Emery v. Baltz, 94 IST. Y. 414. 
 
 Howe Machine Co. v. Farrington, 82 
 
 K Y. 125. 
 20 Cyc. 1479. 
 
 Eeilly v. Dodge, 131 K Y. 158. 
 Picker v. Eitzelle, 60 App. Div. 453. 
 
 525. 
 
 A is liable. 
 
 " The mere failure of the plaintiff to enforce the security 
 or secure the application of the property upon the debt does 
 not relieve the defendant * * *. In order to exonerate 
 
364, B^]j Examinations and Cotjeses oi' Study. 
 
 a surety by delay of the creditor to proceed against the prin- 
 cipal, the surety must show explicit notice or request to the 
 creditor to take legal proceedings to collect the debt or en- 
 force the liability of the principal." 
 
 Howe Machine Co. v. Farrington, 82 
 ]Sr. Y. lai, 130, 131. 
 
 JSTewcomb v. Hale, 90 IST. Y. 331. 
 
 526. 
 
 The policy is void and the insurance company is not liable. 
 It became void before the fire by reason of nonoccupaney and 
 in the absence of proof of waiver or consent on the part of 
 the insurer to a continuance of the risk, no recovery can be 
 lawfully had upon the policy. The policy is not revived by 
 a subsequent occupancy which continues until the fire. 
 
 •Couch V. Farmers' Insurance Co., 64 
 
 App. Div. 367. 
 Clements' Law of Fire Ins. (2nd ed), 
 
 vol. 2, p. 367. 
 Cooley's Briefs on Law of Insurance, 
 vol. 2, p. 1861. 
 
 527. 
 
 Yes. To X. 
 
 The policy having been procured by A in good faith, he 
 had the absolute right to make it payable to any one with- 
 out regard to insurable interest. 
 25 Cyc. 708. 
 
 Olmstead v. Keyes, 85 N. Y. 593. 
 Steinbaek v. Diepenbroch, 158 IST. Y. 24. 
 Eeed v. Provident S. L. A. Society, 190 
 K Y. 118. 
 
 X, therefore, had at once a beneficial interest in the policy 
 and could not be divested thereof even by A in the manner 
 set forth in the question. 
 
 Central Bank of Washington v. Hume, 
 128 U. S. 196, 206. 
 
Bae Examinations and Coueses of Study. 365 
 
 Cook on Life Insurance, p. 123. 
 Ferdon v. Canfield, 104 N. Y. 143. 
 25 'Cyc. 778. 
 
 Sterritt v. Manhattan Life, 38 App. Div. 
 599. 
 
 528. 
 
 The loss falls on the X Storage Company. The transaction 
 ■was a bailment for hire. It is an " essential element of the 
 contract that the bailee will use reasonable care to preserve 
 the goods intrusted to his care, and if he proposes to be ex- 
 empt from this part of the obligation, it must be done in 
 language which cannot be mistaken and which gives full no- 
 tice of the exception to the natural import of the trans- 
 action." 
 
 * * * " Hence, a provision that ' perishable goods are 
 received at the ovsmers risk,' does not relieve the bailee from 
 liability for negligence." 
 
 Herzig v. 1^. Y. Cold Storage Co., 115 
 App. Div. 40, affd. 190 K Y. 511. 
 
 529. 
 
 Under th© Factors Act (Personal Prop. Law, Laws 1909, 
 chap. 45, sec. 43) Y, acting without knowledge, has an in- 
 terest in the goods of X to the extent of the right and in- 
 terest therein which was possessed or might have been en- 
 forced by the commission merchant at the time of the deposit 
 thereof by him with Y. 
 
 Stevens v. Wilson, 6 Hill, 512. 
 
 Howland v. Woodruff, 60 IT. Y. 73. 
 
 530. 
 
 Yes; B can recover. 
 
 "A manufacturer who sells goods of his own manufacture 
 impliedly warrants they are free from any latent defect 
 gj-owing out of the processes of manufacture." 
 
 Carleton v. Lombard Ayres Co., 149 
 N. Y. 137. 
 
366 Bae Examinations and Coueses op Study. 
 
 This liability survived acceptance because tbe defect vras 
 latent and not discernible and the wheels vrere delivered 
 under circumstances which rendered an inspection thereof 
 impracticable. 
 
 Smith V. Ooe, 170 JST. Y. 162. 
 
 531. 
 
 Yes. 
 
 " Under a contract to sell and deliver goods, the vendee 
 by accepting the goods after the time to deliver has passed, 
 does not thereby waive his claim for damages caused by the 
 delay and when sued for the purchase price may counter- 
 claim such damage." 
 
 Beyer v. Huber Co., 115 App. Div. 342. 
 Law of Sales (Williston 1909), sec. 487. 
 132 App. Div. 250'. 
 
 532. 
 
 The Court should refuse to so charge. 
 The prisoner having presented testimony as to his previous 
 good character, is entitled to the benefit of the doubt as to 
 his guilt which may have been caused thereby. Evidence of 
 previous good character will sometimes of itself create a 
 doubt when without it none would exist. 
 
 Remsen v. People, 43 IST. Y. 8, 9. 
 
 People V. Elliott, 163 K. Y. 11. 
 
 People V. Bonier, 179 K Y. 315. 
 
 People V. Pekarz, 185 IST. Y. 470. 
 
 533. 
 
 The verdict is valid. 
 
 " If the indictment be for a misdemeanor, the trial may 
 be had in the absence of the defendant if he appear by coun- 
 sel ; but if the indictment be for a felony the defendant must 
 be personally present." 
 
 Code of Criminal Procedure, sec. 356. 
 
 534. 
 
 The Court admitted the evidence. 
 
 " The plea of not guilty is a denial of every material al- 
 legation in the indictment." 
 
 Code of Criminal Procedure, sec. 338. 
 
Bae Examinations and Coueses of Study. 367 
 
 "All matters of fact, tending to establish a defense (other 
 than a plea of former judgment of conviction or acquittal), 
 may be given in evidence under the plea of not guilty." 
 id., sec. 339. 
 
 535. 
 
 The Railway Company is liable. It was under no obli- 
 gation to supply assistance in alighting in the first instance, 
 yet having undertaken to do so it became liable for its neg- 
 ligence in the performance of its voluntary act. 
 
 Hanlon v. C. E. E. Co. of N. J., 187 
 N. Y. 73. 
 
 536. 
 
 A has not a good cause of action against B. 
 The action will not lie in the absence of malice or an in- 
 tent to injure A. 
 
 To maintain an action for slander of personal property 
 three things must be established: 
 
 First: That the words were false. 
 Second: That the plaintiff had been injured thereby. 
 Third : That they were uttered maliciously for the pur- 
 pose of injuring the plaintiff. 
 The third element is lacking in the question. 
 
 Like V. McKinstry, 41 Barb. 186, 193. 
 
 Dodge V. Colby, 37 Hun, 515. 
 
 Cornwall v. Parke, 52 Hun, 598, affd., 
 
 123 N. Y. 657. 
 Hastings v. Giles Lith. Co., 51 Hun, 364, 
 affd., 121 E". Y. 674. 
 
 537. 
 
 The railroad company is liable. 
 
 A was palpabably drunk, and boisterously disorderly, he 
 annoyed the other passengers and refused to be quieted by 
 the conductor. It then became the right and duty of the 
 
368 Bae Examinations and Coueses of Study. 
 
 railroad company to expel him, and if thereafter, and in 
 the presence of the conductor he wrongfully assaulted 
 another passenger, the railroad company is liable to that 
 passenger for the damages he may have sustained by reason 
 thereof. It is the duty of the railroad company to guard 
 its passengtjrs against the wanton assaults of other passengers, 
 where there is anything in the conduct and appearance of the 
 offender to warrant the conductor in anticipating danger 
 from him. 
 
 Putnam v. B'way and Seventh Ave. K. E.. 
 Co., 55 K Y. 108. 
 
 Tyson v. Bauland Co., 186 K Y. 402. 
 
 538. 
 
 The business creditors have no right of recourse against 
 the general assets of the estate. 
 
 An executor even though explicitly authorized to con- 
 tinue the business cannot bind the general assets of the estate 
 unless authorized to do so. Persons dealing with the execu- 
 tor were bound to know the extent of his authority and that 
 they could resort only to the property embarked in the busi- 
 ness at the time of decedent's death. 
 
 Manhattan Oil Co. v. Gill, 118 App. Div. 
 
 17, 19. 
 18 Cyc. 244. 
 
 539. 
 
 The Surrogate refused to probate the will. 
 
 The wiU was not executed and attested as required by 
 statute. 
 
 A did not at the time he asked the girls to sign as wit- 
 nesses, acknowledge the same and declare the instrument so 
 subscribed by him to be his last will and testament, nor did 
 
Bab Examinations and Coueses of Study. 369 
 
 the testator in the presence of the witnesses, suhscribe the 
 will and by his conduct make known to them its nature. 
 
 Decedent Estate Law (Laws 1909, chap. 
 
 18, sec. 21.) 
 Bagley v. Blackman, 2 Lansing, 41. 
 Lane v. Lane, 95 IST. Y. 494, 
 Eemsen v. Brincherhoff, 26 Wendell, 
 
 325. 
 Gilbert v. Knox, 52 N. Y. 125. 
 
 540. 
 
 On proof of the facts, the Surrogate will issue letters of 
 administration with the will annexed. 
 
 Code of Civil Procedure, sec. 2643. 
 
 541. 
 
 A cannot obtain a stay of the execution. 
 " While equity will sometimes interfere to set aside a 
 judgment obtained by fraud or unfair practices, it will not 
 do so where the only fraud alleged is that the judgment was 
 procured by perjured testimony. Judgments will be set 
 aside only for frauds extrinsic or collateral to matters in- 
 volved in the trial." 
 
 Gitler V. Russian Co., 124 App. Div. 2Y3. 
 Mayor v. Brady, 115 K Y. 599. 
 
 542. 
 
 can appear in the action and compel B to insert a clause 
 in the judgment of foreclosure and sale, directing that the 
 estate on which he, 0, has no mortgage be first sold. 
 
 " Where a claimant has a right to payment out of two 
 
 funds and another claimant can only look for satisfaction 
 
 out of one fund, the first claimant shall be satisfied out of 
 
 the fund in which he alone has a claim and that the second 
 
 24 
 
370 Bar Examinations and Ooueses of Study. 
 
 fund shall not be unnecessarily depleted for that purpose at 
 the expense of the other claimant." 
 
 Farmers' Loan & Trust Co. v. Kip, 192 
 K Y. 285. 
 
 " Where the mortgage in suit covers two tracts or parcels 
 of land, on one of which alone another mortgagee has se- 
 curity, the sale should be so ordered that recourse shall first 
 be had to that paxoel not subject to the other mortgage." 
 27 Cyc, p. 1698. 
 
 543. 
 
 Execution valid and the corporation liable. 
 
 The contract on its face purports to be the contract of the 
 corporation which is named therein as the party thereto and 
 the signature shows that the general agent signed it " for " 
 the corporation. 
 
 10 Cyc. 1043, 1044, 1049. 
 
 544. 
 
 Defense invalid. 
 
 "A party who has entered into a contract with another, 
 in which the latter assumes to be and contracts as a corpora- 
 tion, is estopped from denying the corporate existence." 
 
 U. S. V. Co. V. Schlegel, 143 Is^. y. 537. 
 Card V. Moore, 68 App. Div. 336. 
 
 545. 
 
 A is not liable on the contract ; it is invalid. 
 
 The question states that the husband and wife were living 
 together and, while so living, contracted to live separate and 
 apart thereafter and that they separated, predicated on the 
 husband's prior agreement to pay her a weekly allowance 
 sufficient for her support. The law will not enforce a con- 
 tract like the one in question if made between husband and 
 wife while still living together; such contracts are held void 
 as against public policy, where it is an essential part thereof 
 that the husband and wife should thereafter separate. 
 
 Winter v. Winter, 191 N". Y. 462, 470. 
 
Bae Examinations and Courses or Study. 371 
 
 546. 
 
 Yes. 
 
 Marriage, so far as its validity is concerned, is a civil con- 
 tract. A and B could, therefore, by a written contract of 
 marriage, duly signed, witnessed by at least two witnesses, 
 acknowledged before a judge of a court of record, and re- 
 corded within six months after its execution, become mar- 
 ried and be husband and wife without having the same 
 solemized by either clergyman or magistrate (Domestic Rela- 
 tions Law, Laws 1909, chap. 19, sec. 11, subdv. 4), provided 
 they first obtain the necessary marriage license. (Id., 
 sec. 25.) 
 
 547. 
 
 No. " The obligation to represent the client with undi- 
 vided fidelity and not to divulge his secrets or confidences 
 forbids also the subsequent acceptance of retainers or em- 
 ployment from others in matters adversely effecting any in- 
 terest of the client with respect to which confidence has been 
 reposed." 
 
 Canons of Ethics (adopted by IST. Y. 
 State Bar Association, Jan. 1909), 
 <•'• Canon 6. 
 
 548. 
 
 "A lawyer should not in any way communicate upon the 
 
 subject of controversy with a party represented by counsel; 
 
 much less should he undertake to negotiate or compromise 
 
 the matter with him, but should deal only with his counsel." 
 
 Canons of Ethics (adopted by IST. Y. State 
 
 Bar Association, Jan. 1909), Canon 
 
 9. 
 
 549. 
 
 Invalid. If the governor does not approve a bill, he shall 
 
 return it with his objections to the house in which it shall 
 
 have originated. * * * if any bill shall not be returned 
 
 by the governor within ten days (Sunday excepted) after 
 
372 Bae Examinations and Coueses of Study. 
 
 the same shall have been presented to him, the same shall be 
 law in like manner as if he had signed it. 
 
 'N. Y. Const., Art. IV, see. 9. 
 Adjournment considerations eliminated from question. 
 
 550. 
 
 Appointment invalid. 
 
 A veteran, when on the civil service list, is entitled to a 
 preference in appointment without regard to his standing on 
 any list from which such appointment may be made, but he 
 has no preference as to examinations to ascertain his merit 
 and fitness, and must get on such list as a result of examina- 
 tions, before he can be appointed in the civil service. 
 ISr. Y. Const., Art. V., sec. 9. 
 Matter of Keymer, 148 N. Y. 219. 
 Matter of Stutzbach v. Coler, 168 IST. Y. 
 421. 
 
ANSWERS TO THE CODE QUESTIONS. 
 
 551. 
 
 (The references are to the Code of Civil Procedure when not other- 
 wise designated.) 
 
 "Each of the following Courts of the State is a Court of Eecord: 
 
 1. The Court for the Trial of Impeachments. 
 
 2. The Court of Appeals. 
 
 3. The Appellate Division of the Supreme Court in each department. 
 
 4. The Supreme Court. 
 
 5. The Court of Claims. 
 
 6. A County Court in each county, except New York. 
 
 7. A Surrogate's Court in each county. 
 
 8. The Court of General Sessions of the Peace in and for the city 
 
 and county of New York. 
 
 9. The City Court of the city of New York. 
 
 10. The City Court of Yonkers. 
 
 11. Such other local Courts as are now constituted Courts of Record." 
 
 Judiciary Law (L. 1909, ch. 35), sec. 2. 
 
 552. 
 
 (a) The Supreme Court has general jurisdiction in law and equity, 
 subject to such appellate jurisdiction of the Court of Appeals as may 
 be prescribed by law, not inconsistent with the Constitution. 
 N. Y. Const. Art. VI, sec. 1. 
 
 (Jo) " § 217. Greneral jurisdiction of supreme court. 
 
 The general jurisdiction in law and equity, which the supreme 
 court of the State possesses, under the provisions of the constitution, 
 includes all the jurisdiction, which was possessed and exercised by the 
 supreme court of the colony of New York, at any time, and by the 
 court of chancery in England, on the 4th day of July, 1776; with the 
 exceptions, additions, and limitations, created and imposed by the 
 constitution and laws of the State. Subject to those exceptions and 
 limitations, the supreme court of the State has all the powers and 
 authority of each of those courts, and exercises the same in like 
 manner." 
 
 553. 
 
 § 340. Jurisdiction of county courts. 
 
 The jurisdiction of each county court extends to the following 
 actions and special proceedings, in addition to the jurisdiction, power, 
 and authority, conferred upon a county court, in a particular case, 
 by special statutory provision: 
 
 1. To an action for the partition of real property; for dower; for the 
 foreclosure, redemption, or satisfaction of a mortgage upon real prop- 
 erty; or to procure a judgment requiring a specific performance of a 
 contract, relating to real property; where the real property, to which 
 
 [373] 
 
874 Bae Examinations and Coueses of Study. 
 
 the action relates, is situated within the county; or to foreclose a lien 
 upon a chattel, in a case specified in section two hundred and six of 
 the lien law, where the lien does not exceed one thousand dollars in 
 amount, and the chattel is found within the county. 
 
 2. To an action in favor of the executor, adnainistrator or assignee 
 of a judgment creditor, or in a proper case, in favor of the judgment 
 creditor, to recover a judgment for money remaining due upon a judg- 
 ment rendered in the same court. 
 
 3. To an action for any other cause, where the defendant is or if 
 there are two or more defendants, where all of them are, at the time of 
 the commencement of the action, residents of the county, and wherein 
 the complaint demands judgment for a sum of money only, not exceed- 
 ing two thousand dollars; or to recover one or more chattels, the ag- 
 gregate value of which does not exceed one thousand dollars, with or 
 without damages for the taking or detention thereof. 
 
 4. To the custody of the person and the care of the property, con- 
 currently with the supreme court, of a resident of the county, who is 
 incompetent to manage his affairs, by reason of lunacy, idiocy, or 
 habitual drunkenness; or imbecility arising from old age or loss of 
 memory and understanding or other cause; and to every special pro- 
 ceeding, which the supreme court has jurisdiction to entertain, for the 
 appointment of a committee of the person or of the property of such 
 an incompetent person or for the sale or other disposition of the real 
 property situated within the county of a person, wherever resident, who 
 is so incompetent for either of the reasons aforesaid, or who is an in- 
 fant; or for the sale or other disposition of the real property, situated 
 within the county, of a domestic religious corporation. 
 
 554. 
 
 § 241. What judges may perform duties of justices at 
 chambers. 
 
 A county judge within his county possesses, and upon proper appli- 
 cation must exercise, the power conferred by law in general language 
 upon an officer authorized to perform the duties of a justice of the 
 supreme court at chambers or out of court. 
 
 555. 
 
 To the county court of the county where the judgment was rendered. 
 Code Oiv. Pro., sec. 3045. 
 
 556. 
 
 § 2472, General jurisdiction of surrogate's court. 
 
 Each surrogate must hold, within his county, a court, which has, in 
 addition to the powers conferred upon it, or upon the surrogate, by 
 special provision of law, jurisdiction, as follows: 
 
 1. To take the proof of wills; to admit wills to probate; to revoke 
 the probate thereof; and to take and revoke probate of heirship. 
 
Bar Examinations and Coueses of Study. 375 
 
 2. To graat and revoke letters testamentary and letters of adminis- 
 tration, and to appoint a successor in place of a person whose letters 
 have been revoked. 
 
 3. To direct and control the conduct, and settle the accounts, of ex- 
 ecutors, administrators, and testamentary trustees; to remove testa- 
 mentary trustees,. and to appoint a successor in place of a testamentary 
 trustee so removed. 
 
 4. To enforce the payment of debts and legacies; the distribution of 
 the estates of decedents; and the payment or delivery, by executors, 
 administrators, and testamentary trustees, of money or other property 
 in their possession, belonging to the estate. 
 
 5. To direct the disposition of real property, and interests in real 
 property, of decedents, for the payment of their debts and funeral ex- 
 penses, and the disposition of the proceeds thereof. 
 
 6. To administer justice, in all matters relating to the affairs of 
 decedents, according to the provisions of the statutes relating thereto. 
 
 7. To appoint and remove guardians for infants; to compel the pay- 
 ment and delivery by them of money or other property belonging to 
 their wards; and, in the cases specially prescribed by law, to direct and 
 control their conduct, and settle their accounts. 
 
 8. To settle the accounts of a father, mother or other relative having 
 the rights, powers and duties of a guardian in socage, and to compel 
 the payment and delivery of money or other property belonging to the 
 ward. 
 
 This jurisdiction must be exercised in the cases, and in the manner, 
 prescribed by statute. 
 
 § 2472a. The surrogate's court has also jurisdiction upon a judicial 
 accounting or a proceeding for the payment of a legacy to ascertain 
 the title to any legacy or distributive share, to set off a debt against 
 the same and for that purpose ascertain whether the debt exists, to 
 affect the accounting party with a constructive trust, and to exercise 
 all other power, legal or equitable, necessary to the complete disposi- 
 tion of the matter. He must order the trial of any controverted 
 question of fact of which either party has constitutional right of trial 
 by jury and seasonably demands the same. 
 
 557. 
 
 (a) Special Terms. 
 
 (b) Trial Terms. 
 
 (c) Appellate Division*. 
 
 558. 
 
 A special term of the Supreme Court is held by a single justice 
 without a jury; its genejal jurisdiction is to hear and decide motions 
 made in actions, to grant orders, to try equity actions and issues of 
 law and to exercise jurisdiction in special actions and proceedings as 
 and when conferred by statute. 
 
 559. 
 
 A trial term of the Supreme Court is held by one justice only, with 
 a jury, where issues of fact are tried; an issue of law is also triable 
 
376 Bae Examinations and Coueses of Study. 
 
 at trial term but they are generally brought on and tried at special 
 term as a contested motion. 
 
 Code, sec. 976. 
 
 560. 
 
 The Appellate Division of the Supreme Court is the Court to which 
 all appeals are taken in the first instance from the orders and judg- 
 ments of the trial and special terms of the Supreme Court, from 
 referees' judgments (Code Civ. Pro., sees. 1346, 1347) and from final 
 judgments rendered by County Courts (Id., sec. 1340). Also, from the 
 Appellate Term of the Supreme Court (Code, sec. 1344), the Court of 
 Claims (Code, sec. 275), and Surrogate's Court (Code, sec. 2570). 
 Vide Const., Art. VI, sec. 2, 
 
 561. 
 
 (a) Except where the judgment is of death, the jurisdiction of the 
 Court of Appeals is limited to the review of questions of law. 
 N. Y. Const., Art. VI, sec. 9. 
 
 (b) § 190. The jurisdiction of the court of appeals in 
 
 civil actions. 
 
 The court of appeals has exclusive jurisdiction to review upon 
 appeal every actual determination made prior to the last day of De- 
 cember, eighteen hundred and ninety-five, at a general term of the 
 supreme court, or by either of the superior city courts, as then consti- 
 tuted, in all cases in which, under the provisions of law existing on 
 said day, appeals might be taken to the court of appeals. From and 
 after the last day of December, eighteen hundred and ninety-five, the 
 jurisdiction of the court of appeals shall, in civil actions and proceed- 
 ings, be confined to the review upon appeal of the actual determina- 
 tions made by the appellate division of the supreme court in either of 
 the following cases, and no others: 
 
 1. Appeals may be taken as of right to said court, from judgments 
 or orders finally determining actions or special proceedings, and from 
 orders granting new trials on exceptions, where the appellants stipu- 
 late that upon aflBrmance, judgment absolute shall be rendered against 
 them. 
 
 2. Appeals may also be taken from determinations of the appellate 
 division of the supreme court iu any department where the appellate 
 division allows the same, and certifies that one or more questions of 
 law have arisen which, in its opinion, ought to be reviewed by the 
 court of appeals, in which case the appeal brings up for review the 
 question or questions so certified, and no other; and the court of 
 appeals shall certify to the apnellate division its determination upon 
 such questions. 
 
 § l'9'l. Limitations, exceptions and conditions. 
 The jurisdiction conferred by the last section is subject to the fol- 
 lowing limitations, exceptions and conditions: 
 
Bae Esaminations and Coueses of Study. 377 
 
 1. No appeal shall be taken to said court, in any civil action or pro- 
 ceeding commenced in any court other than the supreme court, court 
 of claims, county court, or a surrogate's court, unless the appellate 
 division of the supreme court allows the appeal by an order made at 
 the term which rendered the determination, or at the next term after 
 judgment is entered thereupon and shall certify that in its opinion a 
 question of law is involved which ought to be reviewed by the court 
 of appeals. 
 
 2. No appeal shall be taken to said court from a judgment of afl3rm- 
 ance hereafter rendered in an action to recover damages for a personal 
 injury, or to recover damages for injuries resulting in death, or in an 
 action to set aside a judgment, sale, transfer, conveyance, assignment 
 or written instrument, as in fraud of the rights of creditors, or in an 
 action to recover wages, salary or compensation for services, including 
 expenses incidental thereto, or damages for breach of any contract 
 therefor, or in an action upon an individual bond or individual under- 
 taking on appeal, when the decision of the appellate division of the 
 supreme court is unanimous, unless such appellate division shall certify 
 that in its opinion a question of law is involved which ought to be re- 
 viewed by the court of appeals, or unless in case of its refusal to so 
 certify, an appeal is allowed by a judge of the court of appeals. 
 
 3. The jurisdiction of the court is limited to a review of questions 
 of law. 
 
 4. No unanimous decision of the appellate division of the supreme 
 court that there is evidence supporting or tending to sustain a finding 
 of fact or a verdict not directed by the court, shall be reviewed by 
 the court of appeals. 
 
 562. 
 
 A statute of limitations is an act which " accords and limits a 
 reasonable time within which a suit may be brought upon causes of 
 action which it affects." 25 Cyc. 983. 
 
 563. 
 
 Forty years. (Code, § 362.) 
 
 564. 
 
 Twenty years. (Code, § 365.) 
 
 5e5. 
 
 Twenty years. (Code, § 366.) 
 
 § 381. Within twenty years. 
 
 Within twenty years: 
 
 An action upon a sealed instrument. 
 
 But where the action is brought for breach of a covenant of seizin, 
 or against incumbrances, the Cause of action is, for the purposes of 
 this section only, deemed to have accrued upon an eviction, and not 
 before. 
 
378 Bae Examination's and Coueses of Study. 
 
 567. 
 
 § 382. Within six years. 
 Within six years: 
 
 1. An action upon a contract obligation or liability express or im- 
 plied; except a judgment or sealed instrument. 
 
 2. An action to recover upon a liability created by statute; except 
 a penalty or forfeiture. 
 
 3. An action to recover damages for an injury to property, or a per- 
 sonal injury; except in a case where a different period is expressly 
 prescribed in this chapter. 
 
 4. An action to recover a chattel. 
 
 5. An action to procure a judgment, other than for a sum of money, 
 on the ground of fraud, in a case which, on the thirty-first day of 
 December, 1846, was cognizable by the court of chancery. The cause 
 of action, in such a case, is not deemed to have accrued, until the 
 discovery, by the plaintiff, or the person under whom he claims, of 
 the facts constituting the fraud. 
 
 6. An action to establish a will. Where the will has been lost, 
 concealed, or destroyed, the cause of action is not deemed to have 
 accrued, until the discovery, by the plaintiff, or the person under 
 whom he claims, of the facts upon which its validity depends. 
 
 7. An action upon a judgment or decree, rendered in a court not of 
 record, except where a transcript shall be filed, pursuant to section 
 thirty hundred and seventeen of this act, and, also, except a decree 
 heretofore rendered in a surrogate's court of the State. The cause 
 of action, in such a case, is deemed to have accrued when final judg- 
 ment was rendered. 
 
 568. 
 
 § 383. Within three years. 
 
 Within three years: 
 
 1. An action against a sheriff, coroner, constable, or other officer, 
 for the non-payment of money collected upon an execution. 
 
 2. An action against a constable, upon any other liability incurred 
 by him, by doing an act in his official capacity, or by the omission 
 of an official duty; except an escape. 
 
 3. An action upon a statute, for a penalty or forfeiture, where the 
 action is given to the person aggrieved, or to that person and the 
 people of the State, except where the statute imposing it prescribes 
 a different limitation. 
 
 4. An action against an executor, administrator, or receiver, or 
 against the trustee of an insolvent debtor, appointed, as prescribed 
 by law, in a special proceeding instituted in a court or before a judge, 
 brought to recover a chattel, or damages for taking, detaining, or 
 injuring personal property, by the defendant, or the person whom he 
 represents. 
 
 5. An action to recover damages for a personal injury, resulting 
 from negligence. 
 
Bah Examination's and Coueses of Study. 3Y9 
 
 569. 
 
 § 384. Within two years. 
 
 Within two years: 
 
 1. An action to recover damanages for libel, slander, assault, battery, 
 seduction, criminal conversation, false imprisonment, malicious prose- 
 cution or malpractice. 
 
 2. An action upon a statute, for a forfeiture or penalty to the people 
 of the State. 
 
 570. 
 
 § 385. Within one year. 
 
 Within one year: 
 
 1. An action against a sheriff or coroner, upon a liability incurred 
 by him, by doing an act in his official capacity, or by the omission 
 of an official duty; except the non-payment of money collected upon 
 an execution. 
 
 2. An action against any other officer, for the escape of a prisoner, 
 arrested or imprisoned by virtue of a civil mandate. 
 
 571. 
 
 § 386. When cause of action accrues on a current account. 
 In an action brought to recover a balance due upon a mutual, open, 
 and current account, where there have been reciprocal demands be- 
 tween the parties, the cause of action is deemed to have accrued from 
 the time of the last item, proved in the account on either side. 
 
 572. 
 
 § 38Y. Action for penalty, etc., by any person who will 
 
 sue. 
 
 An action upon a statute for a penalty or forfeiture, given wholly 
 or partly to any person who will prosecute for the same, must be com- 
 menced within one year after the commission of the offence; and if 
 the action is not commenced within the year by a private person, it 
 may be commenced within two years thereafter, in behalf of the 
 people of the State, by the attorney-general, or the district-attorney 
 of the county where the offence was committed. 
 
 573. 
 
 § 388. Actions not before provided for. 
 
 An action, the limitation of which is not specially prescribed in this 
 or the last title, must be commenced within ten years after the cause 
 of action accrues. 
 
 574. 
 
 § 395. Acknowledgment or new promise must be in writ- 
 ing. 
 
380 Bae Examinations and Coueses op Study. 
 
 An acknowledgment or promise contained in a writing, signed by 
 the party to be charged thereby, is the only competent evidence of a 
 new or continuing contract, whereby to take a case out of the opera- 
 tion of this title. But this section does not alter the effect of a 
 payment of principal or interest. 
 
 575. 
 
 § 396. Exceptions, as to persons under disabilities. 
 
 If a person, entitled to maintain an action specified in this title, 
 except for a penalty or forfeiture, or against a sheriff or other officer 
 for an escape, is, at the time when the cause of action accrues, either: 
 
 1. Within the age of twenty-one years; or, 
 
 2. Insane; or, 
 
 3. Imprisoned on a criminal charge, or in execution upon conyiction 
 of a criminal offence, for a term less than for life; 
 
 The time of such a disability is not a part of the time limited in 
 this title for commencing the action; except that the time so limited 
 cannot be extended more than five years by any such disability, ex- 
 cept infancy; or in any case, more than one year after the disability 
 ceases. 
 
 576. 
 
 § 398. When action deemed to be commenced. 
 
 An action is commenced against a defendant, within the meaning 
 of any provision of this act, which limits the time for commencing an 
 action, when the summons is served on him; or on a co-defendant who 
 is a joint contractor, or otherwise united in interest with him. 
 
 577. 
 
 § 399. Attempt to commence action in a court of record. 
 An attempt to commence an action, in a court of record, is equiva- 
 lent to the commencement thereof against each defendant, within the 
 meaning of each provision of this act, which limits the time for com- 
 mencing an action, when the summons is delivered, with the intent 
 that it shall be actually served, to the sheriff, or, where the sheriff 
 is a party, to a coroner of the county, in which that defendant, or 
 one of two or more co-defendants, who are joint contractors, or other- 
 wise united in interest with him, resides or last resided; or, if the 
 defendant is a corporation, to a like officer of the county, in which 
 it is established by law, or wherein its general business is or was 
 last transacted, or wherein it keeps, or last kept, an office for the 
 transaction of business. But in order to entitle a plaintiff to the 
 benefit of this section, the delivery of the summons to an officer must 
 be followed, within sixty days after the expiration of the time limited 
 for the actual commencement of the action, by personal service thereof 
 upon the defendant sought to be charged, or by the first publication 
 of the summons, as against that defendant, pursuant to an order for 
 service upon him in that manner. 
 
Bae Examinations and Coukses of Study. 381 
 
 578. 
 
 § 415. Mode of computing periods of limitation. 
 The periods of limitation, prescribed by this chapter, except as 
 otherwise specially prescribed therein, must be computed from the 
 time of the accruing of the right to relief by action, special pro- 
 ceeding, defence, or otherwise, as the case requires, to the time when 
 the claim to that relief is actually interposed by the party, as a plain- 
 tiff or a defendant, in the particular action or special proceeding. 
 
 S79. 
 
 "A civil action is commenced by the service of a summons." (Code, 
 i 416.) 
 
 580. 
 STATE OF NEW YORK — Supreme Coubt, Albany County. 
 
 JOHN DOE, Plaintif, 
 
 against 
 RICHARD ROE, Defendant. 
 
 To the Aiove Earned Defendant: . 
 
 You are hereby summoned to answer the complaint in this action, 
 and to serve a copy of your answer on the plaintiff's attorney within 
 twenty days after the service of this summons, exclusive of the day 
 of service; and in case of your failure to appear or answer, judgment 
 will be taken against you by default for the relief demanded in the 
 •complaint. 
 
 Trial to be held in the County of Albany. 
 
 Dated 1910. 
 
 X. Y. Z.. 
 
 Plaintiff's Attorney. 
 Office and Post-offlce Address, 
 
 86 State Street, Albany, N. Y. 
 Code Civ. Pro., S 418. 
 
 581. 
 
 § 419. Service of copy complaint or notice with sum- 
 mons j consequence of failure. 
 
 A copy of the complaint may be served with the summons. If a 
 copy of the complaint is not served with the summons, the plaintiff 
 cannot take judgment by default without application to the court, 
 unless either the defendant appears, or by a notice is served with 
 the summons, stating the sum of money for which judgment will be 
 taken, and the case is one embraced in the next section. 
 
382 Bae Examinations and Coueses of Study. 
 
 582. 
 
 § 420. Cases where such service must he made. 
 
 Judgment may be taken without application to the court, where 
 the complaint sets forth one or more causes of action, each consist- 
 ing of the breach of an express contract to pay, absolutely or upon 
 a contingency, a sum or sums of money, fixed by the terms of the 
 contract, or capable of being ascertained therefrom, by computation 
 only; or an express or implied contract to pay money received or 
 disbursed, or the value of property delivered, or of services rendered 
 by, to, or for the use of, the defendant or a third person; and there- 
 upon demands judgment for a sum of money only. This section in- 
 cludes a case, where the breach of the contract, set forth in the 
 complaint, is only partial; or where the complaint shows that the 
 amount of the plaintifE's demand has been reduced by payment, 
 counterclaim, or other credit. 
 
 583. 
 
 § 421. Appearance of defendant. 
 
 The defendant's appearance must be made by serving upon the 
 plaintifE's attorney, within twenty days after service of the summons, 
 exclusive of the day of service, a notice of appearance, or a copy of 
 a demurrer or of an answer. A notice or pleading, so served, must 
 be subscribed by the defendant's attorney, who must add to his signa- 
 ture his office address, with the particulars prescribed in section 417 
 of this act, concerning the office address of the plaintifE's attorney. 
 
 584. 
 
 § 424. Effect of Yoluntary appearance. 
 
 A voluntary general appearance of the defendant is equivalent to 
 personal service of the summons upon him. 
 
 585. 
 
 § 426. How personal service of summons made upon a 
 natural person. 
 
 Personal service of the summons upon a defendant, being a natural 
 person, must be made by delivering a copy thereof, within the State, 
 as follows: 
 
 1. If the defendant is an infant, under the age of fourteen years, 
 to the infant in person, and also to his father, mother or guardian; 
 or, if there is none within th^ State, to the person having the care 
 and control of him, or with whom he resides, or in whose service he 
 is employed. 
 
 2. If the defendant is a person judicially declared to be incompetent 
 to manage his afEairs, in consequence of lunacy, idiocy, or habitual 
 
Bae Examinations and Coueses of Study. 383 
 
 drunkenness, and for whom a committee has been appointed, to the 
 committee, and also to the defendant in person. 
 
 3. If the action is against a sheriff, for a cause specified in section 
 one hundred and fifty-eight of this act, by delivering it to the defend- 
 ant in person, or to his under-sheriff in person, or at the office of the 
 sheriff during the hours when it is required by law to be Icept open, 
 to a deputy-sheriff or a cleric in the employment of the sheriff, or 
 other person in charge of the office. 
 
 4. In any other case, to the defendant in person. 
 
 586. 
 
 § 431. How personal service of summons made upon a 
 domestic corporation. 
 
 Personal service of the summons upon a defendant, being a do- 
 mestic corporation, must be made by delivering a copy thereof, within 
 the State, as follows: 
 
 1. If the action is against the mayor, aldermen, and commonalty 
 of the city of New York, to the mayor, comptroller, or counsel to the 
 corporation. 
 
 2. If the action is against any other city, to the mayor, treasurer, 
 counsel, attorney, or clerk; or, if the city lacks either of those officers, 
 to the officer performing corresponding functions, under another name. 
 
 3. In any other case, to the president or other head of the corpora- 
 tion, the secretary or clerk to the corporation, the cashier, the treas- 
 urer, or a director or managing agent. 
 
 587. 
 
 § 432. Id. ; upon, a foreign corporation. 
 
 Personal service of the summons upon a defendant, being a foreign 
 corporation, must be made by delivering a copy thereof, within the 
 state, as follows: 
 
 1. To the president, vice-president, treasurer, assistant treasurer, 
 secretary or assistant secretary; or, if the corporation lacks either of 
 those officers, to the officer performing corresponding functions, under 
 another name. 
 
 2. To a person designated for the purpose as provided in section 
 sixteen of the general corporation law. 
 
 3. If such a designation is not in force, or if neither the person 
 designated, nor an officer specified in subdivision first of this section, 
 can be found with due diligence, and the corporation has property 
 within the state, or the cause of action arose therein; to the cashier, 
 a director, or a managing agent of the corporation, within the state. 
 
 4. If the person designated as provided in section sixteen of the 
 general corporation law dies or removes from the place where the cor- 
 poration has its principal place of business Within the state and the 
 corporation does not within thirty days after such death or removal 
 designate in like manner another person upon whom process against 
 
384 Bak Examinations and Coueses of Study. 
 
 it may be served within the state, process against the corporation in 
 an action upon any liability incurred within this state or if the cor- 
 poration has property within the state may after such death, removal 
 or revocation and before another designation is made be served upon 
 the secretary, of state. 
 
 588. 
 
 § 438. Cases in whicli service of summons by publication, 
 
 etc., may be ordered. 
 
 An order directing the service of a summons upon a defendant, 
 without the State, or by publication, may be made in either of the 
 following eases: 
 
 1. Where the defendant to be served is a foreign corporation; or, 
 is an unincorporated association consisting of seven or more persons, 
 having a president and treasurer, neither of whom is a resident of 
 this state; or, being a natural person, is not a resident of the state; 
 or, where, after diligent inquiry, the defendant remains unknown to 
 the plaintiff, or the plaintiff is unable to ascertain whether the de- 
 fendant is or is not a resident of the state. 
 
 2. Where the defendant, being a resident of the state, has departed 
 therefrom, with intent to defraud his creditors, or to avoid the service 
 of a summons; or keeps himself concealed therein, with like intent. 
 
 3. Where the defendant, being an adult, and a resident of the 
 state, has been continuously without the state of New York more 
 than six youths next before the granting of the order, and has not 
 made a designation of a person, upon whom to serve, a summons in 
 his behalf, as prescribed in section four hundred and thirty of this 
 act; or a designation so made no longer remains in force; or service 
 upon the person so designated cannot be made within the state, after 
 diligent effort. 
 
 4. Where the complaint demands judgment annulling a marriage, 
 or for a divorce, or a separation. 
 
 5. Where the complaint demands judgment, that the defendant be 
 excluded from a vested or contingent interest in or lien upon, specific 
 real or personal property within the state; or that such an interest 
 or lien in favor of either party be enforced, regulated, defined, or 
 limited; or otherwise affecting the title to such property. 
 
 6. Where the defendant is a resident of the state or a domestic 
 corporation; and an attempt was made to commence the action against 
 the defendant, as required in chapter fourth of this act, before the 
 expiration of the limitation applicable thereto as fixed in that chapter; 
 and the limitation would have expired, within sixty days next pre- 
 ceding the application, if time had not been extended by the attempt 
 to commence the action. 
 
 7. Where the action is against the stockholders of a corporation, 
 or joint-stock company, and is authorized by law of the state, and 
 the defendant is a stockholder thereof. When a copy of the summons 
 is required by subdivision first or subdivision second of section four 
 hundred and twenty-six of this act, or by section four hundred and 
 
Bab Examinations and Courses of Study. 385 
 
 twenty-nine of this act, to be deliyered to a person other than the 
 defendant, an order, directing the service of a copy of the summons 
 upon such person without the state, or by publication, may be made 
 as prescribed in this section, as if such person was the defendant in 
 the action, and upon a verified complaint and the same proof with 
 respect to such person, as is required in the next succeeding section 
 ■with respect to a defendant. And sections four hundred and forty to 
 four hundred and forty-four both inclusive, apply to the proceedings 
 in like manner as if such person was a defendant. 
 
 589. 
 
 § 446. Who may be joined as plaintiffs. 
 All persons having an interest in the subject of the action, and in 
 obtaining the judgment demanded, may be joined as plaintiffs, except 
 as otherwise expressly prescribed in this act. 
 
 590. 
 
 § 447. Idem; as defendants. 
 
 Any person may be made a defendant who has or claims an interest 
 in the controversy adverse to the plaintiff, or who is a necessary 
 party defendant, for the complete determination or settlement of a 
 question involved therein, except as otherwise expressly prescribed 
 in this act. In any action brought, affecting real estate upon which 
 the people of the state of New York have or claim to have a lien, 
 under the transfer tax act, the said people of the state of New York 
 may be made a party defendant, in the same manner as a private 
 person. In such a case the summons must be served on the attorney- 
 general, who may appear in behalf of the people. 
 
 591. 
 
 Guardians ad litem must be appointed. (Code, 
 S§ 468, 477.) 
 
 592. 
 
 § 481. Complaint; what to contain. 
 
 The complaint must contain: 
 
 1. The title of the action, specifying the name of the court in which 
 it is brought; if it is brought in the supreme court, the name of the 
 county, which the plaintiff designates as the place of trial; and the 
 names of all the parties to the action, plaintiff and defendant. 
 
 2. A plain and concise statement of the facts constituting each cause 
 of action without unnecessary repetition. 
 
 3. A demand of the judgment to which the plaintiff supposes him- 
 self entitled. 
 
386 Bae Examinations and Cotjeses of Study. 
 
 593. 
 
 § 484. "What causes of action may be joined in the same 
 
 complaint. 
 
 The plaintiff may unite in the same complaint, two or more causes 
 of action, whether they are such as were formerly denominated legal 
 or equitable, or both, where they are brought to recover as follows: 
 
 1. Upon contract, express or implied. 
 
 2. For personal injuries, except libel, slander, criminal conversation 
 or seduction. 
 
 3. For libel or slander. ' 
 
 4. For injuries to real property. 
 
 5. Real property, in ejectment, with or without damages for the 
 withholding thereof. 
 
 6. For injuries to personal property. 
 
 7. Chattels, with or without damages for the taking or detention 
 thereof. 
 
 8. Upon claims against a trustee, by virtue of a contract, or by 
 operation of law. 
 
 9. Upon claims arising out of the same transaction, or transactions 
 connected with the same subject of action, and not included within 
 one of the foregoing subdivisions of this section. 
 
 TOT FoF"pehalties incurred under the forest, fish and game law. 
 
 11. For penalties incurred under the agricultural law. 
 
 12. For penalties incurred under the public health law. 
 
 But it must appear, upon the face of the complaint, that all the 
 causes of action, so united, belon g to one of__thg.. foregging subdi- 
 visions of this section; that they are consistent with each other; and, 
 except as otherwise prescribed by law, that they affect all the parties 
 to the action; and it must appear upon the face of the complaint, that 
 they do not require different places of trial. 
 
 594. 
 
 § 488. When lie may demur. 
 
 The defendant may demur to the complaint, where one or more of 
 the following objections thereto appear upon the face thereof: 
 
 1. That the court has not jurisdiction of the person of the defendant. 
 
 2. That the court has not jurisdiction of the subject of the action. 
 
 3. That the plaintiff has not legal capacity to sue. 
 
 4. That there is another action pending between the same parties, 
 for the same cause. 
 
 5. That there is a misjoinder of parties plaintiff. 
 
 6. That there is a defect of parties, plaintiff or defendant. 
 
 7. That causes of action have been improperly united. 
 
 8. That the complaint does not state facts sufficient to constitute a 
 cause of action. 
 
Bab Examinations and Coueses of Study. 387 
 
 595. 
 
 § 490. Demurrer to complaint must specify grounds of 
 objection. 
 
 The demurrer must distinctly specify the objections to the com- 
 plaint; otherwise it may be disregarded. An objection, taken under 
 subdivision first, second, fourth, or eighth of section four hundred 
 and eighty-eight of this act, may be stated in the language of the 
 subdivision; an objection, taken under either of the other subdivisions, 
 must point out specifically the particular defect relied upon. 
 
 596. 
 
 § 498. When objection may be taken by answer. 
 Where any of the matters enumerated in section four hundred and 
 eighty-eight of this act as grounds of demurrer, do not appear on the 
 face of the complaint, the objection may be taken by answer, 
 
 597. 
 
 § 499. Objection; when deemed waived. 
 
 If such an objection is not taken, either by demurrer or answer, 
 the defendant is deemed to have waived it; except the objection to 
 the jurisdiction of the court, or the objection that the complaint does 
 not state facts sufficient to constitute a cause of action. 
 
 598. 
 
 § 5'00. Answer; what to contain. 
 The answer of the defendant must contain: 
 
 1. A general or specific denial of each material allegation of the 
 complaint controverted by the defendant, or of any knowledge or 
 information thereof sufficient to form a belief. 
 
 2. A statement of any new matter constituting a defense or counter- 
 claim, in ordinary and concise language without repetition. 
 
 599. 
 
 § 601. Counterclaim defined. 
 
 The counterclaim, specified in the last section, must tend, in some 
 way, to diminish or defeat the plaintiff's recovery, and must be one 
 of the following causes of action against the plaintiff, or, in a proper 
 case, against the person whom he represents, and in favor of the 
 defendant, or of one or more defendants, between whom and the 
 plaintiff a separate judgment may be had in the action: 
 
 1. A cause of action arising out of the contract or transaction, set 
 forth in the complaint as the foundation of the plaintiffs claim, or 
 connected with the subject of the action. 
 
 2. In an action on contract, any other cause of action on contract, 
 existing at the commencement of the action. 
 
388 Bak Examin-ations and Coueses of Study. 
 
 600. 
 
 § 514. Eeply; what to contain. 
 
 Where the answer contains a counterclaim, the plaintiff, if he 
 d«es not demur, may reply to the counterclaiip. The reply must con- 
 tain a general or specific denial of each material allegation of the 
 counterclaim controverted by the plaintiff, or of any knowledge or 
 information thereof sufficient to form a belief; and it may set forth 
 in ordinary and concise language, without repetition, new matter 
 not inconsistent with the complaint, constituting a defense to the 
 counterclaim. 
 
 601. 
 
 § 515. Judgment upon failure to reply. 
 
 If the plaintiff fails to reply or demur to the counterclaim, the 
 defendant may apply, upon notice, for judgment thereupon; and, if 
 the case requires it, a reference may be ordered, or a writ of inquiry 
 may be issued, as prescribed in chapter eleventh of this act, where 
 the plaintiff applies for judgment. 
 
 602. 
 
 § 522. Allegation not denied ; when to be deemed true. 
 
 Bach material allegation of the complaint, not controverted by the 
 answer, and each material allegation of new matter in the answer, 
 not controverted by the reply, where a reply is required, must, for 
 the purposes of the action, be taken as true. But an allegation of 
 new matter in the answer, to which a reply is not required, or of new 
 matter in a reply, is to be deemed controverted by the adverse party, 
 by traverse or avoidance, as the case requires. 
 
 603. 
 
 § 523. When pleading must he verified ; and when verifi- 
 cation may he omitted. 
 
 Where a pleading is verified, each subsequent pleading, except a 
 demurrer, or the general answer of an infant by his guardian ad litem, 
 must also be verified. But the verification may be omitted, in a case 
 where it is not otherwise specially prescribed by law, where the party 
 pleading would be privileged from testifying, as a witness, concerning 
 an allegation or denial contained in the pleading. A pleading cannot 
 be used, in a criminal prosecution against the party, as proof of a 
 fact admitted or alleged therein. 
 
 604. 
 
 § 525. Verification; how and hy whom made. 
 
 The verification must be made by the affidavit of the party, or, if 
 there are two or more parties united in interest, and pleading together. 
 
Bae Examinations and Coueses of Studt. 389 
 
 by at least one of them, who is acquainted with the facts, except as 
 follows: 
 
 1. Where the party is a domestic corporation, the verification must 
 be made by an officer thereof. 
 
 2. Where the people of the State arc, or a public officer, in their 
 behalf, is the party, the verification may be made by any person ac- 
 quainted with the facts. 
 
 3. Where the party is a foreign corporation; or where the party is 
 not within the county where the attorney resides, or if the latter is not 
 a resident of the State, the county where he has his office, and capable 
 of making the affidavit; or if there are two or more parties united in 
 interest, and pleading together, where neither of them, acquainted with 
 the facts is within that county, and capable of making the affidavit; or 
 where the action or defence is founded upon a written instrument for 
 the payment of money only, which is in the possession of the agent or 
 the attorney; or where all the material allegations of the pleading are 
 within the personal knowledge of the agent or the attorney; in either 
 case the verification may be made by the agent of or the attorney for 
 the party. 
 
 605. 
 
 § 526. Fonn of affidavit of verification. 
 
 The affidavit of verification must be to the effect, that the pleading 
 is true to the knowledge of the deponent, except as to the matters 
 therein stated to be alleged on information and belief, and that as 
 to those matters he believes it to be true. Where it is made by a 
 person, other than the party, he must set forth, in the affidavit, the 
 grounds of his belief, as to all matters not stated upon his knowledge, 
 and the reason why it is not made by the party. 
 
 606. 
 
 § 531. Account, how pleaded. Bill of particulars. 
 It is not necessary for a party to set forth, in a pleading, the items 
 of an account therein alleged; but in that case, he must deliver to the 
 adverse party, within ten days after a written demand thereof, a copy 
 of the account, which, if the pleading is verified, must be verified by 
 his affidavit, to the effect, that he believes it to be true; or, if the facts 
 are within the personal knowledge of the agent or attorney for the 
 party, or the party is not within the county where the attorney resides, 
 or capable of making the affidavit, by the affidavit of the agent or 
 attorney. If he fails so to do, he is precluded from giving evidence of 
 the account. The court, or a judge authorized to make an order in 
 the action, may direct the party to deliver a further account, where 
 the one delivered is defective. Upon application in any case, the 
 court, or a judge authorized to make an order in the action, may, upon 
 notice, direct a bill of the particulars of the claim of either party to 
 be delivered to the adverse party, and in case of default the court 
 
890 Bae Examinations and Coueses of Study. 
 
 shall preclude him from giving evidence of the part or parts of his 
 affirmative allegation of which particulars have not been delivered. 
 
 607. 
 
 § 537. Frivolous pleadings ; how disposed of. 
 If a demurrer, answer or reply is frivolous, the party prejudiced 
 thereby, upon a previous notice to the adverse party, of not less than 
 five days, may apply to the court or to a judge of the court for judg- 
 ment thereupon, and judgment may be given accordingly. If the 
 application is denied, an appeal cannot be taken from the determina- 
 tion, and the denial of the application does not prejudice any of the 
 subsequent proceedings of either party. Costs, as upon a motion, may 
 be awarded upon an application pursuant to this section. 
 
 608. 
 
 § 538. Shain defences to be stricken out. 
 A sham answer or a sham defence may be stricken out by the court, 
 apon motion, and upon such terms as the court deems just. 
 
 609. 
 
 § 542. Amendments of course. 
 
 Within twenty days after a pleading, or the answer, demurrer or 
 reply thereto, is served, or at any time before the period for answer- 
 ing it expires, the pleading may be once amended by the party, of 
 course, without costs and without prejudice to the proceedings already 
 had. But if it is made to appear to the court that the pleading was 
 amended for the purpose of delay, and that the adverse party will 
 thereby lose the benefit of a term, for which the cause is or may be 
 noticed, the amended pleading may be stricken out, or the pleading 
 may be restored to its original form, and such terms imposed as the 
 court deems just. 
 
 610. 
 
 § 544. Supplemental pleadings. 
 
 Upon the application of either party, the court may, and, in a 
 proper case, must, upon such terms as are just, permit him to make 
 a supplemental complaint, answer or reply, alleging material facts 
 which occurred after his former pleading, or of which he was ignorant 
 when it was made; including the judgment or decree of a competent 
 court, rendered after the commencement of the action, determining the 
 matters in controversy, or a part thereof. The party may apply for 
 leave to make a supplemental pleading, either in addition to, or in 
 place of, the former pleading. In the former event, if the application 
 is granted, a provisional remedy, or other proceeding already taken in 
 the action, is not affected by the supplemental pleading; but the right 
 
Bae Examinations and Coueses of Study. 391 
 
 of the adverse party to have it vacated or set aside, depends upon the 
 cases presented by the original and supplemental pleadings. 
 
 611. 
 
 § 545. Motion to strike out irrelevant, etc., matter. 
 
 Irrelevant, redundant, or scandalous matter, contained in a pleading, 
 may be stricken out, upon the motion of a person aggrieved thereby. 
 Where scandalous matter is thus stricken out, the attorney whose 
 name is subscribed to the pleading may be directed to pay the costs 
 of the motion, and his failure to pay them may be punished as a con- 
 tempt of the court. 
 
 612. 
 
 § 1279. Controversy, hov? submitted without process. 
 
 The parties to a question in difference, which might be the subject 
 of an action, being of full age, may agree upon a case, containing a 
 statement of the facts, upon which the controversy depends; and may 
 present a written submission thereof to a court of record, which would 
 have jurisdiction of an action, brought for the same cause. The case 
 must be accompanied with the affidavit of one of the parties, to the 
 effect, that the controversy is real; and that the submission is made 
 in good faith, for the purpose of determining the rights of the parties. 
 The submission must be acknowledged or proved, and certified, in 
 like manner as a deed, to be recorded in the county where it is filed. 
 
 613. 
 
 § 549. A defendant may be arrested in an action, when 
 the right to arrest depends upon the nature of the action. 
 
 A defendant may be arrested in an action, as prescribed in this 
 title, where the action is brought for either of the following causes: 
 
 1. To recover a fine or penalty. 
 
 2. To recover damages for a personal injury; an injury to property, 
 including the wrongful taking, detention or conversion of personal 
 
 . property; breach of a promise to marry; misconduct or neglect in office, 
 or in a professional employment; fraud; or deceit, or to recover a 
 chattel where it is alleged in the complaint that the chattel or a part 
 thereof has been concealed, removed or disposed of so that it cannot 
 be found or taken by the sheriff and with intent that it should not 
 be so found or taken, or to deprive the plaintiff of the benefit thereof; 
 or to recover for money received, or to recover property or damages 
 for the conversion or misapplication of property where it is alleged in 
 the complaint that the money was received or the property was em- 
 bezzled or fraudulently misapplied by a public officer or by an at- 
 torney, solicitor or counselor, or by an officer or agent of a corporation 
 or banking association in the course of his employment, or by a factor, 
 agent, broker, or other person in a fiduciary capacity. Where such 
 allegation is made, the plaintiff cannot recover unless he proves the 
 
392 Bae Examinations and Coubses op Study. 
 
 same on the trial of the action; and a judgment for the defendant is 
 not a bar to the new action to recover the money or chattel. 
 
 3. To recover money, funds, credits, or property, held or ovcned by 
 the State, or held, or owned, officially or otherwise, for or in behalf 
 of a public or governmental interest, by a municipal or other public 
 corporation, board, offieer, custodian agency, or agent, of the State or 
 of a city, county, town, village, or other division, subdivision, depart- 
 ment, or portion of the State, which the defendant has, without right, 
 obtained, received, converted, or disposed of, or to recover damages 
 for so obtaining, receiving, paying, converting, or disposing of the 
 same. 
 
 4. In an action upon contract, express or implied, other than a prom- 
 ise to marry, where it is alleged in the complaint that the defendant 
 was guilty of a fraud in contracting or incurring the liability, or that 
 he has since the making of the contract, or in contemplation of making 
 of the same, removed or disposed of his property with intent to defraud 
 his creditors, or is about to remove or dispose of the same with like in- 
 tent; but where such allegation is made, the plaintifC cannot recover un- 
 less he proves the fraud on the trial of the action; and a judgment for 
 the defendant is not a bar to a new action to recover upon the con- 
 tract only. 
 
 § 550. When the right to arrest depends partly upon ex- 
 trinsic facts. 
 
 A defendant may also be arrested in an action wherein the judg- 
 ment demanded requires the performance of an act, the neglect or re- 
 fusal to perform which would be punishable by the court as a con- 
 tempt, where the defendant is not a resident of the State, or, being a 
 resident, is about to depart therefrom, by reason of which non- 
 residence or departure there is danger that a judgment or an order 
 requiring the performance of the act will be rendered ineffectual. 
 
 614. 
 
 § BS3. A woman cannot be arrested, as prescribed in this title, 
 except in a case where the order can be granted only by the court; 
 or where it appears, that the action is to recover damages for a wilful 
 injury to person, character, or property. 
 
 615. 
 
 § 603. Injunction, when the right thereto depends upon 
 the nature of the action. 
 
 Where it appears, from the complaint, that the plaintiff demands 
 and is entitled to a judgment against the defendant, restraining the 
 commission or continuance of an act, the commission or continuance 
 of which, during the pendency of the action, would produce injury to 
 the plaintiff, an injunction order may be granted to restrain it. The 
 case, provided for in this section, is described in this act, as a case, 
 where the right to an injunction depends upon the nature of the action. 
 
Bae Examinations and Coueses of Study. 393 
 
 § 604. Id. ; when tlie right thereto depends upon extrinsic 
 facts. 
 
 In either of the following cases, an injunction order may also be 
 granted in an action: 
 
 1. Where it appears, by affidavit, that the defendant, during the 
 pendency of the action, is doing, or procuring, or suffering to be done, 
 or threatens, or is about to do, or to procure, or suffer to be done, an 
 act, in violation of the plaintiff's rights, respecting the subject of the 
 action, and tending to render the judgment ineffectual, an injunction 
 order may be granted to restrain him therefrom. 
 
 2. Where it appears, by affidavit, that the defendant, during the 
 pendency of the action, threatens, or is about to remove, or to dispose 
 of his property, with intent to defraud the plaintiff, an injunction order 
 may be granted, to restrain the removal or disposition. 
 
 616. 
 
 § 005. Eestrictions upon injunction to restrain State 
 officers. 
 
 Where a duty is imposed by statute upon a State officer, or board 
 of State officers, an injunction order to restrain him or them, or a 
 person employed by him or them, from the performance of that duty, 
 or to prevent the execution of the statute, shall not be granted, except 
 by the supreme court, at a term thereof, sitting in the department in 
 which the officer or board is located, or the duty is required to be 
 performed; and upon notice of the application therefor to the officer, 
 board, or other person to be restrained. 
 
 617. 
 
 § 6'3'5. Warrant of attachment; in what actions. 
 
 A warrant of attachment against the property of one or more de- 
 fendants in an action, may be granted upon the application of the 
 plaintiff, as specified in the next section, where the action is to recover 
 a sum of money only, as damages for one or more of the following 
 causes: 
 
 1. Breach of contract, express or implied, other than a contract to 
 marry. 
 
 2. Wrongful conversion of personal property. 
 
 3. An injury to person or property, in consequence of negligence, 
 fraud or other wrongful act. 
 
 618. 
 
 § 6i36, What must be shown to procure the warrant. 
 To entitle the plaintiff to such a warrant, he must show, by affidavit, 
 to the satisfaction of the judge granting the same, as follows: 
 
394r Bae ExAMIIiTATIONS AND CoTJESES OF StuDY. 
 
 1. That one of the causes of action specified in the last section 
 exists against the defendant. If the action is to recover damages for 
 breach of contract, the affidavit must show that the plaintifE is en- 
 titled to recover a sum stated therein, over and above all counter- 
 claims known to him. 
 
 2. That the defendant is either a foreign corporation or not a 
 resident of the state; or, if he is a natural person and a resident of 
 the state, that he has departed therefrom, with intent to defraud his 
 creditors, or to avoid the service of a summons, or keeps himself con- 
 cealed therein with the like intent; or, if the defendant is a natural 
 person or a domestic corporation, that he or it has removed, or is 
 about to remove, property from the state, with intent to defraud his 
 or its creditors; or has assigned, disposed of, or secreted, or is about 
 to assign, dispose of or secrete property with the like intent; or where, 
 for the purpose of procuring credit, or the extension of credit, the 
 defendant has made a false statement in writing, under his own hand 
 or signature, or under the hand or signature of a duly authorized 
 agent, made with his knowledge and acquiescence as to his financial 
 responsibility or standing; or, where the defendant, being an adult and 
 a resident of the state, has been continuously without the state of 
 New York for more than six months next before the granting of the 
 order of publication of the summons against him, and has not made 
 a designation of a person upon whom to serve a summons in his 
 behalf, as prescribed in section four hundred and thirty of this act; 
 or a designation so made no longer remains in force, or service upon 
 the person so designated cannot be made within the state, after diligent 
 efifort. 
 
 619. 
 
 § 637. Warrant in action against public officer, etc., for 
 
 peculation. 
 
 A warrant of attachment, against the property of one or more de- 
 fendants in an action, may also be granted, upon the application of 
 the plaintiff, where the complaint demands judgment for a sum of 
 money only; and it appears, by affidavit, that the action is brought to 
 recover money, funds, credits, or other property, held or owned by the 
 State, or held or owned, officially or otherwise, for or in behalf of a 
 public governmental interest, by a municipal or other public corpora- 
 tion, board, officer, custodian, agency, or agent, of the State, or of a 
 city, county, town, village, or other division, subdivision, department, 
 or portion of the State, which the defendant has, without right, ob- 
 tained, received, converted, or disposed of; or in the obtaining, recep- 
 tion, payment, conversion, or disposition of which, without right, 
 he has aided or abetted; or to recover damages for so obtaining, re- 
 ceiving, paying, converting, or disposing of the same; or the aiding 
 or abetting thereof; or in an action in favor of a private person or 
 corporation, brought to recover damages for an injury to personal 
 property where the liability arose, in whole or in part, in consequence 
 
Bae Examinations and Coueses op Study. 395 
 
 of the false statements of the defendant as to his responsibility or 
 ci'cdfE, in writing, under the hand or signature of the defendant or his 
 authorized agent, made with his knowledge and acquiescence. In 
 order to entitle the plaintiff to a warrant of attachment, in the case 
 specified in this section, he must show, by affidavit, to the satisfaction 
 of the judge granting it, that a suflJcient cause of action exists against 
 the defendant for a sum stated in the afladavit. 
 
 620. 
 
 § 713. Eeceiver; when appointed. 
 
 In addition to the cases, where the appointment of a receiver is 
 specially provided for by law, a receiver of property, which is the 
 subject of an action, in the supreme court or a county court, may be 
 appointed by the court, in either of the following cases: 
 
 1. Before final judgment, on the application of a party who estab- 
 lishes an apparent right to, or interest in, the property, where it is 
 in the possession of an adverse party, and there is danger that it 
 will be removed beyond the jurisdiction of the court, or lost, materially 
 injured, or destroyed. 
 
 2. By or after the final judgment, to carry the judgment into effect, 
 or to dispose of the property, according to its directions. 
 
 3. After final judgment, to preserve the property, during the pen- 
 dency of an appeal. 
 
 The word, " property," as used in this section, includes the rents, 
 profits, or other income, and the Increase, of real or personal property. 
 
 621. 
 
 § 731. Tender after suit. 
 
 Where the complaint demands judgment for a sum of money only; 
 and the action is brought to recover a sum certain, or which may be 
 reduced to certainty by calculation; or to recover damages for a 
 casual or involuntary personal injury, or a like injury to property; the 
 defendant, or his attorney, may, at any time before the trial, tender 
 to the plaintiff, or his attorney, such a sum of money, as ha conceives 
 to be suflJcient to make amends for the injury, or to pay the plaintiff's 
 demand; together with the costs of the action, to that time. 
 
 622. 
 
 § 755. Action; when not to abate. 
 
 An action does not abate by any event, if the cause of action sur- 
 vives or continues. A special proceeding does not abate by any event, 
 if the right to the relief sought in such special proceeding survives 
 or continues, but this provision as to special proceeding applies only 
 to cases where a party dies after this act takes effect. 
 
396 Bae EXAMIITATIONS AND CoUKSES OF StUDT. 
 
 623. 
 
 § 767. Definition of an order. 
 
 A direction of a court or judge, made, as prescribed in this act, in 
 an action or special proceeding, must be in writing, unless otherwise 
 specified in the particular case. Such a direction, unless it is con- 
 tained in a judgment, is an order. 
 
 624. 
 
 § 768. Id.; of a motion. 
 
 An application for an order is a motion. Such application or motion 
 must be made to a court, or to a judge or justice thereof. When the 
 defendants have made default in appearing in an action or proceeding, 
 any application or motion therein may be made to the court or to a 
 judge or justice thereof out of court. Where any of the defendants 
 in an action or proceedings have appeared, all motions or applications 
 thereafter made in such action or proceedings, must be made to the 
 court, unless such defendants consent to the making of such motion 
 or application to a judge or justice out of court. 
 
 625. 
 
 § 780. itTotice of motion, to be eight days. 
 
 Where special provision is not otherwise made by law, or by the 
 general rules of practice, if notice of a motion, or of any other pro- 
 ceeding in an action, before a court or a judge, is necessary, it must, 
 if personally served, be served at least eight days before the time 
 appointed for the hearing; unless the court or a judge thereof, or a 
 county judge of the county where the action is triable or in which the 
 attorney for the applicant resides, upon an affidavit showing grounds 
 therefor, makes an order to show cause why the application should not 
 be granted; and, in the order, directs that service thereof, less than 
 eight days before it is returnable, be suflBcient. 
 
 626. 
 
 Five days. 
 
 Rule 37. General Rules of Practice. 
 
 627. 
 
 § 820. Interpleader by order in certain cases. 
 
 A defendant against whom an action to recover upon a contract, or 
 an action of ejectment, or an action to recover a chattel, is pending, 
 may, at any time before answer, upon proof, by aflBdavit, that a per- 
 son, not a party to the action, makes a demand against him for the 
 same debt or property, without collusion with him, apply to the court, 
 upon notice to that person and the adverse party, for an order to sub- 
 stitute that person in his place, and to discharge him from liability to 
 either, on his paying into court the amount of the debt, or delivering 
 
Bae Examination's and Coueses of Study. 397 
 
 the possession of the property, or its value, to such person as the court 
 directs; or upon it appearing that the defendant disputes, in whole or 
 in part, the liability as asserted against him by different claimants, or 
 that he has some interest in the subject-matter of the controversy 
 which he desires to assert, his application may be for an order joining 
 the other claimant or claimants as co-defendants with him in the 
 action. The court may, in its discretion, make such order, upon such 
 terms as to costs and payments into court of the amount of the debt, 
 or part thereof, or delivery of the possession of the property, or its 
 value or part thereof, as may be just, and thereupon the entire con- 
 troversy may be determined in the action. 
 
 § 820-a. Suit by debtor, demanding judgment of inter- 
 pleader. 
 
 When any sum of money shall be due and payable under or on 
 -account of a contract, and the whole, or any part thereof, exceeding 
 fifty dollars in amount, shall be claimed or demanded by adverse 
 claimants thereto, the debtor may bring suit in any court having 
 jurisdiction thereof, and of the parties, demanding judgment of inter- 
 pleader, and that the debtor be permitted to pay the amount of the 
 debt into court, and that such debtor upon such payment into court be 
 discharged from any further liability to any of the parties to the 
 action. When service of the summons and complaint shall have been 
 made upon all such claimants, the plaintiff may make application, by 
 petition or upon affidavits for an order permitting and directing the 
 plaintiff to pay the amount of the debt into court, and that the 
 plaintiff, upon the payment into court of the amount of the debt as 
 required by the order, be discharged from any further liability to auy 
 of the defendants in such action, and the court, upon satisfactory 
 proof by affidavit or otherwise, as the court may require, of the facts 
 alleged in the complaint, and that the whole or part of the debt is 
 claimed adversely by the defendants without any collusion on the part 
 of the plaintiff, and that the amount thereof is not in dispute may 
 make such an order, upon such terms as to costs and disbursements 
 payable out of the money so adversely claimed as to the court may 
 seem just, and upon the payment into court of the amount of such 
 debt, and complying with the terms of such order, the plaintiff shall 
 stand discharged from any further liability to any of the defendants 
 in said action upon account of such debt and contract. Notice of such 
 application, together with copies of the papers upon which the same 
 is made, shall be personally served on each of the defendants, at least 
 five, and not more than fifteen days before the return day thereof. 
 
 628. 
 
 § 933. Issues defined; different kinds of issues. 
 The issues, treated of in this chapter, are those only which are 
 ^presented by the pleadings. An issue arises where a fact, or a con- 
 
398 Bae Examinations and Coukses of Study. 
 
 elusion of law, is maintained by one party, and controverted by the 
 other. Issues are of two kinds: 
 
 1. Of law; and 
 
 2. Of fact. 
 
 629. 
 
 § 9'64, When issues of law arise; when issues of fact 
 
 arise. 
 
 An issue of law arises only upon a demurer. An issue of fact 
 arises, in either of the following cases: 
 
 1. Upon a denial, contained in the answer, of a material allegation 
 of the complaint; or upon an allegation, contained in the answer, that 
 the defendant has not sufiBcient knowledge or information to form a 
 belief, with respect to a material allegation of the complaint. 
 
 2. Upon a similar denial or allegation, contained in the reply, with 
 respect to a material allegation of the answer. 
 
 3. Upon a material allegation of new matter, contained in the 
 answer, not requiring a reply; unless an issue of law is joined there- 
 upon. 
 
 4. Upon a material allegation of new matter, contained in the 
 reply; unless an issue of law is joined thereupon. 
 
 630. 
 
 § 987. When court may change the place of trial. 
 The court may, by order, change the place of trial, in either of the 
 following eases: 
 
 1. Where the county, designated for that purpose in the complaint, 
 is not the proper county. 
 
 2. Where there is reason to believe, that an impartial trial cannot 
 be had in the proper county. 
 
 3. Where the convenience of witnesses, and the ends of justice, will 
 be promoted by the change. 
 
 631. 
 
 § 977. Notice of trial and note of issue; calendar to be 
 
 prepared. 
 
 At any time after the joinder of issue, and at least fourteen days 
 before the commencement of the term, either party may serve a notice 
 of trial. The party serving the notice must file with the clerk a note 
 of issue, stating the title of the action, the names of the attorneys, 
 the time when the last pleading was served, the nature of the issue, 
 whether of fact or of law; and, if an issue of fact, whether it is 
 triable by jury, or by the court, without a jury, and the particular 
 nature of the same and the object of the action. The note of issue 
 must be filed at least twelve days before the commencement of the 
 term. The clerk must thereupon enter the cause upon the calendar 
 
Bab Examinations and Coukses of Study, 399 
 
 according to the date of issue. The clerk must prepare the calendar 
 and have the necessary copies ready for distribution at least five days 
 before the commencement of the term. In the counties of New York, 
 Kings, Queens, Richmond, Albany, Erie, Monroe, Onondaga, Schenec- 
 tady and Westchester, where a party has served a notice of trial, and 
 filed a note of issue, for a term at which the case is not tried, it is not 
 necessary for him to serve a new notice of trial, or file a new note of 
 issue, for a succeeding term; and the action must remain on the 
 calendar until it is disposed of. 
 
 632. 
 
 § 1176. Peremptory challenges in a civil action. 
 
 Upon the trial of an issue of fact, joined in a civil action in a court 
 of record, each party may peremptorily challenge not more than six 
 and in a court not of record each party may peremptorily challenge not 
 more than three of the persons drawn as jurors for the trial. 
 
 633. 
 
 § 10O8. If trial by jury waived, action must be tried by 
 the court. 
 
 In an action triable by a jury, if the parties waive the trial, by a 
 jury, of the issue of fact, the action must be tried by the court, 
 without a jury; unless a reference is directed, in a case prescribed by 
 law. (1) But such an action, other than to recover damages for breach 
 of a contract, cannot be tried by the court, without a jury, unless the 
 judge, presiding at the term where it is brought on for trial, assents 
 to such a trial. (2) His refusal so to assent annuls a waiver, made as 
 prescribed in subdivision second, third, or fourth of the next section. 
 
 634. 
 
 § 999. Motion for new trial upon judge's minutes ; appeal 
 
 from order thereupon. 
 
 The judge, presiding at a trial by a jury, may, in his discretion, en- 
 tertain a motion, made upon his minutes, at the same term, to set 
 aside the verdict or a direction dismissing the complaint and grant a 
 new trial upon exceptions; or because the verdict is for excessive or 
 insufficient damages, or otherwise contrary to the evidence, or con- 
 trary to law. If an appeal is taken from the order, made upon the 
 motion, it must be heard upon a case prepared and settled in the 
 usual manner. 
 
 635. 
 
 § 1212. Judgment by default in certain actions on con- 
 tract; how taken. 
 
400 Bae Examinations and Courses of Stttdy. 
 
 In an action specified in section four hundred and twenty of this 
 act, where the summons was personally served upon the defendant, 
 and the copy of the complaint, or a notice stating the sum of money 
 for which judgment will be taken, was served with the summons, or 
 where the defendant has appeared, but has made default in pleading, 
 the plaintiff may take judgment by default, as follows: 
 
 1. If the defendant has made default in appearing, the plaintiff must 
 file proof of the service of the summons, and of a copy of the com- 
 plaint or the notice; and also proof, by affidavit, that the defendant 
 has not appeared. Whereupon the clerk must enter final judgment 
 in his favor. 
 
 2. If the defendant had seasonably appeared, but has made default 
 in pleading, the plaintiff must file proof of the service of the sum- 
 mons and of the appearance or of the appearance only; and also proof, 
 by affidavit, of the default. Whereupon, the clerk must enter final 
 judgment in his favor. 
 
 If the defendant has made default in appearing or pleading, and 
 the case is not one where the clerk can enter final judgment, as pre- 
 scribed in either of the foregoing subdivisions of this section, the 
 plaintiff must apply to the court for judgment, as prescribed in sec- 
 tion 1214 of this act. 
 
 § 1213. Amount of judgment in such cases; how deter- 
 mined. 
 
 Where final judgment may be entered by the clerk, as prescribed in 
 the last section, the amount thereof must be determined as follows: 
 
 1. If the complaint is verified, the judgment must be entered for 
 the sum, for which the complaint demands judgment; or, at the 
 plaintiff's option, for a smaller sum; and if a computation of interest 
 is necessary, it may be made by the clerk. 
 
 2. If the complaint is not verified, the clerk must assess the amount 
 due to the plaintiff, by computing the sum due upon an instrument for 
 the payment of money only, the non-payment of which constitutes a 
 cause of action, stated in the complaint; and by ascertaining, by the 
 examination of the plaintiff, upon oath, or by other competent proof, 
 the amount due to him for any other cause of action stated in the 
 complaint. If an instrument, specified In this subdivision, has been 
 lost, so that it cannot be produced to the clerk, he must take proof 
 of its loss and of its contents. Either party may require the clerk to 
 reduce to writing and file the assessment, and the oral proof, if any, 
 taken thereupon. 
 
 636. 
 
 § 1214. Application to court for judgment by default; 
 
 when necessary. 
 
 Where the summons was personally served upon the defendant, 
 within the State, and he has made default in appearing, or where the 
 defendant has appeared, but has made default in pleading; and the 
 
Bae Examiktatioe-s and Coueses of Study. 401 
 
 case is not one where the clerk can enter final judgment, as prescribed 
 in the last two sections, the plaintiff may apply to the court, or to a 
 judge or justice thereof out of court, for judgment. Upon the appli- 
 cation he must file, if the default was in appearing, proof of service 
 of the summons; or, if the default was in pleading, proof of appear- 
 ance, and also, if a copy of the complaint was demanded, proof of 
 service thereof, upon the defendant's attorney; and in either case, 
 proof by aSBdavit, of the default which entitles him to judgment. If 
 one or more of the defendants have appeared, and one or more de- 
 fendants have failed to appear, then the application for judgment 
 must be made to the court, unless the defendants who have appeared 
 consent to the making of such application to a judge or justice out 
 of court. 
 
 637. 
 
 § 1273. Judgment may be confessed. 
 
 A judgment by confession may be entered, without action, either 
 for money due or to become due, or to secure a person against con- 
 tingent liability in behalf of the defendant, or both, as prescribed in 
 this article. 
 
 § 1274. Statement; form thereof. 
 
 A written statement must be made, and signed by the defendant, 
 to the following effect: 
 
 1. It must state the sum, for which judgment may be entered, and 
 authorize the entry of judgment therefor. 
 
 2. If the judgment to be confessed is for money due or to become 
 due, it must state concisely the facts, out of which the debt arose; and 
 must show, that the sum confessed therefor is justly due, or to become 
 due. 
 
 3. If the judgment to be confessed is for the purpose of securing the 
 plaintiff, against a contingent liability, it must state concisely the 
 facts, constituting the liability; and must show, that the sum con- 
 fessed therefor does not exceed the amount of the liability. 
 
 The statement must be verified by the oath of the defendant, to the 
 effect, that the matters of fact therein set forth are true. 
 
 638. 
 
 § 19'3'2. Judgment against defendants jointly indebted, 
 when all are not served. 
 In an action, wherein the complaint demands judgment for a sum 
 of money against two or more defendants, alleged to be jointly in- 
 debted upon contract, if the summons is served upon one or more, but 
 not upon all of the defendants, the plaintiff may proceed against the 
 defendant or defendants, upon whom it is served, unless the court 
 otherwise directs; and, if he recovers final judgment, it may be taken 
 against all the defendants thus jointly indebted. 
 26 
 
402 Bae Examinations and Cottesbs of Study. 
 
 § 1933. Effect of such judgment. 
 
 Such a judgment is conclusive evidence of the liability of each de- 
 fendant, upon whom the summons was personally served, or who ap- 
 peared in the action. Where it is taken against a defendant, upon 
 whom the summons was served by publication, or without the State, 
 pursuant to an order for that purpose, it has the effect as against 
 that defendant, specified in section 445 of this act. As against such 
 a defendant, who is allowed to defend after judgment, or as against 
 a defendant not summoned, it is evidence only of the extent of the 
 plaintiff's demand, after th£ liability of that defendant has beea 
 established, by other evidence. 
 
 639. 
 
 § 1240. When a judgment may be enforced by execution. 
 
 In either of the following cases, a final judgment may be enforced 
 by execution: 
 
 1. Where it is for a sum of money, in favor of either party; or 
 directs the payment of a sum of money. 
 
 2. Where it is in favor of the plaintiff, in an action of ejectment, 
 or for dower. 
 
 3. In an action to recover a chattel, where it awards a chattel to 
 either party. 
 
 640. 
 
 § 1364. The different kinds of execution. 
 
 There are four kinds of execution, as follows: 
 
 1. Against property. 
 
 2. Against the person. 
 
 3. For the delivery of the possession of real property with or with- 
 out damages for withholding the same. 
 
 4. For the delivery of the possession of a chattel, with or without 
 damages for the taking or detention thereof. 
 
 An execution is the process of the court, from which it is issued. 
 
 641. 
 
 § 1325. Limitation of time to appeal. 
 
 An appeal to the court of appeals, must be taken within sixty days 
 after service, upon the attorney for the appellant, of a copy of the 
 judgment or order appealed from, and a written notice of the entry 
 thereof. 
 
 642. 
 
 § 1326. Security to perfect appeal. 
 
 To render a notice of appeal, to the court of appeals, effectual, for 
 any purpose, except in a case where it is specially prescribed by law, 
 that security is not necessary, to perfect the appeal, the appellant 
 
Bae Examinations and Courses of Study. 403 
 
 must give a written undertaking, to the effect, that he will pay all 
 costs and damages, which may be awarded against him on the appeal, 
 not exceeding fiye hundred dollars. The appeal is perfected, when 
 such an undertaking is given and a copy thereof, with notice of the 
 filing thereof, is served, as prescribed in this title. 
 
 643. 
 
 Within thirty days after service upon the attorney for the appellant 
 of a copy of the judgment or order appealed from and a written notice 
 of the entry thereof. 
 
 Code, sec. 1351. 
 
 644. 
 5 13B1. **•»»• Security is not required to perfect the 
 appeal; but, except where it is otherwise specially prescribed by law, 
 the appeal does not stay the execution of the judgment or order ap- 
 pealed from; unless the court, in or from which the appeal is taken, 
 or a judge thereof, makes an order, directing such a stay. Such an 
 order may be made, and may, from time to time, be modified, upon 
 such terms, as to security or otherwise, as justice requires. If security 
 is given, either as a condition of granting the order, or as prescribed 
 in the next section, the provisions of title second of this chapter apply 
 thereto, as if the appellate division of the supreme court was specified 
 in those provisions, in place of the appellate court, and a judge of the 
 same court, in place of a judge of the court below. Execution of a 
 judgment for the recovery of money only shall not be stayed without 
 security for more than thirty days after the service upon the attorney 
 for the appellant of a copy of the judgment and written notice of 
 the entry thereof. 
 
 645. 
 
 § 1695. Affidavit in replevin, before commencement of 
 
 action. 
 
 The affidavit, to be delivered to the sheriff, as prescribed in the last 
 section, must particularly describe the chattel to be replevied; and 
 must contain the following allegations: 
 
 1. That the plaintiff is the owner of the chattel, or is entitled to 
 the possession thereof, by virtue of a special property therein; the 
 facts with respect to which must be set forth. 
 
 2. That it is wrongfully detained by the defendant. 
 
 3. The alleged cause of the detention thereof, according to the 
 best knowledge, information, and belief of the person making the 
 affidavit. 
 
 4. That it has not been taken by virtue of a warrant, against the 
 plaintiff, for the collection of a tax, assessment, or fine, issued in 
 pursuance of a statute of the State, or of the United States; or, if it 
 has been taken under color of such a, warrant, either that the taking 
 
404 Bak Examinations aihd Coueses of Study. 
 
 was unlawful, by reason of defects in the process, or other causes 
 specified, or that the detention is unlawful, by reason of facts specified, 
 which have subsequently occurred. 
 
 5. That it has not been seized by virtue of an execution or warrant 
 of attachment, against the property of the plaintiff, or of any person 
 from or through whom the plaintiff has derived title to the chattel, 
 since the seizure thereof; or, if it has been so seized, that it was 
 exempt from the seizure, by reason of facts specified, or that its 
 detention is unlawful, by reason of facts specified which have subse- 
 quently occurred. 
 
 6. Its actual value. 
 
 646. 
 
 § 1991. State writs enumerated. 
 
 The writ of habeas corpus to bring up a person to testify, or to 
 answer; the writ of habeas corpus, and the writ of certiorari, to in- 
 quire into the cause of detention; the writ of mandamus; the writ of 
 prohibition; the writ of assessment of damages, which is substituted 
 for the writ heretofore known as the writ of ad quod damnum; and 
 the writ of certiorari to review the determination of an inferior 
 tribunal, which may be called the writ of review, shall hereafter be 
 styled, collectively. State writs. 
 
 647. 
 
 § 2015. Who entitled to prosecute the writs. Habeas 
 
 corpus may issue on Sunday. 
 
 A person imprisoned or restrained in his liberty, within the State, 
 for any cause, or upon any pretense, is entitled, except in one of the 
 cases specified in the next section, to a writ of habeas corpus, or a 
 writ of certiorari, as prescribed in this article, for the purpose of 
 inquiring into the cause of the imprisonment or restraint, and, in a 
 case prescribed by law, of delivering him therefrom. A writ of habeas 
 corpus may be issued and served under this section, on the first day 
 of the week, commonly called Sunday; but it cannot be made return- 
 able on that day. 
 
 648. 
 
 Mandamus is a writ issued to compel ofHcial or judicial action. 
 26 Cyc. 139-142. 
 
 § 2067. Kinds of writ ; how alternative writ granted. 
 
 A writ of mandamus is either alternative or peremptory. The 
 alternative writ may be granted upon an afBdavit, or other written 
 proof, showing a proper case therefor; and either with or without 
 previous notice of the application, as the court thinks proper. 
 
 649. 
 
 A writ of prohibition is an extraordinary judicial writ issuing out 
 of a court of superior jurisdiction and directed to an inferior tribunal. 
 
Bae Examinations and Courses of Study. 405 
 
 commanding it to cease abusing or usurping judicial functions. 32 
 Cyc. 599. 
 
 § 2091. Kinds of writ ; how granted. 
 
 A writ of prohibition is either alternative or absolute. The alterna- 
 tive writ may be granted upon an affidavit, or other written proof, 
 showing a proper case therefor, and either with or without previous 
 notice of the application, as the court thinks proper. 
 
 § 2094. Alternative writ must issue first ; its contents. 
 
 Except as otherwise specially prescribed by law, an absolute writ 
 of prohibition cannot be issued, until an alternative writ has been 
 issued and duly served, and the return day thereof has elapsed. The 
 alternative writ must be directed to the court in which, or to the 
 judge before whom, and also to the party in whose favor, the pro- 
 ceedings to be restrained were taken, or are about to be taken. It 
 must command the court or judge, and also the party, to desist and 
 refrain from any further proceedings in the action or special pro- 
 ceeding, or with respect to the particular matter or thing described 
 therein, as the case may be, until the further direction of the court 
 issuing the writ; and also to show cause, at the time when, and the 
 place where, the writ is made returnable, why they should not be ab- 
 solutely restrained from any further proceedings in that action, special 
 proceeding, or matter. The writ need not contain any statement of 
 the facts or legal objections, upon which the relator founds his claim 
 to relief. 
 
 650. 
 
 A writ of certiorari is a writ issued to review the dstermination of 
 an inferior tribunal. (Code, sec. 1992.) It is issued from a superior 
 court directed to one of inferior jurisdiction commanding the latter to 
 certify and return to the former the record in the particular case. 
 (6 Cyc. 737.) 
 
 § 2120, Cases where writ may issue. 
 
 The writ of certiorari regulated in this article, except the writ 
 specified in section 2124 of this act, is issued to review the determina- 
 tion of a body or ofiBcer. It can be issued in one of the following 
 cases only: 
 
 1. Where the right to the writ is expressly conferred, or the issue 
 thereof is expressly authorized, by a statute. 
 
 2. Where the writ may be issued at common law, by a court of 
 general jurisdiction, and tlie right to the writ, or the power of the 
 court to issue it, is not expressly taken away by a statute. 
 
 § 2121. Cases where it cannot issue. 
 
 A writ of certiorari cannot he issued, to review a determination, 
 made, after this article takes effect, in a civil action or special pro- 
 ceeding, by a court of record, or a judge of a court of record. 
 
406 Bae Examinations and Cottesbs of Study. 
 
 § 2122. The same. 
 
 Except as otherwise expressly prescribed by a statute, a writ of 
 certiorari cannot be issued, in either of the following cases: 
 
 1. To review a determination, which does not finally determine the 
 rights of the parties, with respect to the matter to be reviewed. 
 
 2. Where the determination can be adequately, reviewed, by an ap- 
 peal to a court, or to some other body or oflScer. 
 
 3. Where the body or officer, making the determination, is ex- 
 pressly authorized, by statute, to rehear the matter, upon the relator's 
 application; unless the determination to be reviewed was made upon 
 a rehearing, or the time within which the relator can procure a re- 
 hearing has elapsed. Yide, 199 N. Y. 150 j id. p. 382. 
 
PRACTICE ON ADMISSION. 
 
 AfTEE EXAMINATIOIT. 
 
 Practice on admission after examination and certification 
 ty the State Board of Law Examiners is regulated by Kule 
 III of the Kules of the Court of Appeals for the Admission 
 of Attorneys and Counselors at Law, as amended May 17, 
 1911, to take effect July 1, 1911, and by Rule I of the Gen- 
 eral Rules of Practice. 
 
 Rule III of the Rules of the Court of Appeals reads as 
 follows : 
 
 RULE m. 
 
 Admission on Examination. 
 
 Three classes of persons may be admitted to the Bar upon 
 examination : 
 
 1. Persons who are not graduates of a college or univer- 
 sity; 
 
 2. Persons who are graduates of a college or university; 
 and 
 
 3. Persons who have been admitted as attorneys and have 
 practiced three years in another state or country. 
 
 In each class the applicant must prove by his own affidavit 
 to the satisfaction of the State Board of Law Examiners that 
 lie is a citizen of the United 'States, twenty-one years of age, 
 stating his age, and an actual and not a constructive resident 
 of the State for not less than six months immediately preced- 
 ing and that he has not been examined for admission to prac- 
 tice and been refused admission within four months, and that 
 he has studied law in the manner and according to the condi- 
 tions in these rules prescribed. 
 
 Applicants in the first class (i. e., persons who are not 
 graduates of a college or university) must have studied law 
 for a period of four years. Such an applicant may pursue 
 his course of law study wholly by serving a clerkship in the 
 office of a practicing attorney ; or partly by serving such clerk^ 
 ship and partly by attending a law school; but every such 
 
 [407] 
 
408 Bar Examhtations and Cotjbses of Study. 
 
 applicant must serve sucli clerkship for a period of at least 
 one year continuously either 'before examination by the State 
 Board of Law Examiners or after such examination and prior 
 to admission to the Bar. 
 
 Applicants in the second class (i. e., persons who are grad- 
 uates of a college or university) must have studied law for a 
 period of three years. Such an applicant may pursue his 
 course of law study wholly by serving a clerkship in the office 
 of a practicing attorney ; or wholly by attending a law school ; 
 or partly by serving such clerkship and partly by attending a 
 law school. 
 
 Applicants in the third class (i. e., persons who have been 
 admitted as attorneys and have practiced three years in an- 
 other state or country) must have studied law for a period 
 of one year within this State and pursue such course of study 
 either by serving a clerkship or by attendance upon a law 
 school as the applicant may elect. 
 
 Candidates for admission to the Bar under this rule (i. e-, 
 upon examination) may be admitted and licensed upon pro- 
 ducing and filing with the court the cCTtiflcate of the State 
 Board of Law Examiners that the applicant has satisfactorily 
 passed the examination pr^oribed by these rules and has com- 
 plied with their provisions, and upon producing and filing 
 with the court, in the case of applicants in the first class {y. e., 
 persons who are not graduates of a college or university), evi- 
 dence that he has served a regular clerkship of one year in 
 this 'State with an attorney or attorneys in regular practice, 
 either before or after having passed such examination. The 
 applicant must also produce and file evidence that he is a 
 person of good moral character which must be shown by the 
 affidavits of two reputable persons of the town or city in 
 which he resides, one of whom must be a practicing attorney 
 of the Supreme Court. Such affidavits must state that the 
 applicant is, to the knowledge of the affiant, a person of good 
 moral character, and must set forth in detail the facts upon 
 which such knowledge is based ; but such affidavits shall not 
 be conclusive and the court may make further examination 
 and inquiry. 
 
 If the applicant 'be a graduate of a college, or university, 
 he must have pursued the prescribed course of law study after 
 
Bab Examinatioks and Coueses of Study. 409 
 
 his graduation, and, if he be a person admitted to the bar of 
 another state or country, he must have pursued his prescribed 
 period of law study after having remained as a practicing at- 
 torney in such other state or country for the period of three 
 years. 
 
 Eule I of the General Eules of Practice reads as follows : 
 
 " EULE I. — Application for Admission as Attorneys. 
 
 Within ten days after the first day of January in each 
 year, the Appellate Division in each department shall ap- 
 point a committee on character and fitness of not less than 
 three for the department or may appoint a committee for 
 each judicial district within the department, to whom shall 
 be referred all applications for admission to practice as at- 
 torney and counselor at law, such committee to continue in 
 office until their successors are appointed. To the respective 
 committees shall be referred all applications for admission 
 to practice, either upon the certificate of the State Board of 
 Law Examiners or upon motion under Eule II of the Eules 
 of the Court of Appeals for the admission of attorneys and 
 counselors at law. The committee shall require the attend- 
 ance before it or a member thereof of each applicant, with 
 the affidavit of at least two practicing attorneys acquainted 
 with such applicant, residing in the judicial district in which 
 the applicant resides, that he is of such character and general 
 fitness as justifies admission to practice, and the affidavit 
 must set forth in detail the facts upon which the affiant's 
 knowledge of the applicant is based, and it shall be the duty 
 of the committee to examine each applicant and the com- 
 mittee must be satisfied from such examination and other 
 evidence that the applicant shall produce that the applicant 
 has such qualifications as to character and general fitness as 
 in the opinion of the committee justify his admission to 
 practice, and no person shall be admitted to practice except 
 upon the production of a certificate from the committee to 
 that effect, unless the Court otherwise orders. 
 
 "No applicant shall be entitled to receive such a certificate 
 who is not able to speak and to write the English language 
 intelligently, nor until he affirmatively establishes to the 
 
410 Bae Examinations and Ooueses of Study. 
 
 satisfaction of the comniittee that he possesses such a char- 
 acter as justifies his admission to the Bar and qualifies him 
 to perforin the duties of an attorney and counselor at law. 
 
 An applicant for admission to practice as an attorney and 
 counselor at law on motion, under the provisions of Eule II 
 of the Rules of the Court of Appeals for the Admission of 
 Attorneys and Counselors at law, must present to the Court 
 proof that he has been admitted to practice as an attorney 
 and counselor at law in the highest Court of law in another 
 State or in a country whose jurisprudence is based upon the 
 principles of the common law of England ; a certificate, exe- 
 cuted by the proper authorities, that he has been duly ad- 
 mitted to practice in such State or country; that he has 
 actually remained in said State or country and practiced in 
 such Court as attorney and counselor at law for at least three 
 years ; a certificate from a judge of such Court that he has 
 been duly admitted to practice and has actually continuously 
 practiced as an attorney and counselor at law for a period of 
 at least three years after he has been admitted, specifying the 
 name of the place or places in which he has sO practiced and 
 that he has a good character as such attorney. Such certifi- 
 cate Toausi be duly certified by the clerk of the Court of 
 which the judge is a member and the seal of the Court must 
 be attached thereto. He must also prove that he is a citizen 
 of the United States and has been an actual resident of the 
 State of 'New York or of an adjoining State for at least six 
 months prior to the making of the application, giving the 
 place of his residence by street and number, if such there be, 
 and the length of time he has been such resident. He shall 
 also submit the afiidavits of two persons who are reaident't o f 
 the judicial d istrict in w hich he resides, one of whom must 
 be an attorney and counselor at law, thaflie is of such char- 
 actei and general fitness as justifies admission to practice, 
 and the afiidavit must set forth in detail the facts upon which 
 the afiiant's knowledge of the applicant is based. In all 
 cases the applicant must appear in person before the Court 
 on the motion for bis admission and also before the com- 
 mittee on character and fitness for the district in which the 
 application is made. When the applicant resides in an ad- 
 
Bae Examinations and Coueses of Study. 411 
 
 joining State and a motion is made to admit him to practice 
 in this State without actual residence herein, in addition to 
 the foregoing facts, the applicant must prove to the satis- 
 faction of the Court that he has opened and maintains an 
 office in this State for the transaction of law business therein. 
 
 In all cases the applicant for admission must file with the 
 clerk of the Appellate Division of the proper department 
 the papers required for his admission as hereinbefore speci- 
 fied prior to or at the time of the motion for admission to 
 practice." 
 
 Each applicant who has been .examined is notified of the 
 result by the Secretary of the State Board of Law Examiners 
 in about from two to three weeks after the examination has 
 been held, by written notice directed to him at his home ad- 
 dress as the same is sworn to in his application papers. 
 
 That notice may be (1) that he has failed generally, or 
 (2) that he has failed in Group One, Pleading and Prac- 
 tice and Evidence or (3) that he has failed in Group Two, 
 Substantive Law, or (4) that he has been successful. 
 
 An applicant who fails generally or in either group is 
 entitled to a re-examination provided he notifies the Secre- 
 tary of the Board by mail of his desire therefor, at least 
 fifteen days before the examination at which he intends 
 to appear and files with him, at the same time, his own affi- 
 •davit stating that he is and has been for the six months prior 
 to such examination, an actual and not constructive resident 
 of this State, giving the place of such residence and street 
 and number, if any. (Pule I, Pules of the State Board of 
 Law Examiners.) An applicant who has failed to pass one 
 examination cannot again he exiamined, until at least four 
 months after such failure. (Pule VIII, Pules, Court of 
 Appeals.) On payment of one examination fee, the appli- 
 cant shall be entitled to the privilege of not exceeding three 
 examinations. (Judiciary Law, Laws 1909, chap. 35, sec. 
 465.) 
 
 The applicant who receives notice that he failed in one of 
 the groups will receive a pass card for the other group, and 
 will not be re-examined in the latter group ; he will be cer- 
 tified for admission whenever he passes, on a re-exiamination, 
 in the group in which he has failed. 
 
412 Bab Examination's and Coueses of Study. 
 
 To the applicant who has been successful, a certificate 
 signed by the members of the State Board of Law Examiners 
 is mailed, certifying his name to the Appellate Division 
 in which he has resided for the six months immediately 
 preceding his examination as the same appears in his appli- 
 cation papers. The certificate is to the effect that the ap- 
 plicant has satisfactorily passed the examination prescribed 
 by the Eules of the Court of Appeals, regulating admission 
 to the Bar in this State, and has complied with their pro- 
 visions. 
 
 The applicant is required to appear in person before the 
 Committee on Character and Fitness or a member thereof, 
 and to file with the Clerk of the Appellate Division to which 
 he is certified, none other has jurisdiction, the above certifi- 
 cate of the State Board of Law Examiners and the afiidavits 
 of good moral character and general fitness hereinbefore pre- 
 scribed. 
 
 If the Committee on Character and Fitness is satisfied 
 from its personal examination of the applicant and other 
 evidence that the applicant shall produce that the applicant 
 has such character aad general fitness as in the opinion of the 
 Committee justify his admission to practice, that he is able 
 to speak and write the English language correctly and that 
 he has such qualifications as to character and fitness as in the 
 opinion of the Committee justifies his admission to the Bar, 
 and qualifies him to perform the duties of an Attorney and 
 Counselor at law, it shall so certify to the Appellate Division. 
 Upon the production of that certificate which is filed, by the 
 Committee with the Court, and the personal appearance of 
 the applicant before the Court, he is admitted to the Bar, 
 provided he takes the Constitutional Oath of Office in open 
 Court and subscribe the same in a roll or book kept in the 
 office of the Clerk of the Appellate Division for that purpose. 
 (Judiciary Law, sec. 466.) He is also further required as 
 a condition precedent to his practicing law in this State, to 
 register in tine office of the Clerk of the Court of Appeals, as 
 required by chapter 35, Laws of 1909. (Judiciary Law, 
 sec. 468.) 
 
Bae Examinations and Ooueses of Study. 413 
 
 The procedure on admission varies somewhat in each de- 
 partment. The practice in each department as it now ob- 
 tains is as follows : 
 
 FIRST DEPAETMENT. 
 
 The Committee on Character on receiving a copy of the 
 report of the State Board of Law Examiners, publishes in 
 the if ew York Law Journal, a notice in the following form : 
 
 COURT NOTICE. 
 
 Appellate Division — Supeeme Couet — Eiest 
 Depaetment. 
 
 admission to the bae. 
 
 Candidates for admission to the Bar whose names are ap- 
 pended and who have been certified by the State Board of 
 Law Examiners as having passed the law examinations, are 
 notified to produce and file on or before , 
 
 with the Clerk of the Appellate Division, evidence of good 
 moral character. Such evidence, in order to comply with 
 the rules, must include at least two affidavits from attorneys 
 acquainted with tjie applicant, which must state that the ap- 
 plicant is to the knowledge of the affiant a person of good 
 moral character, and must set forth in detail the facts upon 
 which such knowledge is based, and such affidavits must be 
 made by practicing attorneys of the Supreme Court per- 
 sonally known to a member of the Committee. Affidavits 
 on printed forms will not be accepted. Each candidate shall 
 also file the certificate received from the State Board of Law 
 Examiners and a sworn statement of his name and place of 
 residence, with particulars as to his education and office ex- 
 perience, upon a form which will be furnished by the Clerk 
 of the Court upon personal application. A strict compliance 
 with the foregoing requirements is essential. All applicants 
 who have had their names changed shall notify the clerk of 
 the Appellate Division. 
 
 Information is requested as to the moral character of the 
 candidates whose names are appended and as to their qualifi- 
 
414 Bae Examinations and Courses of Study. 
 
 cation to be admitted to practice, and may be sent to any 
 member of the committee. (Signed.) 
 
 Committee on Character. 
 
 The blank form of statement is as follows : 
 
 COMMITTEE ON CHARACTER. 
 
 Questions to be Answeeed by Each Applicant. 
 
 1. Give your full name, age, residence and birth-place. If 
 bom in a foreign country, at what age did you come to the 
 United States ? 
 
 2. What schools have you attended and between what 
 dates? 
 
 3. Did you attend college? If so, state the colleges you 
 have attended, the periods of your attendance, and the de- 
 grees you have received. 
 
 4. Did you attend a law school ? If so, what school and 
 when ? What, if any, degrees in law, have you received ? 
 
 5. Have you been employed in, or studied law in, a law 
 office? If so, give a full list of such offices and state the 
 period of your employment or study in each. 
 
 6. Have you ever applied for admission to practice as an 
 attorney or counselor in any court in any other State or 
 country ? If so, state when and where, and whether you 
 were admitted to the Bar and if so, how long and where 
 you practiced. 
 
 7. Have you ever applied for admission to the Bar of the 
 State of New York in any Department other than the First ? 
 If so, where, when, and with what result? 
 
 8. Have you ever been engaged in any business or pro- 
 fession other than the law ? If so, when and where ? State 
 fully the names and addresses of your employers, the periods 
 of your employment, and the positions you have occupied. 
 
 9. Give the names and addresses of the persons to whom 
 you refer as to your character, and state how long you have 
 "known each. 
 
 Signature of Applicant. 
 
Bae Examinations and Coueses of Study. 415 
 STATE OE NEW TOEK, T 
 
 rSS ' 
 
 County of New Yoek, J 
 
 .... , being duly sworn, says : I have read 
 
 the foregoing questions and have answered the Siame in my 
 own handwriting fully and frankly. The answers sub- 
 scribed by me are true of my own knowledge. 
 
 Signature of Applicant. 
 
 Sworn to before me this .... day of 
 , 191... 
 
 [Applicants must answer ALL questions and sign both the 
 application and the affidavit.] 
 
 Appended to the notice and printed therewith are the 
 names and home addresses of the successful candidates. 
 Applicants receive no other or further notice from the Com- 
 mittee on Character and must watch the " Law Journal " 
 for the same. 
 
 The applicant must thereupon make personal application 
 to the Clerk of the Appellate Division for the foregoing blank 
 form of statement, to be verified, giving his name, place of 
 residence and the other particulars required by the Com- 
 mittee, which as soon as it is verified must be filed with the 
 certificate of the State Board of Law Examiners and tEe 
 laffidavits of character, with the Clerk of the Appellate 
 Division. 
 
 The applicant will be given due notice in the New York 
 Law Journal of the time and place at which he will be re- 
 quired to appear in person before the Committee on Char- 
 acter and also, if his application is approved by the Com- 
 mittee, of the day and hour of his appearance in person be- 
 fore the Appellate Division for admission, at which time he 
 will take the Constitutional Oath of Office in open court, and 
 subscribe the same in a roll or book kept in the office of the 
 Clerk of the Appellate Division for that purpose. • 
 
416 Bae Examim-atioks and Coueses of Study. 
 
 SECOND DEPARTMENT. 
 
 In this Department the Appellate Division lias adopted 
 the following special rule : 
 
 " RtTLE EeLATING to THE ADMISSION OF AtTOENEYS IN THE 
 
 Second Depaetment. 
 
 Notice of the time of application for admission as at- 
 torneys by those who have passed the examination pre- 
 scribed by the Kules of the Court of Appeals, will be pub- 
 lished in the " Law Journal," at which time applicants must 
 file with the Clerk the papers enumerated in Rule I of the 
 General Rules of Practice, and appear personally before the 
 Committee on Character to furnish such information as the 
 Committee may desire from them." 
 
 On receipt by the Clerk of the Appellate Division of this 
 Department, of the report of the State Board of Law Exami- 
 ners, he mails to each of the successful candidates, at his 
 home address as the same appears in his application papers, 
 a notice which will state that the Committee on Character 
 will meet in the court room of the Appellate Division, 
 Borough Hall, Brooklyn, at a time and place therein speci- 
 fied. The applicant must then and there file with the Clerk, 
 the certificate of the State Board of Law Examiners, his 
 affidavits of character and general fitness, as specified in 
 said Rule, and his written answers to the printed questions, 
 which the Committee requires him to answer, as a part of 
 the information which it desires from each of them. These 
 questions are in substantially the same form as those in use 
 in the Eirst Department hereinbefore printed. Each appli- 
 cant will apply to the Clerk of the Appellate Division, in 
 person, for the printed questions, in case they are not sent to 
 him with the notice above referred to. Each applicant will 
 appear before the Committee on Character, in person, and 
 after the Committee has examined each applicant and re- 
 ports the names of those whom it recommends to the Court 
 for admission, the applicants are notified by the Clerk of 
 the time and place of their being sworn in, where they must 
 
Bae Examinatioits and Courses of Study. 417 
 
 attend in person, take the Constitutional Oath of Office 
 and subscribe the same in the roll gr book kept in the office 
 of the Clerk of the Appellate Division for that purpose. 
 
 THIED DEPAETMENT. 
 
 The Appellate Division in this Department has appointed 
 the trial justices residing in each of the judicial districts, 
 constituting the Department, viz: The Third, Fourth and 
 Sixth Judicial Districts, the Committee on Character and 
 Fitness for the Department. Each District Committee 
 passes on the character and fitness of the applicants residing 
 in the district. 
 
 Each applicant on receipt of the certificate of the State 
 Board of Law Examiners, must prepare his affidavits of 
 character and fitness in the manner set forth in Eule I of the 
 Creneral Eules of Practice, attach the same to his certificate 
 from the Board of Law Examiners, and appear in person, 
 with the same before some one of the trial justices residing 
 in the district of his residence. The justice will make the 
 examination as to his character and general fitness required 
 by the rule, either then and there or at his convenience, and 
 if he approves of the application, he will sign and attach 
 to the papers presented to him a certificate to that effect, 
 directed to the Appellate Division, on a form, copies of 
 which he will have. When the certificate is signed by one 
 of the justices, the same and accompanying papers must be 
 presented to another of the justices of the district commit- 
 tee, who must also approve and sign the same. 
 
 The application must be approved as to character and 
 general fitness by two of the trial justices of the district in 
 which the applicant resides. 
 
 The applicant, pursuant to the provision of Eule XV of 
 the Special Eules of the Third Judicial Department, must 
 then file with the clerk of the Appellate Division at Albany, 
 the certificate of the State Board of Law Examiners, his 
 affidavits of character and general fitness, and the certificate 
 of the committee on character and fitness as aforesaid. 
 
 Eule XV reads as follows : 
 27 
 
418 Bab Examinations and Courses of Study. 
 
 EULE XV. 
 
 " Candidates for admission to the Bar may be sworn in 
 at the opening of the Court on any Thursday of the term, 
 providing the necessary j)apers therefor shall have been filed 
 with the Clerk of the Court on or before the Tuesday 
 preceding." 
 
 If the above described papers have been filed as therein 
 required, the applicant on any Thursday of the term there- 
 after, can appear in person and make application to be 
 admitted to practice. 
 
 If there are no objections thereto, the applicant is then 
 and there admitted, and thereupon takes the constitutional 
 oath of office in open court and subscribes the same in a roll 
 or book kept in the office of the Clerk of the Appellate 
 Division for that purpose. 
 
 FOURTH DEPAETMENT. 
 The Appellate Division of the Eourth Department has 
 appointed a Committee on Character and Fitness, for each 
 of the three judicial districts constituting that Department, 
 namely, for the Fifth, Seventh and Eighth Judicial Dis- 
 tricts. The names of the members of each of these com- 
 mittees can be obtained from the Clerk of the Appellate 
 Division, Fourth Department, Eochester, 'New York. Each 
 committee passes on the character and fitness of the appli- 
 cants residing in the district for which it is appointed. 
 
 On receipt of the report of the State Board of Law Exam- 
 iners, the clerk of the Appellate Division mails to each 
 applicant named therein, a notice of which the following 
 is a copy: 
 
 SUPEEME COUET, 
 Appellate Division, Fotjkth Department, 
 
 rochestee, n. y., , 191 . . 
 
 cleek's office, 
 , Clerk. 
 
 Your name has been reported favorably by the Board of 
 Law Examiners. You will please send to this office imme- 
 diately the certificate of said board, together with the affi- 
 
Bab Examinations and Courses ob Study. 419 
 
 davit of at least two practicing attorneys acquainted with 
 you, residing in the Judicial District in which you reside, 
 that you are of such character and general fitness as justifies 
 your admission to practice ; which afl&davit must set forth in 
 detail the facts upon which the aflfiant's knowledge is based. 
 
 You will also answer the questions of the " Committee on 
 Character and Fitness," verify the same, using for that pur- 
 pose the blank mailed to you herewith, and return the same 
 to this office with affidavits of character and fitness. 
 
 You will be required to appear before the Committee on 
 Character and Fitness of your Judicial District, at a time 
 and place to be appointed, of which you will receive notice. 
 
 Cleric. 
 
 The clerk also mails to each applicant a blank containing 
 questions to be answered and verified by each applicant in 
 substantially the same form required in the First Depart- 
 ment as hereinbefore set forth. 
 
 The applicant thereupon mails his certificate from the 
 State Board of Law Examiners, his affidavits of character 
 and fitness and his signed and verified answers to the ques- 
 tions, to the Clerk of the Appellate Division by whom they 
 are sent to the Committee on Character of the district in 
 which he lives. 
 
 The District Committee on Character thereupon gives 
 notice to each applicant of the time and place at which he 
 must appear in person before the Committee. 
 
 The Committee makes its final report to the Court in 
 writing. If that report approves, the applicant is then noti- 
 fied by the Clerk of the Court of the day and time, when he 
 must appear in person in open Court and be admitted to 
 practice. 
 
THE STATUTES AND RULES REGULATING ADMISSION 
 TO THE BAR IN THE STATE OF NEW YORK. 
 
 STATUTES. 
 
 JUDICIARY LAW. 
 (Chapter Thirty of the Consolidated Laws; Laws 1909, cb. 35.) 
 
 § 53. Power of court of appeals as to admission of attor- 
 neys and counsellors. 
 
 1. The court of appeals may from time to time make, 
 alter, and amend, rules not inconsistent with the constitution 
 or statutes of the state, regulating the admission of attor- 
 neys and counsellors at law, to practice in all the courts of 
 record of the state. 
 
 2. The court may make such provisions as it shall deem 
 proper for admission to practice as attorneys and counsel- 
 lors, of persons who have been admitted to practice in other 
 states or countries. 
 
 3. The court shall prescribe rules providing for a uni- 
 form system of examination of candidates for admission to 
 practice as attorneys and counsellors, which shall govern 
 the state board of law examiners in the performance of its 
 duties. 
 
 4. The rules established by the court of appeals, touch- 
 ing the admission of attorneys and counsellors to practice 
 in the courts of record of the state, shall not be changed or 
 amended, except by a majority of the judges of that court. 
 A copy of each amendment to such rules must, within five 
 days after it is adopted, be filed in the office of the secretary 
 of state. 
 
 5. Nothing contained in this chapter prevents the court 
 of appeals from dispensing, in the rules established by it, 
 with the whole or any part of the stated period of clerk- 
 ship, required from an applicant, or with the examination 
 where the applicant is a graduate of the Albany Law School, 
 
 [421] 
 
422 Bae E-xaminations and Coueses of Stttdt. 
 
 being the law department of the Union University, or of the 
 law department of the University of the City of lHew York, 
 or of the Law School of Columbia College, or of the Law 
 School of the University of Buffalo, or the New York Law 
 School, or the College of Law, Cornell University, or of the 
 School of Law, Syracuse University, or the Brooklyn Law 
 School of Saint Lawrence University, or Eordham_ Univer- 
 sity Law School, and produces Ms diploma upon Ms appli- 
 cation for admission. '.,_ ! ■ ■ 
 
 Subd. 1, Code Civil Procedure, § 193. 
 
 Subds. 2, 3, Code Civil Procedure, § 56. For remainder of section 
 see this chapter, §§ 56, 88, 460-465, 467. 
 
 Subd. 4, Code Civil Procedure, § 5.7. For remainder of section see 
 Executive Law, § 30. 
 
 Subd. 5, Code Civil Procedure, § 58. 
 
 § 58. Appointment and compensation of state board of law 
 
 examiners. 
 
 The members of the state board of law examiners shall 
 
 be appointed from time to time, by the court of appeals, 
 
 as provided in section four hundred and sixty-one of this 
 
 chapter. The court of appeals shall fix the compensatio-i 
 
 of the members of the said board. 
 
 Code Civil Procedure, § 56. For remainder of section see this chapter, 
 §§ 5a, 88, 460-465, 467. 
 
 § 88. Admission to and removal from practice by Appellate 
 division. 
 
 1. Upon the certificate of the state board of law exam- 
 iners, that a person has passed the required examination, if 
 the appellate division of the supreme court in the depart- 
 ment in which such person lives shall find such person is of 
 good moral character, it shall enter an order licensing and 
 admitting him to practice as an attorney and counsellor in 
 all courts of the state. 
 
 2. An attorney and counsellor, who is guilty of any de- 
 ceit, malpractice, crime or misdemeanor, or who is guilty 
 of any fraud or deceit in proceedings by which he was 
 admitted to practice as an attorney and counsellor of the 
 courts of record of this state, may be suspended from prac- 
 
-Bae Examinations and Coueses of Study. 423 
 
 tice, or removed from office, by the appellate division of 
 the supreme court. Any fraudulent act or representation 
 by an applicant in connection with his application or ad- 
 mission shall be sufficient cause for the revocation of his 
 license by the appellate division of the supreme court 
 granting the same. 
 
 3. Whenever any attorney and counsellor-at-law shall be 
 convicted of a felony, there may be presented to the appel- 
 late division of the supreme court a certified or exemplified 
 copy of the judgment of such conviction, and thereupon the 
 name of the person so convicted shall, by order of the court, 
 be stricken from the roll of attorneys. 
 
 4. Upon a reversal of the conviction for felony of an attor- 
 ney and counsellor-at-law, or pardon by the president of the 
 United States or governor of this state, the appellate divi- 
 sion shall have power to vacate or modify such order or 
 debarment. 
 
 5. The presiding justice of the appellate division making 
 the order of designation of a district attorney within the 
 department to prosecute a case for the removal or suspen- 
 sion of an attorney or counsellor, or the order of reference 
 in such cases, may make an order directing the expenses of 
 such proceedings to be paid by the county treasurer of the 
 county where the attorney or counsellor removed or sus- 
 pended, or against whom charges were made as prescribed 
 in section four hundred and seventy-six of this chapter, had 
 his last known place of residence or principal place of busi- 
 ness, which expenses shall be a charge upon such county. 
 
 Subd. 1, Code of Civil Procedure, § 56. 
 
 Subd. 2, Code Civil Procedure, §§ 66, 67. 
 
 Subds. 3, 4, Code Civil Procedure, § 67. 
 
 Subd. 5, Code Civil Procedure, § 68. 
 
 For remainder of § 56, see this chapter, §§ 53, 56, 460-465, 467. 
 
 For remainder of § 67 see this chapter, § 477. 
 
 For remainder of § 68 see this chapter, § 476. 
 
424 Bae ExA.MiiirATioNs aitd Cotjeses of Study. 
 
 AETICLE 15 
 
 AtTOENETS and CoUlfSELI.OES. 
 
 Section 460. Examination and admission of attorneys. 
 
 461. State board of law examiners continued. 
 
 462. Times and places of examinations. 
 
 463. Certification by state board of successful can- 
 
 didates. 
 
 464. Annual account by state board of law exam- 
 
 aminers. 
 
 465. Eee for examinations. 
 
 466. Attorney's oath of office. 
 
 467. Eace or sex no bar to admission to practice. 
 
 468. Registration of attorneys before beginning to 
 
 practice. 
 
 469. Official register of attorneys to be kept by 
 
 clerk of court of appeals. 
 
 § 460. Examination and admission of attorneys. 
 
 A citizen of the state, of full age, applying to be ad- 
 mitted to practice as an attorney or counsellor in the courts 
 of record of the state, must be examined and licensed to 
 practice as prescribed in this chapter. 
 
 Code Civil Procedure, § 56. For remainder of section see this chapter, 
 §§ 53, 56, 88, 461-465, 467. 
 
 § 461. state board of law examiners continued. 
 
 The state board of law examiners is continued. Said 
 
 board shall consist of three members of the bar, of at least 
 
 ten years' standing, who shall be appointed, from time to 
 
 time, by the court of appeals, and shall hold office, as a 
 
 member of such board for a term of three years, and until 
 
 the appointment of his successor. 
 
 Code Civil Procedure, § 56. For remainder of section see this chapter, 
 §§ 53, 56, 88, 460, 462-465, 467. 
 
 § 462. Times and places of examinations. 
 
 There shall be examinations of all persons applying for 
 
 admission to practice as attorneys and counsellors-at-law at 
 
Bae Examinations and Coueses of Study. 4.23 
 
 least twice in each year in each judicial department, and 
 
 at such other times and places as the court of appeals may 
 
 direct. 
 
 Code Civil Procedure, § 56. For remainder of section see this chapter, 
 §§ 53, 56, 88, 460, 461, 463-465, 467. 
 
 § 463. Certification by state board of successful candidates. 
 
 The State board of law examiners shall certify to the 
 appellate division of the supreme court of the department in 
 which each candidate has resided for the past six months 
 every person who shall pass the examination, provided such 
 person shall have in other respects complied with the rules 
 regulating admission to practice as attorneys and counsel- 
 lors, which fact shall be determined by said board before 
 examination. 
 
 Code Civil Procedure, § 56. For remainder of section see this chapter, 
 §§ 53, 56, 88, 460-462, 464, 465, 467. 
 
 § 464. Annual account by state board of law examiners. 
 
 The state board of law examiners shall render during the 
 
 month of January, an annual account of all their receipts 
 
 and disbursements to the court of appeals. 
 
 Code Civil Procedure, § 56. For remainder of section see this chapter, 
 §§ 53, 56, 88, 460-463, 465, 467. 
 
 §, 465. Fee for examinations. 
 
 Every person applying for examination for admission to 
 practice as an attorney and counsellor-at-law shall pay such 
 fee, not to exceed fifteen dollars, as may be fixed by the 
 court of appeals as necessary to cover the cost of such ex- 
 amination. On payment of one examination fee the appli- 
 cant shall be entitled to the privilege of not exceeding three 
 examinations. 
 
 Code Civil Procedure, § 56. For remainder of section, see this chapter, 
 §§ 53, 56, 88, 460-464, 467. 
 
 §, 466. Attorney's oath of ofice. 
 
 Each person, admitted as prescribed in this chapter must, 
 
 upon his admission, take the constitutional oath of office in 
 
 open court, and subscribe the same in a roll or book, to be 
 
 kept in the office of the clerk of the appellate division of the 
 
 supreme court for that purpose. 
 
 Code Civil Procedure, § 59. For remainder of section see this chapter, 
 § 264. 
 
ss. 
 
 426 Bae ExAMiNATioisrs akd Coueses of Study. 
 
 § 467. Eace or sex no bax to admission to practice. 
 
 Eace or sex shall constitute no cause for refusing any 
 
 person examination or admission to practice. 
 
 Code Civil Procedure, § 56. For remainder of section see this chapter, 
 §§ 53, 5C, 88, 460-465. 
 
 § 468. Registration of attorneys before beginning to prac- 
 tice. 
 
 Every person who is hereafter duly licensed and admitted 
 to practice as an attorney and counsellor-at-law in the courts 
 of record of this state by an appellate division of the su- 
 preme court, shall subscribe and take and file an oath or 
 affirmation v^hich must be substantially in the following 
 form, the blanks being properly filled before he begins or is 
 entitled to begin to practice for another as an attorney and 
 counsellor-at-law in the courts of this state or in any court 
 in the county of New York or in the county of Kings: 
 
 State of l^ew York, 
 County, 
 
 I, , being duly sworn (or affirmed) do depose 
 
 and say that I am a natural bom citizen of the United States 
 (if naturalized, state when and where) and now reside at 
 
 (or, if a resident of an adjoining state and 
 
 admitted to practice in the courts of record of this state an3. 
 whose office for the transaction of law business is within this 
 state, state the fact), that I was duly and 'regularly licensed 
 and admitted to practice as an attorney-at-law or as an at- 
 torney and counsellor-at-law in the courts of record of this 
 
 state at the term, 18 .... , of the general term 
 
 (or appellate division) of the supreme court (or other court 
 
 as the case may be) held at and that I took 
 
 the constitutional oath of office. 
 
 Subscribed and sworn to before me, 
 
 this day of , 190. .,. 
 
 which oath or affirmation shall be filed in the office of the 
 clerk of the court of appeals by the person making the same, 
 provided, nevertheless, that such affidavit or affirmation may 
 state that the deponent or affirmant believes that he took the 
 constitutional oath of office in lieu of stating unqualifiedly 
 that he did so, where the affidavit or affirmation states, or in 
 
Bar Examhstations ai^d Ooueses of Study. 4'37 
 
 substance shows, the deponent's or affirmant's lack of posi- 
 tive or certain recollection of having taken such oath, or 
 shows other substantial reason for thus qualifying the affi- 
 davit or affirmation on that subject. If any attorney or 
 counsellor-at-law or solicitor in chancery or attorney of or in 
 the supreme court on the first Monday of July, eighteen 
 hundred and forty-seven who was entitled to file the said 
 oath or affirmation under the provisions of laws of eighteen 
 hundred and ninety-eight, chapter one hundred sixty-five, as 
 amended, before July first, eighteen hundred and ninety- 
 nine, has failed to do so, the special term of the supreme 
 court of the judicial district where such attorney-at-law or 
 attorney or counsellor-at-law resides, may, upon proof by 
 affidavit showing reasonable grounds therefor, grant an order 
 permitting the applicant to make and file the oath or affirma- 
 tion required herein, with the same effect as if the same had 
 been made and filed within the time above stated, and reliev- 
 ing him from penalties and prosecutions by reason of failure 
 to make and file such oath or affirmation within the time 
 required. Every person filing with the clerk of the court of 
 appeals the oath or affirmation hereinbefore provided shall 
 pay to the said clerk at the time of such filing the sum of 
 tY?^enty-five cents to defray the necessary disbursements in- 
 curred by him in carrying out the provisions of this article. 
 A person who practices any fraud or deceit or knowingly 
 makes any false statement in the oath or affirmation in and 
 by this section required to be made and filed is guilty of 
 felony. 
 
 L. 1898, Ch. 165, § 1, as amended by L. 1899, Cai. 225, § 1; L. 1898, 
 Ch. 165, § 2; L. 1898, Ch. 165, § 5, as amended by L. 1906, Ch. 154, § 1. 
 
 § 469. Official register of attorneys to be kept by clerk of 
 court of appeals 
 
 It shall be the duty of the clerk of the court of appeals 
 to file in his office the said oaths or affirmations aforesaid, 
 and to compile the statements contained therein, and to enter 
 therefrom in a bound book or volume to be kept by him for 
 that purpose, which shall be known and designated as and 
 is hereby made the " official register of attorneys and coun- 
 sellors-at-law in the state of New York," in the alphabetical 
 
428 Bae Examinations and Coueses op Study. 
 
 order of the first letter of their surnames, the names and 
 residences and the title of the court and the time and place 
 ■where admitted, and the date the oath or affirmation afore- 
 said was filed, of all persons who have filed in his said 
 office the oath or affirmation as aforesaid, which said 
 " official register of attorneys and counsellors-at-law in the 
 state of New York," is hereby declared to be a public record 
 and presumptive evidence that the individuals therein named 
 are duly registered to practice as attorneys and counsellors- 
 at-law in the courts of record of this state or in any court in 
 the counties of New York and Kings. 
 L. 1898, Ch. 165, § 3. 
 
 § 264. Duties of clerk of appellate divlsioii in each depart- 
 ment. 
 
 6. The clerk of each department of the appellate division, 
 upon the payment of the fees allowed by law, must deliver to 
 the person admitted to practice as an attorney and counsellor 
 a certificate under his hand and official seal, stating that such 
 person has been so admitted, and that he has taken and sub- 
 scribed the constitutional oath of office as prescribed in sec- 
 tion four hundred and sixty-six of this chapter. 
 Code Civil Procedure, § 59. 
 
 NOTE. 
 The general statutory provisions governing attorneys and 
 counsellors, not hereinbefore set forth may be found in 
 Judiciary Law (Ch. 30, Consolidated Laws, Ch. 35, Laws 
 1909) sees. 4Y0-479. 
 
 Penal Law (Ch. 40, Consolidated Laws, 
 Ch. 88, Laws 1909), art. 24, sees. 
 270, 271, as amended Laws 1910, 
 Ch. 327, sees. 272, 273, 274, 275, 
 276, 277, 278, 279 and 280 (Cor- 
 porations not to practice law), and 
 see. 1876. 
 
RULES 
 
 In Eelation to the Admission of Attorneys and Counselors- 
 
 at-Law. 
 
 June 1, 1908. 
 
 RULES OF THE COURT OF APPEALS, 
 
 Adopted by the judges of the Court of Appeals on Decem- 
 ber 2, 1895, to take effect on January 1, 1896, as amended 
 April 24, 1908, to take effect June 1, 1908. 
 
 ETILE I. 
 
 ISTo person shall be admitted to practice as an attorney or 
 coimselor in any court of record in this State, without a 
 regular admission to the bar and license to practice granted 
 by the Appellate Division of the Supreme Court. 
 
 RULE II. 
 
 Any person who has been admitted to practice, and has 
 practiced three years as an attorney and counselor in the 
 highest court of law in another State, and any person who 
 has thus practiced in another country, or who, being an 
 American citizen and domiciled in a foreign country, has 
 received such diploma or degree therein, as would have en- 
 titled him if a citizen of such foreign country to practice law 
 in its courts, may, in the discretion of the Appellate Divi- 
 sion of the Supreme Court, be admitted and licensed with- 
 out an examination. But he must possess the other qualifica- 
 tions required by these rules, and must produce a letter of 
 recommendation from one of the judges of the highest court 
 of law of such other State, or country; or furnish other 
 satisfactory evidence of character and qualifications. 
 
 A person who resides in an adjoining State, upon com- 
 pliance with this rule, may, without change of residence, be 
 admitted to practice on sufficient proof that he intends forth- 
 with to open and permanently to maintain an office for the 
 transaction of law business in this State. 
 
 [439] 
 
430 Bae Examinations and Ooueses of Study. 
 
 RULE III. 
 
 All other persons may be admitted and licensed upon pro- 
 ducing and filing with the court the certificate of the State 
 Board of Law Examiners that the applicant has satis- 
 factorily passed the examination prescribed by these rules, 
 and has complied with their provisions ; and upon producing 
 and filing with the court evidence that such applicant is a 
 person of good moral character, which must be shown by 
 the affidavits of two reputable persons of the town or city in 
 which he resides, one of whom must be a practicing attorney 
 of the Supreme Court. Such affidavits must state that the 
 applicant is, to the knowledge of the affiant, a person of good 
 moral character, and must set forth in detail the facts upon 
 which such knowledge is based ; but such affidavits shall not 
 be conclusive and the court may make further examination 
 and inquiry. 
 
 RULE IV. 
 
 To entitle an applicant to an examination as an attorney 
 and counselor, he must prove by his own affidavit, to the 
 satisfaction of the State Board of Law Examiners: 
 
 First. That he is a citizen of the United States, twenty- 
 one years of age, stating his age, and an actual and not a 
 constructive resident of the State, for not less than six 
 months immediately preceding and that he has not been 
 examined for admission to practice and been refused admis- 
 sion and license within three months immediately preceding. 
 
 Second. That he has studied law in the maimer and ac- 
 cording to the conditions hereinafter prescribed for a period 
 of three years, and that he is the same person mentioned in 
 his annexed preliminary papers, except that if the applicant 
 be a graduate of any college or university, his period of study 
 may be two years instead of three, and except also that per- 
 sons who have been admitted as attorneys in the highest court 
 of original jurisdiction of another State or country, and have 
 remained therein as practicing attorneys for at least one year, 
 may be admitted to such examination after a period of law- 
 study of one year within this State. 
 
Bae Examinations and Coubses op Study. 431 
 
 RULE V. 
 
 Applicants for examination shall be deemed to have 
 studied law within the meaning of these rules only when 
 they have complied with the following terms and conditions, 
 viz.: 
 
 1. The provisions for requisite periods of study must be 
 fulfilled by serving a regular clerkship in the ofiice of a prac- 
 ticing attorney of the Supreme Court in this State after the 
 age of eighteen years; or after such age, by satisfactory at- 
 tendance upon and successfully completing the prescribed 
 course of instruction at an incorporated law school, or a law 
 school connected with an incorporated college or university 
 having a law department organized, with competent in- 
 structors and professors, in which instruction as hereinafter 
 provided is regularly given; or after such age, by pursuing 
 such course of study, in part by attendance at such law 
 school, and in part by serving such clerkship. 
 
 2. If the applicant be a graduate of a college or univer- 
 sity, he must have pursued the prescribed course of study 
 after his graduation; and if he be a person admitted to the 
 bar of another State or country, he must have pursued his 
 prescribed period of study after having remained as a prac- 
 ticing attorney in such other State or country for the period 
 of one year. 
 
 3. Applicants who are not graduates of a college, or 
 university, subject to the limitations and requirements here- 
 inafter, in this subdivision, expressed, or members of the 
 bar as above described, before entering upon the clerkship 
 or attendance at a law school herein prescribed shall have 
 passed an examination conducted under the authority and in 
 accordance with the ordinances and rules of the University 
 of the State of l^ew Tork, in English, three years; mathe- 
 matics, two years; Latin, two years; science, one year; his- 
 tory, two years; or in their substantial equivalents as de- 
 fined by the rules of the University, and shall have filed a 
 certificate of such fact, signed by the Commissioner of Edu- 
 cation, with the clerk of the Court of Appeals, whose duty it 
 shall be to return to the person named therein a certified 
 
432' Bae Examinations and Ootteses of Study. 
 
 copy of the same, showing the date ,of such filing. The 
 Eegents may accept as the equivalent of and substitute for 
 the examination in this rule prescribed, either, first, a cer- 
 tificate, properly authenticated, of having successfully com- 
 pleted a full year's course of study in any college, or uni- 
 versity; second, a certificate, properly authenticated, of hav- 
 ing satisfactorily completed a four years' course of study in 
 any institution registered by the Regents as maintaining a 
 satisfactory academic standard; or, third, a Eegents' 
 diploma. 
 
 All graduates of a college or university existing under the 
 government or laws of any foreign country other than those 
 where English is the language of the people, and all appli- 
 cants who apply for law students' certificates upon equiv- 
 alents or substitutes, as above provided, all or any part of 
 which are earned or issued in said foreign countries, shall 
 pass the Regents' examination in second year English. The 
 Regents' certificate above prescribed shall be deemed to take 
 effect as of the date of the completion of the Regents' exami- 
 nation, as the same shall appear upon said certificate. 
 
 4. Satisfactory attendance upon and the successful com- 
 pletion of the prescribed course of instruction at a law school, 
 the school year of which shall consist of not less than 
 thirty-two school weeks, exclusive of vacations, in which not 
 less than twelve hours of attendance upon law lectures or 
 recitations of such prescribed course to be given or con- 
 ducted by regular members of the faculty, are required in 
 each week, shall be deemed a year's attendance under this 
 rule. In computing the period of clerkship a vacation ac- 
 tually taken, not exceeding two months in each year, shall 
 be allowed as a part of such year. 
 
 It shall be the duty of attorneys with whom a clerkship 
 shall be commenced to file a certificate of the same in the 
 office of the clerk of the Court of Appeals, which certificate 
 shall in each case state the date of the beginning of the 
 period of clerkship, and such period shall be deemed to com- 
 mence at the time of such filing, and shall be computed by 
 the calendar ypar. In the case of a qualified law school in 
 which the school year consists of less than an aggregate of 
 
BaE ExAMIWATIOIfS AND CoUESES OF StUDY. 433 
 
 384 hours of attendance upon law lectures or recitations, 
 but where the prescribed course for graduation is three 
 years, a student who graduates therein upon the comple- 
 tion of the prescribed course shall be entitled to be credited 
 with two years' attendance under this rule. The same pe- 
 riod of time shall not be duplicated for different purposes, 
 except that a student attending a law school as herein pro- 
 vided, and who, during the vacations of such school, not 
 exceeding three months in any one year, shall pursue his 
 studies in the office of a practicing attorney, shall be al- 
 lowed to count the time so occupied during such vacation or 
 vacations as part of the clerkship in a law office specified in 
 these rules. 
 
 rifth. The Justices for each Appellate Division may 
 adopt for their several and respective departments such ad- 
 titional special rules for ascertaining the moral and general 
 fitness of applicants as to such Justices may seem proper. 
 
 EULE VI. 
 
 The State Board of Law Examiners, before admitting 
 an applicant to an examination, shall require proof that the 
 preliminary conditions prescribed by these rules have been 
 fulfilled, which proof shall be made as follows, viz.: 
 
 1. That the applicant is a college graduate, by the produc- 
 tion of his diploma or certificate of graduation under the seal 
 of the college. 
 
 2. That he has been admitted to the bar of another State 
 or country, by the production of his license or certificate 
 executed by the proper authorities. 
 
 3. That he has served a regular clerkship in the office of 
 a practicing attorney of the Supreme Court in this State, 
 after the age of eighteen years, by producing and filing with 
 the Board a certified copy of the attorney's certificate as 
 filed in the office of the clerk of the Court of Appeals, and 
 producing and filing an affidavit of the attorney or attorneys 
 with whom such clerkship was served, showing the actual 
 service of such a clerkship, the continuance and end thereof, 
 and that not more than two months' vacation was taken in 
 
 28 
 
434 Bar Examinations and Courses of Study. 
 
 any one year. Both of said affidavits naust be to the effect 
 that during the entire period of each clerkship, except during 
 the stated vacation time, the applicant was actually em- 
 ployed by said attorney as a regular law clerk and student 
 in his law office, and, under his direction and advice, en- 
 gaged in the practical work of the office during the usual 
 business hours of the day. 
 
 4. The time of study allowed in a law school must be 
 proved by the certificate of the teacher or president of the 
 faculty under whose instructions the person has studied, 
 under the seal of the school, if such there be, in addition to 
 the affidavit of the applicant, which must also state the age 
 at which the applicant began his attendance at such law 
 school. Said certificate and affidavit must, also, state the 
 facts required by subdivision four of Rule V; which proof 
 must be satisfactory to the Board of Examiners. 
 
 5. That the applicant has passed the Regents' examination 
 or its equivalent, must be proved by the production of a cer- 
 tified copy of the Regents' certificate filed in the office of the 
 clerk of the Court of Appeals, as hereinbefore provided. 
 
 6. When it satisfactorily appears that any diploma, affi- 
 davit or certificate required to be produced has been lost or 
 destroyed without the fault of the applicant, or has been un- 
 justly refused or withheld, or by the death or absence of the 
 person or officer who should have made it, cannot be obtained, 
 the Board of Law Examiners may accept such other proof 
 of the requisite facts as they shall deem sufficient. 
 
 7. A law student whose clerkship or attendance at a law 
 school has already begun as shown by the records of the 
 Court of Appeals, or of any incorporated law school or law 
 school established in connection with any college or univer- 
 sity, may at his option file or produce instead of the proofs 
 required by these rules, those required by the rules of the 
 (Court of Appeals adopted December 2, 1895. 
 
 RULE vn. 
 
 When the filing of a certificate as required by these rules 
 has been omitted by excusable mistake, or vnthout fault, the 
 court may order such filing as of the proper date. All cer- 
 tificates heretofore issued to law students by the Board of 
 
Bak Examinations and Coueses of Study. 435 
 
 Eegents, and founded upon equivalents instead of an actual 
 examination, are validated and made effectual, and may be 
 accepted as sufficient by the Board of Law Examiners. 
 
 KiTiE vm. 
 
 The State Board of Law Examiners shall be paid as com- 
 pensation, each the sum of $2,000 per year, and, in addition, 
 such further sum as the court may direct, and an annual 
 sum not exceeding $2,500 per year shall be allowed for 
 necessary disbursements of the Board. Every applicant for 
 examination shall pay to the examiners a fee of fifteen dol- 
 lars, which shall be applied upon the compensation and allow- 
 ance above provided, and any surplus thereafter remaining 
 shall be held by the treasurer of the State Board of Law 
 Examiners and deposited in some bank in good standing in 
 the city of Albany to his credit and subject to his draft as 
 such treasurer when approved by the chief judge. The ex- 
 aminations held by such State Board of Examiners may be 
 conducted by oral or written questions and answers, or 
 partly oral and partly written, but shall be as nearly uni- 
 form in the knowledge and capacity which they shall re- 
 quire, as is reasonably possihle. An applicant who has 
 failed to pass one examination cannot again be examined 
 until at least three months after such failure. 
 
 RULE IX. 
 
 These rules shall take effect on July 1, 1907. 
 
 These amendments shall take effect on the first day of 
 June, 1908, but the amendment to subdivision third of Rule 
 V shall not apply to any student whose clerkship or attend- 
 ance at a qualified law school has already begun, or shall 
 have begun prior to June 1, 1908, as shown by the records 
 of the Court of Appeals, or of any incorporated law school, 
 or law school established in connection with any college or 
 university. 
 
Rules of the Court of Appeals for the Admission 
 of Attorneys and Counsellors-at-Law. 
 
 As Amended May 17, 1911. In Effect July 1, 1911. 
 
 RULE I. 
 
 Geneeal Regulation as to Admission. 
 No person shall be admitted to practice as an attorney 
 'or counselor in any court of record of the State except upon 
 an order of the Appellate Division of the Supreme Court 
 admitting him to the bar and licensing him to practice upon 
 compliance with these rules. 
 
 RULE n. 
 
 Admission Without Examination. 
 The following classes of persons may in the discretion of 
 ■the Appellate Division be admitted ^and licensed without ex- 
 amination : 
 
 1. Any person admitted to practice and who has practiced 
 ■five years as a member of the bar in the highest law court in 
 any other state or territory of the American Union or in the 
 District of Columbia. 
 
 2. Any person admitted to practice and who has practiced 
 five years in another country whose jurisprudence is based on 
 the principles of the English common law. 
 
 3. Any American citizen domiciled in a foreign country 
 whose jurisprudence is based on the principles of the EnglisK 
 common law holding a diploma or degree which would en- 
 title him to practice law in the courts of such foreign country 
 if a citizen thereof. 
 
 Any person admitted under this rule must possess the other 
 qualifications required by these rules and must produce a 
 letter of recommendation from one of the judges of the high- 
 est law court of such other state or country, or fumisih oth-er 
 satisfactory evidence of character and qualifications. 
 
 [436] 
 
Bae Examinations and CO'Ubsbs of Study. 437 
 
 An attorney and counselor from another state or foreign 
 jurisdiction may in the discretion of any court of record be 
 admitted pro hac vice to participate in the trial or argument 
 of any cause in which he may be employed. 
 
 ETJLE m. 
 
 Admission on Examination. 
 
 Three classes of persons may be admitted to the bar upon 
 examination : 
 
 1. Persons who are not graduates of a college or university ; 
 
 2. Persons who are graduates of a college or university; 
 and 
 
 3. Persons' who have been admitted as attorneys and have 
 practiced three years in another state or country. 
 
 In each class the applicant must prove by his own affidavit 
 to the satisfaction of the State Board of Law Examiners that 
 he is a citizen of the United States, twenty-one years of age, 
 etating his age, and an actual and not a constructive resident 
 of the State for not less than six months immediately pre^ 
 ceding and that he has not been examined for admission to 
 practice and been refused admission within four months, 
 and that he has studied law in the manner and according to 
 the conditions in these rules prescribed. 
 
 Applicants in the first class (i. e., persons who are not 
 graduates of a college or university) must have studied law 
 for a period of four years. Such an applicant may pursue his 
 course of law study wholly by serving a clerkship in the office 
 of a practicing attorney ; or partly by serving such clerkship, 
 •and partly by attending a law school; but every such appli- 
 cant mTist serve such clerkship for a period of at least one year 
 continuously either before examination by the State Board 
 of Law Examiners or after such examination and prior to ad- 
 mission to the bar. 
 
 Applicants in the second class (i. e., persons who are grad- 
 uates of a college or university) must have studied law for a 
 period of three years. Such an applicant may pursue his 
 oonrse of law study wholly by serving a clerkship in the office 
 
438 Bae ExAMiiTATioisrs and Cotjeses of Study. 
 
 of a practicing attorney ; or wholly by attending a law school ; 
 or partly 'by serving such clerkship and partly by attending a 
 law school. 
 
 Applicants in the third class (i. e., persons who have been 
 admitted as attorneys and have practiced three years in an- 
 other state or county) must have studied law for a period 
 of one year within this State and pursue such course of study 
 either by serving a clerkship or by attendance upon a law 
 school as the applicant may elect. 
 
 Candidates for admission to the bar under tliis rule (i. e., 
 upon examination) may be admitted and licensed upon pro- 
 nducing and filing with the court the certificate of the State 
 Board of Law Examiners that the applicant has satisfactorily 
 passed the examination prescribed by these rules and has com- 
 plied with their provisions, and upon producing and filing 
 with the court, in the case of applicants in the first class (i. e., 
 persons who are not graduates of a college or university), 
 evidence tihat he has served a regular clerkship of one year in 
 this State with an attorney or attorneys in regular practice, 
 either 'before or after having passed such examination. The 
 applicant must also produce and file evidence that he is a 
 person of good moral character which must be shown by the 
 lafiidavits of two reputable persons of the town or city in 
 •which he resides, one of whom must be a practicing attorney 
 of the Supreme Court iSuch affidavits must state th^at the 
 •applicant is, to the knowledge of the affiant, a person of good 
 moral character, and must set forth in detail the facts upon 
 twhich such knowledge is based; but sueh affidavits shall not 
 be conclusive and the court may make further examination 
 and inquiry. 
 
 If the applicant 'be a graduate of a college, or university, 
 he must have pursued the prescribed course of law study after 
 his graduation, and, if he be a person admitted to the bar of 
 another .state or country, he must have pursued his prescribed 
 period of law study after having remained as a practicing at- 
 torney in such other state or country for the period of three 
 years. 
 
Bab Examinations and Oo'Ueses of Study. 439 
 
 UTILE IV. 
 
 Regulations Conceening Peeuminaet Studies. 
 
 All candidates for admission to the bar upon examination, 
 except applicants in the third class mentioned in Kule III 
 (i. e., persons who have been admitted and have practiced 
 three years in another state or country), must have pursued 
 a preliminary course of study evidenced by graduation from 
 a college or university, or by passing Regents' examination 
 or the equivalent, as hereinafter prescribed. 
 
 Applicants who are not graduate of a college, or univer- 
 aity, subject to the limitations and requirements hereinafter, 
 in this subdivision, expressed, or members of the Bar as above 
 described, before entering upon the clerkship or attendance at 
 a law school 'herein prescribed shall have passed an examina- 
 tion conducted under the authority and in accordance with th© 
 ordinances and rules of the University of the State of New 
 York, in English, three years ; mathematics, two years ; Latin, 
 two years ; science, one year ; history, two years ; or in their 
 substantial equivalents as defined by the rules of the Uni- 
 versity, and shall have filed a certificate of such fact, signed 
 by the Commissioner of Education, with the clerk of the 
 Court of Appeals, whose duty it shall be to return to the per- 
 son named therein a certified copy of the same, showing the 
 date of such filing. The Regents may accept as the equivalent 
 of and substitute for the examination in this rule prescribed, 
 either, first, a certificate, properly authenticated, of having 
 successfully completed a full year's course of study in any 
 college, or university ; second, a certificate, properly authenti- 
 cated, of having satisfactorily completed a four years' course 
 of study in any institution registered by the Regents as main- 
 taining a satisfactory academic standard ; or, tiiird, a Regents' 
 'diploma. 
 
 All graduates of a college or university existing under the 
 government or laws of any foreign country other than those 
 where English is the language of th-e people, and all appli- 
 cants who apply for law students' certificates upon equivalents 
 or substitutes, as above provided, ail or any part of which are 
 
440 Bar Examinations and C'oueses of Sttjdt. 
 
 earned or issued in said foreign countrieis, sliall pass the 
 Regents' examination in second year English. The Regents' 
 certificate above prescribed shall be deemed to take effect 
 as of the date of the completion of the Regents' examination, 
 as the same shall appear upon said certificate. 
 
 RULE V. 
 
 Regulations 'Conceening Study at Law Schools. 
 
 The provisions of these rules for ^buij at a law school must 
 ibe fulfilled by good and regular attendance and successfully 
 completing the prescribed course of instruction at an incor- 
 porated law school, or a law school connected witii an incorpo- 
 rated college or university, having a law department organized 
 with competent instructors and professors, in which instruc- 
 tion as hereinafter provided is regularly given. 
 
 Good and regular attendance upon and the successful com- 
 pletion of the prescribed course of instruction at a law school, 
 the school year of which shall consist of not less than thirty- 
 two 'School weeks, exclusive of vacations, in which not less 
 than ten hours of attendance upon law lectures or recitations 
 of such prescribed course, to be given or conducted by regular 
 mem'bers of the faculty, are required in each week, shall be 
 deemed a year's attendance under this rule. 
 
 The same period of time shall not be duplicated for dif- 
 ferent purposes ; except that a student attending a law school, 
 as herein provided, and who, during the vacations of such 
 echool, not exceeding three months in any one year, shall pur- 
 sue his studies in th© office of a practicing attorney, shall be 
 allowed to count the time so occupied during such vacation or 
 vacations as part of the clerkship in a law office specified in 
 these rules. 
 
 RULE VI. 
 
 Regulations Ooncebning Clerkship. 
 The provisions of th'ese rules for studying law by the 
 service of a regular clerkship must be fulfilled .by serving 
 such clerkship in the office of a practicing attorney of the 
 Supreme Court in this State, after the candidate hasi attained 
 the age of eighteen years. ' 
 
Bae Examinations and Cfe'UESES of Study. 441 
 
 If) shall be the duty of attorneys, with whom a clerkship 
 shall be oommeiiced, to file a certificate of the same in the 
 office of the clerk of the Court of Appeals, which certificate 
 shall, in each case, state the date of the beginning of the 
 period of clerkship, and such period shall be deemed to com- 
 mence ati the time of such filing and shall be computed by the 
 calendar year. 
 
 In computing the period of clerkship a vacation actually 
 taken, not exceeding two months in each year, shall be allowed 
 as a part of such year. 
 
 RuiE vn. 
 
 Peoof to Entitle Candidate to Examination. 
 
 The State Board of Law Examiners, before admitting an 
 applicant to an examination, shall require proof that the pre- 
 liminary conditions prescribed by these rules have been ful- 
 filled ; which proof shall be made as follows, viz. : 
 
 First. That the applicant is a college graduate, by the 
 production of his diploma, or certificate of graduation, under 
 the seal of the college. 
 
 Second. That he has been admitted to the bar of another 
 state or country, by the production of his license, or certifi- 
 cate, executed by the proper authorities. 
 
 Third. In all cases where the service of a clerkship is re- 
 quired, that he has served a regular clerkship in the office of a 
 practicing attorney of the Supreme Court in this State, after 
 the age of eighteen years, by producing and filing with the 
 Board a certified copy of tihe attorney's certificate, as filed in 
 the office of the clerk of the Court of Appeals, and producing 
 and filing an affidavit of the attorney or attorneys with whom 
 such clerkship was served, showing the actual service of such 
 a clerkship, the continuance and end thereof, and that not 
 more than two months' vacation was taken in any one year. 
 Both of said affidavits must be to the effect that during ihe 
 entire period of such clerksiip, except during the stated va- 
 cation 'time, the ^applicant was actually employed by said at- 
 torney as a regular law derk and student in bis law office, and 
 
443 Bak Examinations and Coiueses of Studt. 
 
 under his direction and advice, engaged in tlie practical work 
 of tte office during the usual business hours of the day. 
 
 Eourth. The time of study allowed in a law school must 
 he proved by the certificate of the teacher or president of the 
 faculty, under whose instructions the person has studied, 
 under the seal of the school, if sudh there be, in addition to 
 the affidavit of the applicant, which must, also, state the age 
 at which the .applicant began his attendance at such law 
 school. Such certificate and affidavit must, also, show that 
 the law school prescribes the course of instruction contem- 
 plated by these rules, and each shall also contain the state- 
 ment that said applicant took the prescribed course of instruc- 
 tion required at said school for the degree of Bachelor of 
 laws while in attendance thereat, and bona fide took and suc- 
 cessfully ipassed all examinations in all the subjects required 
 for said degree during such period of attendance, in each 
 case specifying the subjects in whic^h siaid applicant took and 
 passed his examinations as aforesaid, which proof must be 
 satisfactory to 'the Board of Examiners. 
 
 Fifth. That the applicant has passed the Kegents' exami- 
 nation, or its equivalent, must be proved by the production of 
 a certified copy of the Regents' certificate filed in the office of 
 the iclerk of the Court of Appeals, as hereinbefore provided. 
 
 Sixth. When it satisfactorily appears that any diploma, 
 affidavit, or certificate, required to be produced has been lost, 
 or destroyed, without the fault of the applicant, or has 'been 
 unjustly refused or withheld, or by the death or absence of the 
 person or officer who should have m'ade it, cannot be obtained, 
 the Board of Law Examiners may accept such other proof of 
 the requisite fac.ts as they shall deem sufficient. 
 
 Seventh. A law student whose clerkship, or attendance 
 at a law school, has already begun, as shovm by the records 
 of the Court of Appeals, or of any incorporated law school, 
 or law school established in connection with any college or 
 university, may, at his option, file or produce, instead of the 
 proofs required by these rules, those required by the Rules of 
 the Court of Appeals in force June 1, 1908. 
 
Bae Examinatiok-s and Co'UEses of Study. 443 
 
 RULE VIII. 
 
 Eegulations Concekning Examination. 
 
 The examination held by such State Board of Examiners 
 may be conducted by oral or written questions and answers, 
 or partly oral and partly written, but shall be as nearly uni- 
 form in the knowledge and capacity which they shall require, 
 as is reasonably possible. Every applicant shall be given and 
 required to pass a satisfactory examination in the canons of 
 ethics adopted by the American Bar Association and by the 
 ISTew York State Bar Association. An applicant who has 
 iailed to pass one examination cannot again be examined, 
 until at least four months after such failure. 
 
 The State Board of Law Examiners shall be paid as com- 
 pensation, each, the sum of two thousand dollars p«r year, 
 and, in addition, such further sum as the court may direct, 
 and an annual sum not exceeding two thousand dollars per 
 year shall be allowed for necessary disbursements of the 
 Board. Every applicant for examination shall pay to the ex- 
 aminers a fee of fifteen dollars, which shall be applied upon 
 the compensation and allowance above provided, and any sur- 
 plus thereafter remaining" shall be held by the -treasurer of the 
 State Board of Law Examiners and deposited in some bank, 
 in good standing, in the city of Albany, to his credit and sub- 
 ject to his draft as such treasurer, when approved by the 
 Chief Judge. 
 
 RULE IX. 
 
 Relief feom Excusable Mistakes. 
 When the filing of a certificate, as required by these rules, 
 Jias been omitted by excusable mistake, or without fault, the 
 ■court may order such filing as of the proper date. 
 
 RULEX. 
 
 Additional Rules by the Appellate Division. 
 
 The Justices of the Appellate Division in each department 
 may adopt for their several and respective departments such 
 additional special rules for ascertaining the moral and gen- 
 eral fitness of applicants as to such Justices may seem proper. 
 
 These rules shall take effect on July 1, 1911. 
 
444 Bajb Examinations and Ooueses of Study. 
 
 SUPREME COtTET RULE. 
 General Rules of Practice, 
 
 RULE I. 
 
 [Applicants for admission as attorneys. — Within ten days 
 after the first day of January in each year, the Appellate 
 Division in each department shall appoint a committee on 
 character and fitness of not less than three for the department 
 or may appoint a coramittee for each judicial district within 
 the department, to whom shall be referred all applications 
 for admission to practice as attorney and counselor at law, 
 such committee to continue in office until their successors are 
 appointed. To the respective committees shall be referred 
 all applications for admission to practice, either upon the 
 certificate of the State Board of Law Examiners or upon 
 motion under Rule 2 of the Eules of the Court of Appeals 
 for the admission of attorneys and counselors at law. The 
 committee shall require the attendance before it or a member 
 thereof of each applicant, with the affidavit of at least two 
 practicing attorneys acquainted with such applicant, resid- 
 ing in the judicial district in which the applicant resides, 
 that he is of such character and general fitness as justifies 
 admission to practice, and the affidavit must set forth in 
 detail the facts upon which the affiant's knowledge of the ap- 
 plicant is based, and it shall be the duty of the committee to 
 examine each applicant and the committee must be satisfied 
 from such examination and other evidence that the applicant 
 shall produce that the applicant has such qualifications as to 
 character and general fitness as in the opinion of thte com- 
 mittee justify his admission to practice, and no person shall 
 be admitted to practice except upon the production of a 
 certificate from the committee to that effect, unless the court 
 otherwise orders. 
 
 ^0 applicant shall be entitled to receive such a certificate 
 who is not able to speak and to write the English language 
 intelligently, nor until he affirmatively establishes to the 
 satisfaction of the committee that he possesses such a char- 
 
Eae Examinations and Ooueses of Study. 445 
 
 acter as justifies his admission to the Bar and qualifies him 
 to perform the duties of an attorney and counselor at law. 
 
 An applicant for admission to practice as an attorney and 
 counselor at law on motion, under the provisions of Rule 2 
 of the Eules of the Court of Appeals for the admission of at- 
 torneys and counselors at law, must present to the court proof 
 that he has been admitted to practice as an attorney and 
 counselor at law in the highest court of law in another State 
 or in a country whose jurisprudence is based upon the priu- 
 ciples of the common law of England ; a certificate, executed 
 by the proper authorities, that he has been duly admitted to 
 practice in such State or country; that he has actually re- 
 mained in said State or country and practiced in such court 
 as attorney and counselor at law for at least three years ; a 
 certificate from a judge of such court that he has been duly 
 admitted to practice and has actually continuously practiced 
 as an attorney and counselor at law for a period of at lease 
 three years after he has been admitted, specifying the name 
 of the place or places in which he has so practiced and that 
 he has a good character as such attorney. Such certificate 
 must be duly certified by the clerk of the court of which the 
 judge is a member and the seal of the court must be attached 
 thereto. He must also prove that he is a citizen of the United 
 States and has been an actual resident of the State of New 
 York or of an adjoining State for at least six months prior 
 to the making of the application, giving the place of Ms 
 Tesidenee by street and number, if such there be, and the 
 length of time he has been such resident. He shall also 
 submit the affidavits of two persons who are residents of the 
 judicial district in which he resides, one of whom must be 
 an attorney and counselor at law, that he is of such character 
 and general fitness as justifies admission to practice, and th« 
 affidavit must set forth in detail the facts upon which the 
 affiant's knowledge of the applicant is based. In all cases the 
 applicant must appear in person before the court on the 
 motion for his admission and also before the committee on 
 character and fitness for the district in which the application 
 is made. When the applicant resides in an adjoining State 
 
44& BaE ExAMINATIOIifS AND OOUESES OF StUDY. 
 
 and a motion is made to admit him to practice in this State 
 without actual residence herein, in addition to the foregoing 
 facts, the applicant must prove to the satisfaction of the court 
 that he has opened and maintains an office in this State for 
 the transaction of law business therein. 
 
 In all cases the applicant for admission must file with the 
 clerk of the Appellate Division of the proper department the 
 papers required for his admission as hereinbefore specified 
 prior to or at the time of the motion for admission to practice. 
 
 RULES OF STATE BOARD OF LAW EXAMINERS. 
 
 (As amended to take effect July 1, 1911.) 
 
 KULE I. 
 
 Each applicant for examination must file with the Secre- 
 tary of the Board at least fifteen days before the day ap- 
 pointed for holding the examination at which he intends to 
 apply, th'e p'reliminary proofs required by the " Rules 
 of the Court of Appeals for the admission of at- 
 torneys and counselors-at-law," from which it must appear 
 afiirmatively and specifically that all the preliminary 
 conditions prescribed by said rules have been fulfilled, 
 and also proof of the residence of the applicant for six 
 months prior to the date of the said examination, giving 
 place, with street and number, if any, which must be made 
 by his own affidavit. Said affidavit must also state that such 
 residence is actual and not constructive. The Board in its 
 discretion may order additional proofs of residence to be 
 filed, and may require an applicant to appear in person be- 
 fore it, or some member thereof, and be examined concerning 
 his qualifications to be admitted to the examinations. The 
 examination fee of $15 must be paid to the Treasurer at the 
 time the application for examination is filed. 
 
 To entitle an applicant to a re-examination, he must 
 notify the Secretary by mail of his desire therefor, at least 
 fifteen days before the examination at which he intends to 
 appear and file with him, at the same time, his own affidavit 
 stating that he is and has been for the six months prior to 
 
Bar Examinations and Coueses of Study. 447 
 
 such examination an actual and not constructive resident of 
 this State, giving the place of such residence, and street and 
 number, if any, 
 
 RULE II. 
 
 Each applicant must be a citizen of the State, of full age ; 
 he may be examined in any department, whether a resident 
 thereof or not, but the fact of his having passed the examina- 
 tion vp'ill be certiiied to the Appellate Division of the 
 Judicial Department in which he has resided for the six 
 months prior to his examination. He must, however, entitle 
 his papers in the department in which he resides. 
 
 Note. — An applicant must appear for examination in the depart- 
 ment in which he entitles his papers, unless permission of the Board 
 otherwise be granted at least fifteen days before the day appointed for 
 holding the examination. 
 
 RULE ni. 
 
 In applying the provisions of Eules III and VII of the 
 Eules of the Court of Appeals, " For the admission of attor- 
 neys and counselors-at-law," the Board will require proof 
 that the college or university of which an applicant claims 
 to be a graduate, maintains a satisfactory standard in re- 
 spect to the course of study completed by him. In case the 
 college or university is registered with the Board of Regents 
 of the State of New York as maintaining such standard, 
 the applicant must submit to the Board, with his diploma 
 or certificate of graduation, the certificate of the said Board 
 of Regents to that effect, which will be accepted by this 
 Board as prima facie evidence of the fact. Such certificate 
 need not be filed in cases where the Board of Regents, by a 
 general certificate, has certified to this Board that the said 
 college or university maintains a satisfactory college stand- 
 ard leading to the degree with which the applicant gradu- 
 ated. In all other cases the applicant must submit with 
 his diploma or certificate of graduation satisfactory proof 
 of the course of study completed by him and of the char- 
 acter of the college or university of which he claims to be a 
 graduate. 
 
448 Bae Examinations and Oo'UEses of Study. 
 
 RULE IV. 
 
 The papers filed by each applicant must be attached to- 
 gether, and there must be indorsed upon them the name of 
 the applicant. The papers must be entitled, " In the matter 
 
 of the application of for admission to the 
 
 Bar." Each applicant must state the beginning and the end 
 of each term spent in a law school, his age when he began 
 his attendance upon the law school, as well as the beginning 
 and the end of each vacation that he has had, 
 
 RULE V. 
 
 An applicant who has been admitted as an attorney in 
 another State or country, and who has remained therein as 
 a practicing attorney for at least three years, may prove the 
 latter fact by his own affidavit, and must present also a cer- 
 tificate from a judge of the court in which he was admitted 
 or from a county judge in said State, certifying that tihe ap- 
 plicant had remained in said State or country as a practicing 
 attorney for said period of three years, after he had been ad- 
 mitted as an attorney therein. The signature of the judge 
 must be certified to by the clerk of the court or by the county 
 clerk under the seal of the court. 
 
 RULE VI. , 
 
 The Board will divide the subjects of examination into 
 two groups, as follows: Group One, Pleading and Practice 
 and Evidence ; Group Two, Substantive Law, viz. : Real Prop- 
 erty, Contracts, Partnership, Negotiable Paper, Principal 
 and Agent, Principal and Surety, Insurance, Bailments, 
 Sales, Criminal Law, Torts, Wills and Administration, 
 Equity, Corporations, Domestic Relations, Legal Etihics and 
 th4 Constitutions of New York State and of th© United 
 States. Eaob applicant will be required to obtain the requi- 
 site standard in both groups and on his entire paper to entitle 
 him. to a certificate from the Board. If he obtains tihe re- 
 quired standard in either group and not on his entire paper 
 he will receive a pass card for the group which he passes and 
 
Bae Examinations and Ooukses op Study. 449 
 
 ■will not be required to be re-examined therein. He will be 
 re-examined in the group in which he failed or on the entire 
 paper if he failed in both groups at any subsequent exami- 
 nation for which he is eligible and for which he gives notice 
 as required by these rules. 
 
 ,' "^;NoTE. — Applicants should file their papers at the earliest possible 
 mo^nent; amendable defects may be discovered, which can be corrected 
 if attended to promptly. 
 
 29 
 
FORMS. 
 
 [451] 
 
FORMS. 
 
 (Printed blank forms, the use of which is urgently reoom" 
 mended, csan be procured from the librajiana of any of the 
 kw sciools ia this State). 
 
 CERTIFICATE OF COMMENCEMENT OF CLERKSHIP. 
 
 (To be filed ia office of Clerk of Court of Appeals. A 
 clerkship commences only from the day it is so filed. Fee 
 $1.00, for filing, and certified copy to be attached to applica- 
 tion papers.) 
 
 I (or we) do hereby certify tiiat I am (or we are) a 
 practicing attomey(s) of the Supreme Court of this State, 
 and maintain an office for tbe transaction of law business at 
 
 , and that , who is eighteen years of 
 
 age, having been bom at , on the , day 
 
 of , has this day commenced the service of a 
 
 regular clerkship in my (our) law office, aforesaid, pursuant 
 to the rules of the Court of Appeals, for admission of at- 
 torneys and counselors-at-law. 
 
 Dated , 190.. 
 
 (Signed) 
 
 Attorney (s) at Lww. 
 
 AFFIDAVITS TO OBTAIN ORDER FILING CERTIFICATE OF 
 COMMENCEMENT OF CLERKSHIP NUNC PRO TUNC. 
 
 Note. — The rules of the Court of Appeals (Rule VI) 
 make it the duty of attorneys with whom a clerkship shall 
 be commenced to file a certificate of the same in the ofiSce 
 of the Clerk of the Court of Appeals, which certafieate shall, 
 in each case, state the date of the beginning of the period 
 of clerkship and such period shall be deemed to conunence 
 at the time of such filing, and ^all be compi^d by t<be 
 calendar year. 
 
 The rules further provide (Rule IX) that when the filing 
 
 of a certificate as required by the rules has been omitted 
 
 by excusable mistake or without fault, the court may order 
 
 [452] 
 
Bab Examinations and Couesbs of Stitdt. 4:93 
 
 Buch filing as of the proper date. A certificate of com- 
 mencement of clerkship may be filed nunc pro tunc, upon 
 the afiidavit of the attorney showing that its filing had been 
 omitted by excusable mistake or without fault, supplemented 
 by the affidavit of the law clerk that he was duly qualified 
 under the rules to begin the service of a clerkship at the 
 date upon which it is sought to have the certificate so filed. 
 The attorney prepares and signs a certificate of commence- 
 ment of clerkship and dates it as of the day when the clerk- 
 ship actually began, which certificate he procures to be filed 
 nunc pro tunc as of that date. The motion is made ex parte 
 by mailing the papers to the clerk. 
 
 ATTORNEY'S AFFIDAVIT. 
 EST COURT OF APPEALS, STATE OF NEW YOKK. 
 
 In the Matter of the Application 
 of 
 
 for Admission to the Bar. 
 
 STATE OF NEW YORK, ) 
 
 V 88 ' 
 
 CiTT Ajf D County of ) 
 
 ,. ., being duly sworn, deposes and 
 
 says, that he is and was at and during all the times herein- 
 after mentioned a practicing attorney of the Supreme Court 
 of this State, maintaining a law office for the transaction of 
 
 law business in the of in this State; 
 
 that , the applicant above named, after the 
 
 age of eighteee years commenced the service of a regular 
 clerkship in deponent's law office aforesaid, beginning on 
 
 the day of , and that he actually and 
 
 bona fide continued to serve his regular clerkship, as afore- 
 said, from tiat date until on or about the ...... day of 
 
 That during the entire period of such clerkship, except 
 during the stated vacation time the said applicant was actu- 
 ally employed by (me) as a regular law clerk and student 
 
^5^ Bae Examinations and Coueses of Study. 
 
 in (my) law office and under (my) direction and advice 
 engaged in the practical work of the office during the usual 
 business hours of the day. 
 
 That deponent did not, at the time when said clerkship 
 was commenced, as aforesaid, file or cause to be filed a 
 certificate of the commencement thereof in the office of the 
 Clerk of the Court of Appeals as required by the rules of 
 said court, for the following reasons: {Here state some act 
 or fact of inadvertence or excusable mistake tvhy the cer- 
 tificate ivas not so filed.) 
 
 Deponent asks that an order be entered filing the annexed 
 certificate of commencement of said clerkship nunc pro tunc 
 
 as of the day of , 19 . . 
 
 Sworn to before me, this .... 
 day of ,190. . 
 
 AFFIDAVIT OF LAW CLERK. 
 
 In the Matter of the Application 
 of 
 
 For Admission to the Bar. 
 
 STATE OF NEW TOEK, . 
 City and County of j-s •• 
 
 , being duly sworn, deposes and 
 
 says, that he is the applicant above named ; that he is a citi- 
 zen of the United States, and a resident of the State of 
 New York and resides at , in this State. 
 
 That he is a graduate of a college (or, university), to wit, 
 of of ; that he graduated there- 
 from on the day of , 190 . . with the 
 
 degree of (or) 
 
 Deponent further states that he has had a Law Students' 
 Certificate No , signed by the Commissioner of Edu- 
 cation of the State of New York, as required by the rules 
 of the Court of Appeals, heretofore issued to him, and that 
 
Bak Examinations and Coueses of Study. 455 
 
 the same was filed in the office of the Clerk of the Court of 
 Appeals on the day of 
 
 Deponent further states that after the age of eighteen 
 years he began the service of a regular clerkship in the law 
 ofBce of , a practicing attorney of the Su- 
 preme Court at , on the day of 
 
 , 190. ., and that he continued the service of 
 
 said clerkship from that date until on or about the 
 
 day of 
 
 That during the entire period of such clerkship, except 
 during the stated vacation time deponent was actually em- 
 ployed by said attorney (s) as a regular law clerk and 
 student in (his) law office, and under (his) direction and 
 advice, engaged in the practical work of the office during 
 the usual business hours of the day. 
 
 That deponent did not file or cause to be filed at the time 
 he commenced the service of his clerkship, as aforesaid, a 
 certificate of the commencement thereof as required by the 
 rules of the Court of Appeals. 
 
 Sworn to before me, this .... 
 day of , 190. . 
 
 ORDER FILING CERTIFICATE OF COMMENCEMENT OF 
 CLERKSHIP NUNC PRO TUNC. 
 
 STATE OF NEW YORK, IN COURT OE APPEALS. 
 
 At a Court of Appeals for the State of l^ew York, held 
 
 at the Capitol in the city of Albany, on the day 
 
 of , A. D. 19.. 
 
 Present — Hon. Edgae M. Cullen, Chief Judge, pre- 
 siding. 
 
 In the Matter of the Application 
 of 
 
 For Admission to the Bar. 
 
 On reading and filing the certificate and the affidavit of 
 , an attorney and counselor-at-law, veri- 
 
456 Bab Examinations and Ooueses of Study. 
 
 fied the day of , 190. ., showing the 
 
 time of commencement with said of a regular 
 
 clerkship by the said ; and the affidavit 
 
 of verified the day of 
 
 , 190 . . On motion of > 
 
 attorney for said applicant, 
 
 It is ordered that the certificate of the commencement 
 
 of clerkship of the said , he and thj 
 
 same is hereby filed nunc pro tunc as of the day of 
 
 ,'l9-- 
 
 Deputy Clerk. 
 [l. S.J 
 
 APPLICANT'S AFFIDAVIT. 
 
 (To he filed with the Secretary of the State Board of Law 
 Examiners, when applicant applies for examination.) 
 
 TITLE. 
 
 IE THE APPELLATE DIVISION" OF THE SU- 
 PEEME COURT, FOE THE JUDICIAL DE- 
 PARTMENT. 
 
 In the Matter of the Application 
 of 
 
 For Admission to the Bar. 
 
 GENERAL CLAUSE. 
 
 STATE OF NEW YORK, ] 
 
 County of , Vss.: 
 
 City of , J 
 
 , being duly sworn, deposes and says : 
 
 That he is a citizen of the United States and a resident of 
 
 the State of New York, and resides at No , in the 
 
 City of , County of in the Judicial 
 
 Department; that he has resided in said Department, as 
 
Bab Examinations and Coubses of Study. 457 
 
 aforesaid, for the six months past, and that sueh residence 
 is and was during the said six months actual and not con- 
 structive. 
 
 That he is years of age, and has not been examined 
 
 for admission to practice and been refused admission and 
 license within the four months immediately preceding this 
 application. 
 
 That he is the applicant herein named and the person 
 mentioned in the annexed proofs that the preliminary condi- 
 tions prescribed by the rules of the Court of Appeals for the 
 admission of attorneys and counselors-at-law have been ful- 
 filled, and that he has studied law in the manner and accord- 
 ing to the conditions of said rules. 
 
 FOR COLLEGE GRADUATES. 
 
 Deponent further states that he is a graduate of a college 
 
 (or university), to wit, of of That 
 
 he graduated therefrom on the day of , 
 
 190. ., with the degree of , as will more fully appear 
 
 by deponent's diploma therefrom, under the seal of said 
 college (or xmiversity) herewith produced (or certificate of 
 graduation under the seal of said college (or university) 
 (hereto annexed), and marked Exhibit "...." 
 
 Deponent also annexes hereto, marked Exhibit " ," 
 
 proof that said college (or university) is registered 
 
 with the University of the State of 'New York as maintain- 
 ing a satisfactory college standing in the course leading to 
 
 the degree of , with which deponent graduated, as 
 
 aforesaid; (or) 
 
 Deponent further alleges on information and belief that 
 
 said college (or university) is registered with 
 
 the N"ew York State Board of Law Examiners by the Uni- 
 versity of the State of N'ew York, as maintaining a satis- 
 factory college standard in the course leading to the degree 
 
 of , with which deponent graduated therefrom 
 
 as aforesaid, to entitle deponent, as the holder of said degree, 
 
 to be admitted to the bar examinations after years of 
 
 law study. 
 
458 Bae Examinations and Coueses of Study. 
 
 law students certificate. 
 
 Deponent further states that he has passed an examina- 
 tion conducted under the authority and in accordance with 
 the ordinances and rules of the University of the State of 
 New York, and has had issued to him a Law Students 
 
 Certificate, 'So , signed by the Commissioner of 
 
 Education, as required by the rules of the Court of Appeals. 
 That deponent completed his said Eegents examinations as 
 of the date appearing upon said certificate. 
 
 That on the day of , 190. ., deponent filed 
 
 his Law Students Certificate, as aforesaid, in the ofiice of 
 the Clerk of the Court of Appeals. That hereto annexed is 
 a certified copy of the same and proof of filing, as aforesaid, 
 marked Exhibit " " 
 
 LAW STUDENTS CERTIFICATE ON EQUIVALENTS. 
 
 Deponent further states that on the day of , 
 
 190. ., the University of the State of Xew York duly issued 
 
 to deponent a Law Students Certificate, So , signed 
 
 by the Commissioner of Education, as the equivalent of, and 
 substitute for the Eegents examinations prescribed by the 
 rules of the Court of Appeals. That deponent completed 
 the course of study on which said Law Student Certificate 
 was issued on the date appearing upon said certificate. That 
 
 on the day of , he filed his said Law Students 
 
 Certificate, as aforesaid, in the office of the Clerk of the 
 Court of Appeals. That hereto annexed is a certified copy 
 of the same and proof of filing, as aforesaid, marked Ex- 
 hibit " " 
 
 CLERKSHIP, 
 
 Deponent further states that on the day of , 
 
 190. ., he commenced the service of a regular clerkship in 
 the law office of , a practicing attorney of the Su- 
 preme Court of the State of Sew York, at in this 
 
 State. That at that time he was over the age of eighteen 
 
 years, and that said on the day of , 
 
 190. ., filed or caused to be filed a certificate of the com- 
 mencement of said clerkship in the office of the Clerk of th« 
 Court of Appeals. That a certified copy of said certificats 
 of commencement of clerkship and proof of filing in the 
 office of the Clerk of the Court of Appeals are hereto an- 
 nexed and marlvpd Exhibit " " 
 
Bae Examinations and Coueses of Study. ^59 
 
 That deponent served a regular clerkship in the law office 
 
 of , a practicing attorney of the Supremo 
 
 Court, at in this State, after the age of eighteen 
 
 years, commencing on the day of , 190. ., 
 
 and ending on the day of , 190 . . 
 
 That during the sen'ice of said clerkship deponent did not 
 take more than two months vacation in any one year, the 
 
 vacations taken hy deponent hegan as follows, on the 
 
 day of , 190 . . , and ended on the day of 
 
 190. ., and began on the day of , 190. ., 
 
 and ended on the day of , 190 . . 
 
 Deponent further states, that during the entire period of 
 such clerkship, except during the stated vacation time he 
 was actually employed hj said attorney (s) as a regular 
 law clerk and student in his (their) law office (s) and under 
 his (their) direction and advice, engaged in the practical 
 work of the office during the usual business hours of the day. 
 
 That hereto annexed is the affidavit of the attorney with 
 whom such clerkship was served, showing the actual service 
 of such clerkship, the continuance and end thereof, and the 
 beginning and end of each vacation taken by deponent dur- 
 ing said clerkship. 
 
 WHERE CERTIFICATE OF COMMENCEMENT OF CLERKSHIP IS 
 FILED NUNC PRO TUNC. 
 
 That on the day of , the Court of Appeals 
 
 duly granted an order filing deponent's certificate of com- 
 mencement of clerkship, as aforesaid, in the office of the 
 Clerk of the Court of Appeals, nunc pro tunc as of the .... 
 
 day of , 190 . . ; that hereto annexed is a certified 
 
 copy of said order and proof of the entry thereof in the 
 office of the Clerk of the Court of Appeals marked Exhibic 
 
 LAW SCHOOL ATTENDANCE, 
 
 (Prior to July 1, 1907.) 
 Deponent further alleges that he was in regular attend- 
 ance upon the law lectures and exercises of the 
 
 Law School, situated at during two school 
 
 three 
 
*60 Bae Examinations and Coueses of Study. 
 
 years of not less than eight months each, to wit, from 
 
 the day of , in the year 190 . ., to the 
 
 day of , in the year 190. ., and from the day 
 
 of , 190.., to the day of , 190.., and 
 
 from the day of , 190 . . to the day 
 
 of , 190... 
 
 Deponent further alleges that he was of the age of 
 
 years when he commenced his attendance upon the sessions 
 of said school as above mentioned. The certificate of said 
 
 law school given under its seal and signed by the of 
 
 the Faculty (or by the of the said school), as proof 
 
 of such time of study and attendance upon said law school 
 is hereto annexed and marked Exhibit " " 
 
 LAW SCHOOL ATTENDAHCE. 
 
 (Subsequent to July 1, 1907.) 
 
 Deponent further alleges that he was in good and regular 
 attendance upon and successfully completed the prescribed 
 
 course of instruction at the Law School situate 
 
 at the , during the following stated periods, to 
 
 wit.: 
 
 From 190.., to 190.. 
 
 From 190. ., to 190. . 
 
 From 190.., to 190.. 
 
 (and received the degree of ) or (is a graduate 
 
 of said Law School.*) 
 
 Deponent further states, that the school year of said Law 
 
 school begins on the day of , and ends 
 
 on the day of , next succeeding (and 
 
 consists of not less than thirty-two school weeks, exclusive of 
 vacations, in which not less than three hundred and eighty- 
 four hours of attendance upon law lectures or recitations of 
 the prescribed course of instruction of said law school, which 
 are given or conducted by regular members of the faculty, 
 are required of each student ),t as will more fully appear 
 
 * Erase, if the law school degree was not received or applicant 
 did not graduate. 
 
 t If the applicant matriculated at the law school prior to July 1, 1907, 
 he may erase, if necessary, that portion of the affidavit referring to 
 the length of the school year and to the numher of hours of attend- 
 ance upon law lectures and recitations required, contained within the 
 brackets. 
 
Bak Examinations and Coueses of Study. 461 
 
 by the certificate of said law school given under its seal and 
 
 signed by the o£ the Faculty (or by the 
 
 of said school) hereto annexed and marked 
 
 Exhibit "...." 
 
 Deponent further alleges that he was of the age of 
 
 years when he commenced his attendance upon the sessions 
 of said law school as aforesaid. 
 
 LAW SCHOOL ATTENDANCE. 
 
 (Eules in effect July 1, 1911.) 
 
 Deponent) further alleges that he was in good and regular 
 attendance upon and took and successfully completed the pre- 
 scribed course of instruction required at the 
 
 Law School situate in the for the degree of 
 
 Bachelor of Laws, during the following stated periods, to wit : 
 
 Erom 191. ., to 191. . 
 
 From 191. ., to 191. . 
 
 Erom 191. ., to 191. . 
 
 (and received the degree of Bachelor of Laws of said law 
 school.*) 
 
 Deponent further states that the above named Law School 
 prescribes that its students shall take the course of instruction 
 required at said Law School for the degree of Bachelor of 
 Laws granted by it. 
 
 Deponent further states that he bona fide took and success- 
 fully passed all examinations in all the subjects required for 
 the granting of the degree of Bachelor of Laws at siaid Law 
 School given during such periods of attendance, he having 
 bona fide taken and successfully passed examiniations in the 
 following subjects required for the granting of the said de- 
 gree of Bachelor of Laws at said Law School as aforesaid, toi 
 wit.: 
 
 * Erase if the degree of Bachelor of Laws was not received. 
 
462 Bar Examinations and Coukses of Study. 
 
 -First Year 
 
 Second Year 
 
 Third Year 
 
 Deponent further states, that the school year of said Law 
 
 School begins on the .... day of and ends on 
 
 the .... of next ensuing, and consists of not 
 
 less than thirty-two school weeks, exclusive of vacations, in 
 which not less than ten hours of attendance upon law lectures 
 or recitations of such prescribed course to be be given or con- 
 ducted by regular members of the faculty are required in each 
 week, as will more fully appear by the certificate of said Law 
 
 School given under its seal and signed by the . . . ., of 
 
 the Faculty (or by the of said school) hereto 
 
 annexed and marked Exhibit " .... " 
 
 Deponent further alleges that he was of the age of .... 
 years when he began his attendance at said Law School. 
 
 FOR ATTORNEY OF ANOTHER STATE. 
 
 (Eule III. Eules, Court of Appeals. Rule V. State 
 Board of Law Examiners.) 
 
 Deponent further states that he was duly admitted as an 
 
 attorney in the Court of the State of ., 
 
 on the . ., day of , 190. ., and that he re- 
 mained in said State as a practicing attorney for the period 
 
 of three years, viz., from the ....... day of to the 
 
 , day of , at , in said State, where he 
 
 remained and maintained an office for the transaction of law 
 business in that State. That 'hereto annexed is deponent's 
 license or certificate of admission to the bar of said State of 
 ...,,...., executed by the proper authorities, marked Ex- 
 hibit "....," and a certificate from the Honorable , 
 
 a Judge of the Court in which deponent was ^admitted to 
 practice as aforesaid (or from a County Judge of siaid State), 
 certifying that deponent had remained in said State of 
 
Bar Examinations and Coukses of STirDY. 463 
 
 . .i at aforesaid as a practicing attorney for 
 
 said period of three years after li© 'had l)een admitted as a 
 practicing attorney therein. 
 
 That the signature of the said Judge is certified to by the 
 Clerk of the Court (or by the County Clerk) under the seal 
 of the Court, as appears by this certificate thereof hereto an- 
 nexed marked Ebhibit "...." 
 
 Sworn to before me, this . 
 day of ,190. 
 
 ATTORNEY'S AFFIDAVIT. 
 
 (To accompany applicant's proofs, when necessary.) 
 
 m THE APPELLATE DIVISION OF THE SU- 
 PREME COURT, FOR THE JUDICIAL 
 
 DEPARTMENT. 
 
 Id the Matter of the Application 
 
 of 
 For Admission to the Bar. 
 
 STATE OF NEW YORK, ^ 
 
 County of rss.: 
 
 City of , J 
 
 , being duly sworn, deposes and aa.j&: 
 
 That he is and was at and during all the times herein men- 
 tioned a practicing attorney of the 'Supreme Court of this 
 State, maintaining a law office for the transaction of law 
 
 business in the ......... of in this State. 
 
 That , the applicant above-named, after 
 
 the age of eighteen years, served a regular clerkship in de- 
 ponent's law office, as aforesaid, beginning on the 
 
464 Bab Examiitatioits and Coueses of Study. 
 
 day of . ., , 190. ., and ending on the day of 
 
 ., 190... 
 
 'That during the service of said clerkship not more than 
 'two months vacation was taken in any one year by the said 
 .......... the beginning aad end of each vacation taken by 
 
 him being as follows, viz., from the day of 
 
 in the year 190. . to the day of ,. • in the 
 
 year 190. .. 
 
 Deponent further states, that during the entire period 
 of such clerkship, except during the stated vacation time 
 said applicant was actually employed by deponent (or de- 
 ponents said form) as a regular law clerk and student in his 
 (their) law office (s) and under his (their) direction and 
 advice, engaged in the practical work of the office during the 
 usual business hours of the day. 
 
 Sworn to before me, this . 
 day of , 190... 
 
 CERTIFICATE OF LAW SCHOOL. 
 
 (For time subsequent to July 1, 1907.) 
 Name of Law School Here. 
 
 This is to certify that of 
 
 ■was in good and regular attendance upon and successfully 
 completed the prescribed course of instruction at the above 
 named Law School during the following stated periods, to 
 wit: 
 
 from . ., 190. . to 190 . 
 
 from 190. . to . .- 190 . 
 
 from 190. .to , 190. 
 
 and that he received from said Law School the degree of 
 
 (or) ,. . . . he was duly graduated from 
 
 said Law School.* 
 
 * Erase, if the law school degree was not received or applicant did 
 not graduate. 
 
Bar Examinations and Coueses of Studt. 465 
 
 It is further certified that the school year of said Law 
 
 Schxx)! hegins on the . day of . . . . . .■. . and ends 
 
 on the day of ,. . next succeeding in each 
 
 year, (and consists of not less than thirty-two school weeks, 
 exclusive of vacations, in which not less than three hundred 
 and eighty-four hours of attendance upon law leetures or 
 recitations of the prescribed course of instruction of said 
 Law School, which are given or conducted by regular mem- 
 ibers of the Faculty, are required of each student).* 
 
 Witness my hand and seal of said Law School at 
 
 this day of 190. .. 
 
 (seal) 
 
 Dean, 
 (or other officer or teacher authorized to sign.) 
 
 CERTIFICATE OF LAW SCHOOL. 
 
 (Rules in effect July 1, 1911.) 
 Name of Law School Here. 
 
 This is to certify that of . ., 
 
 was in good and regular attendance upon and took and suc- 
 cessfully completed the prescribed course of instruction re- 
 quired at the above named Law School for the degree of 
 Bachelor of Laws, during the following stated periods, to 
 wit.: 
 
 from 191. . to ., 191. 
 
 from 191.. to ., 191. 
 
 from 191.. to , 191. 
 
 (and that he received the degree of Bachelor of Laws at said 
 school).! 
 
 It is further certified that the above Law School prescribes 
 that its students shall take the course of instruction required 
 
 * If the student marticulated at the law school prior to July 1, 1907, 
 and the school has not yet conformed to the above requirements, as to 
 such students, that portion of the last paragraph of the certificate, in- 
 cluded within the brackets, may he omitted. 
 
 t Erase, if degree was not received. 
 
 30 
 
466 Bae Examinations and Courses of Study. 
 
 at said scJbool for the degree of Bachelor of Laws granted 
 by it. 
 
 It is further certified that the above-named 
 
 bona fide took and successfully passed all examinations in all 
 subjects required for the granting of the degree of Bachelor 
 of Laws by said Law School which were given during the 
 aforesaid periods of attendance ; the said hav- 
 ing bona fide taken and successfully passed examinations in 
 the following subjects required for the granting of the degree 
 of Bachelor of Laws at said Law School, to wit : 
 
 First year 
 
 Second year . 
 
 Third year , 
 
 It is further certified th'at the school year of said law school 
 
 begins on the day of ........ and ends on the 
 
 day of . ., , next ensuing, 'and consists of not less than 
 
 thirty-tiwo school weeks, exclusive of vacations, in which not 
 less than ten hours of attendance upon law lectures or recita- 
 tions of such prescribed course, to be given or conducted by 
 regular members of the faculty, are required in each week. 
 
 Witness my hand and the seal of the said Law School at 
 . , this .... day of , 191 . . . 
 
 (seal) , 
 
 Dean. 
 
 (or other officer or teacher authorized to sign.) 
 
Bae Examinations and Couesbs O'F Study. 467 
 
 AFFIDAVIT OF GOOD MORAL CHARACTER. 
 
 nr THE APPELLATE DIVISION' OF THE SU- 
 PEEME 'COURT FOE THE ...\^..... JUDICIAL 
 DEPAETMENT. 
 
 In tlie Matter of the Application 
 of 
 
 For Admission to the Bar. 
 
 STATE OF ISTEW YOEK, ^ 
 
 CouNTT OF . y. , Vss.: 
 
 City op . .h , J 
 
 . . .'^. . J . "C.'' being duly sworn deposes and says that he 
 is a practicing attorney of the Supreme Court of t)he State of 
 IsTew York, ^and resides at ...'.... .^ . an!d that he is ac- 
 quainted with and has known . . . . ."T: . . ., the ahove-named 
 applicant, who also resides at . .*.' in the same ju- 
 dicial district 'with deponent, for years last past, 
 
 and th'at 'h© is to the knowledge of deponent a person of such 
 good character and general fitness as justifies his admission 
 to practice as an attorney and counselor at law, in the Courts 
 of EecoT'd in this State. 
 
 ^ The facts upon which my knowledge of said applicant, as 
 aforesaid, is based are as follows : (State in detail the facts 
 and the acquaintance with the applicant which justifies the 
 opinion expressed.) 
 
 (Signed.) 
 
 Sworn to before me, this .... 
 day of ,191... 
 
468 Bae Examinations and Coukses of Study. 
 
 AFFIDAVIT FOR EE-EXAMINATIOK. 
 
 IN THE APPELLATE DIVISION OF THE SUPREME 
 COUET OF THE STATE OF NEW YORK, FOR 
 THE . .r. JUDICIAL DEPARTMENT. 
 
 In the Matter of the Application 
 
 °* 
 ■%-.., 
 
 For Admission to the Bar. 
 
 STATE OF NEW YORK, ^ 
 
 County of , >ss.: 
 
 City of , J 
 
 ..'•.'.: , 'being duly sworn, deposes 'and says, mat he 
 
 is the applicant above named. That be is and has 'been for 
 the six months immediately prior to the date of the examina- 
 tion for admission to the Bar for which he now makes ap- 
 plication an actual and not a constiructive resident of this 
 ^tate,. having |. actually residgd for said mx months at No. 
 
 J'^^.'''^..'<V-.r.*:^^/in the ..'.'.'.'. oi .^r-r. , in the 
 
 .^^i'.'-.''A . . Judicial Department. 
 
 Deponent further says, that he has not been examined for 
 admission to practice and 'been refused admission and license 
 within four months immediately preceding the date of said 
 examination. 
 
 Sworn to before me, this , 
 
 day of .Of^.r.,19'1.'-^. 
 
Bab Examinations and Cotteses of Sxudt, 469 
 
 REGISTRATION OATH. 
 
 (To be Filed in the Office of the Clerk of the Court of Ap- 
 peals After Admi'ssJon and Before practicing. Fee, 
 25 cents. 
 
 IN COURT OF APPEALS — STATE OF NEW YOEK, 
 
 In the Matter of the Registratioii 
 of 
 
 As an Attorney and Counselor-at-Law. 
 
 STATE OF NEW YOEK, | 
 
 County ov , > 
 
 City of , ) 
 
 I, , being duly sworn, afflnned,{a) do deposs 
 
 and say: 
 
 That I am a natural bom citizen of the United States, natuT' 
 alized citizen of the United States, having been duly natur- 
 alized at a Term of the Court of , 
 
 held at , in the City of , on or about 
 
 the day of , 18 . . ; that I now reside at No. 
 
 Street, in the of , New 
 
 York, in the State of , and have an office for the 
 
 transaction of law business at No , in the 
 
 of mthin this State(b). 
 
 That I was duly and r^ularly licensed and admitted to 
 practice as an attorney and connselor-at-law, an attorney-at- 
 
 law, in the Courts of Record of this State, at the 
 
 Term, 19 . . , of the General Term, Appellate Division, of 
 the Supreme Court of this State, or(c). 
 
■* ' ^ Bae Examinations and Coueses of Studt. 
 
 held at tlie of , in this State, and 
 
 that I took the Constitutional oath of oflB.ce (d). 
 
 Su'bscribed and sworn, affirmed before me, 
 this day of , 189. . 
 
 (a) Erase words in italics, if not necessary. 
 
 (6) Section 470, Judiciary Law, Law 1909, chap. 35. 
 
 (c) "Or other Court, as the case may be." Persons who were so- 
 licitors in chancery or attorneys of or in the Supreme Court on the 
 first Monday of July, 1847, Vide Judiciary Law, sec. 468. 
 
 (d) Oath must be "substantially" in the above form, the blanks 
 being properly filled {id). 
 
 As to the requirement as to stating that the aflBant took the consti- 
 tutional oath, vide sec. 468, same act. 
 
Bae Examinatioks and Courses of Study. 471 
 
 REGISTERED COLLEGES. 
 
 Graduates of the colleges or universities hereinafter 
 named, with any of the degrees mentioned, need not attach 
 to their application papers, Eegents' college registration 
 certificates. All others must as heretofore. 
 
 Adelphi College, Brooklyn, N. Y. : B. A. 
 
 Alfred University, Alfred, N. Y. : B. A., Ph. B., B. S. 
 
 Amherst College, Amherst, Mass. : B. A., B. S. 
 
 Barnard College, New York, N. Y. : B. A., B, S. 
 
 Bates College, Lewiston, Me. : B. A. 
 
 Bowdoin College, Brunswick, Me.: B. A. 
 
 Brovyn University, Providence, K. I. : B. A., Ph. B. 
 
 Bryn Mavs^r College, Bym Mawr, Pa.: B. A. 
 
 Bucknell University, Lewisburg, Pa. : B. A., Ph. B., B. S. 
 
 Canisius College, Buffalo, 'H. Y. : B. A. 
 
 Catholic University of America, Washington, D. G. : B. A. 
 
 Central Wesleyan College, Warrentown, Mo.: B. A., Ph. 
 B., B. L., B. S. 
 
 Clark College, Worcester, Mass. : B. A. 
 
 Oolgate University, Hamilton, IST. Y. : B. A., B. S. 
 
 College of St. Elizabeth, Convent Station, N. J. : B. A. 
 
 College of St. Francis Xavier, New York: B. A. 
 
 CoUege of St. Thomas of Villanova, Pa. : B. A. 
 
 College of the City of New York, New York: B. A., B. S. 
 
 Columbia University, New York: B. A., B. S., E. M., 
 Met. E., C. E., B. E., Mech. E., B. S. in Arch. 
 
 Cornell University, Ithaca, N. Y. : B. A., C. E., M. E., 
 B. Arch. 
 
 Dalhousie College and University, Halifax, N. S. : B. A., 
 B. S. 
 
 Dartmouth College, Hanover, N. H. : B. A., B. S., C. E. 
 
 Davidson College, Davidson, N. C. : B. A., B. S. 
 
 Delaware College, Newark, Del. : B. A. 
 
 Denison University, Granville, O. : B. A., Ph. B., B. S. 
 
 Dickinson College, Carlisle, Pa. : B. A., Ph. B., B. S, 
 
 Drake University, Des Moines, la.: B. A., Ph. B., B. S, 
 
 Duquesne College, Pittsburg, Pa.: B. A. 
 
 Earlham College, Kichmond, Ind. : B. A., B. S. 
 
^'^2 Bab Examinations and Coueses of Study. 
 
 Elizabeth College, Charlotte, K C. : B. A. 
 
 Elmira College, Elmira, N. Y. : B. A., B. S. 
 
 Eordliam University, New York: B. A., B. S. 
 
 Franklin College, Franklin, Ind. : B, A., Ph. B., B. S. 
 
 Georgetown University, Washington, D. C. : B, A. 
 
 Greenville College, Greenville, 111. : B. A., Ph. B. 
 
 Hamilton College, Clinton, IST. Y. : B. A., Ph. B., B. S. 
 
 Harvard University, Cambridge, Mass. : B. A. 
 
 Haverford College, Haverford, Pa. : B. A., B. S. 
 
 Hobart College, Geneva, N. Y. : B. A., Ph. B., B, S. 
 
 Holy Cross College, Worcester, Mass. : B. A. 
 
 Hope College, Holland, Mich. : B. A. 
 
 Howard University, Washington, D. C. : B. A. 
 
 James Millikin University, Decatur, 111. : B. A. 
 
 Johns Hopkins University, Baltimore, Md. : B. A. 
 
 Kenyon College, Gambier, 0. : B. A., Ph. B., B. S. 
 
 Keuka College, Keuka, 1^. Y. : B. A., B. S. 
 
 Eiox College, Galesburg, 111. : B. A., B. L., B. S. 
 
 Layf ayette College, Easton, Pa. : B. A. Ph. B., B. S. 
 
 Lake Erie College, Painesville, 0. : B. A., B. L., B. S. 
 
 Lawrence Scientific School, Cambridge, Mass. : B. S. 
 
 Lehigh University, South Bethlehem, Pa. : B. A. 
 
 Leland Stanford Jr. University, Stanford University, 
 Cal. : B. A. 
 
 Louisiana State University, Baton Eouge, La. : B. A., Lat. 
 eci. or Lit. 
 
 Loyola College, Baltimore, Md. : B. A. 
 
 McMaster University, Toronto, Ont., Can. : B. A. 
 
 Manhattan College, ISTew York: B. A. B. S. in C. E., 
 Arch., Naval Arch. 
 
 Massachusetts Institute of Technology, Boston, Mass. : 
 
 B. S. 
 
 Miami University, Oxford, 0. : B. A. 
 
 Mount St. Mary's College, Emmitsburg, Md.: B. A. 
 
 Muskingum College, New Concord, O. : B. A., B. S. 
 
 New Windsor College, New "Windsor, Ind. : B. A., B. S. 
 
 New York University, New York: B. A., B. S., B, S. in 
 C. E., M. E., Chem. E. 
 
 Niagara University, Niagara, N. Y. : B. A. 
 
Bae Examinations and Couesijs of Study. '^'^ 
 
 JSTorthwestern College, Naperville, 111.: B. A., Ph. B., 
 E. A. 
 
 Norwegian Luther College, Decorah, la. : B. A. 
 
 Occidental College, Los Angeles, Cal. : B. A., B. L., B. S. 
 
 Ohio State University, Columbus, O. : B. A. 
 
 Olivet College, Olivet, Mich. : B. A., Ph. B., B. L., B. S. 
 
 Park 'College, Parksville, Mo. : B. A. 
 
 Pennsylvania State College, State College, Pa. : B. A., 
 
 B. S. 
 
 Polytechnic Institute of Brooklyn, !N". Y. : B. S. in Chem., 
 
 C. E., E. E., M. E. 
 
 Princeton University, Princeton, N. J.: B. A., B. L., B. 
 S., C. E. 
 
 Kandolph-Maeon College, Ashland, Va. : B. A. 
 
 Eiandolph-Macon Woman's College, Lynchburg, Va. : 
 B. A. 
 
 Eutgers College, 'New Brunswick, N. J. : B. A., B. L. 
 
 St. John's College, Brooklyn, N. Y. : B. A. 
 
 St. John's University, CoUegeville, Minn.: B. A. 
 
 St. Joseph's College, Philadelphia, Pa.: B. A. 
 
 St. Lawrence University, Canton, N. Y. : B. A., B. S. 
 
 St. Stephen's College, Annandale, N. Y. : B. A. 
 
 ■Seton Hall College, South Orange, IST. J. : B. A., B. S. 
 
 Shaw University, Ealeigh, N. C. : B. A., B. S. 
 
 Sheffield Scientific School, DSTew Haven, Ct. : Ph. B. 
 
 Smith College, Northampton, Mass. : B. A., B. L., B. S. 
 
 State University of Oklahoma, Norman, Okla. : B. A., 
 Engineering. 
 
 Syracuse University, Syracuse, N. Y. : B. A., Ph. B., B. 
 L., B. S., C. E., E. E., M. E., B. Arch. 
 
 Taylor University, Upland, Ind.: B. A., Ph. B., B. L., 
 B. S. 
 
 Trinity College, Hartford, Ct.: B. A., B. L., B. S. in 
 L. and S. 
 
 Trinity 'College, Toronto, Ont., Can. : B. A. 
 
 Tufts College, Tufts College, Mass. : B. A., B. S., B. Ch. 
 E., C. E., E. E., Mech. E. 
 
 Union University, Schenectady, N. Y. : B. A., PL B., B. 
 S., B. E. 
 
^'^^ Bae Examinations and Coueses of Study. 
 
 University Oollege, Toronto University, Toronto, Ont., 
 Can. : B. A. 
 
 University of Arizona, Tucson, Ariz. : B. S., Ph. B. 
 
 University of California, Berkeley, Cal. : B. A., B. L. 
 
 University of Chattanooga, Chattanooga, Tenn. : B. A., 
 B. L., B. S. 
 
 University of Chicago, Chicago, 111. : B. A., Ph. B., B. S. 
 
 University of Illinois, Champaign, 111. : B. A. 
 
 University of Kansas, Lawrence, Kan. : B. A. 
 
 University of Maine, Orono, Me. : B. A., B. S., B. S. in E. 
 
 University of Michigan, Ann Arhor, Mich. : B. A., B, S. 
 in C. E., M. E., E. E., Chem. E., Marine E. 
 
 University of Minnesota, Minneapolis, Minn. : B. A. 
 
 University of Missouri, Columbia, Mo. : B. A. 
 
 University of Notre Dame, Notre Dame, Ind. : B. A., Ph. 
 B., B. L., B. S. 
 
 University of Ottawa, Ottawa, Ont., Can. : B. A., PL B. 
 
 University of Pennsylvania, Philadelphia, Pa. : B. A., B. 
 S. (general), B. S. in Econ., Chem., Arch., C. E., Chem. E., 
 Mech. E., E. E., Biol. 
 
 University of Kochester, Kochester, N. Y. : B. A., Ph. B., 
 B. S. 
 
 University of Vermont, Burlington, Vt. : B. A., PL B., 
 B. S. in Com. & Econ., C. E., E. E., M. E., Chem. 
 
 Vassar College, Poughkeepsie, N. Y. : B. A. 
 
 Victoria College, Toronto, Ont., Can. : B. A. 
 
 Virginia Military Institute, Lexington, Va. : M. S., C. E. 
 on one year's residence. 
 
 Wells College, Aurora, N. Y. : B. A. 
 
 Wesleyan University, Middletown, Ct. : B. A., Ph B., 
 B. S. 
 
 Westminister College, New Wilmington, Pa.: B. A., B. 
 S. including philosophy & science. 
 
 West Virginia University, Morgantown, W. Va. : B. A., 
 B. S., C. E. 
 
 Williams College, Williamstown, Mass.: B. A. 
 
 Woman's College, Baltimore, Md. : B. A. 
 
 Yale University, New Haven, Ct. : B. A. 
 
COURSES OF STUDY FOR LAW CLERKS. 
 
 [A paper read by Fkanklth M. Danaiter before the Section of Legal 
 Education of the American Bar Association, at Saratoga Springs, N. Y., 
 August ia, iau3.] 
 
 Because of the limited time and space allotted to us, we 
 must be brief, and therefore will leave unsaid much that ia 
 relevant to our discourse on the general subject of legal 
 education, its paramount importance to the public as well 
 as to the profession, its history and development, its present 
 needs and future requirements. The American Bar Asso- 
 ciation through its Section of Legal Education is doing good 
 wonk in advancing the cause of higher education at the bar, 
 and much of the marked improvement therein and the gen- 
 eral raising of the standards for admission thereto are due 
 to its intelligent propaganda. An examination of its re- 
 ports, however, demonstrates that those who shape its poli- 
 cies, read its papers, and give direction to its debates, de- 
 vote their time and talents almost, if not exclusively, to 
 the establishment and improvement of law school methods, 
 and pay but slight, if any, attention to the legal education 
 of the law clerks who cannot, by reason of their environ- 
 ment, attend upon a law school. This omission is due to the 
 fact that the majority of those who endeavor to raise vhe 
 standing of the profession by educating its members are 
 teachers in law schools, and because the average practitioner 
 has neither the time nor the learning to devote to the sub- 
 ject. Whatever may be the cause, the important matter 
 ■of the education of the law clerk in the science of the law 
 appears to be totally neglected, and it will be our present 
 endeavor, although an "average practitioner," to remedy 
 that neglect, with the assistance of the aforesaid professors 
 of the law. 
 
 We believe that those law clerks now studying to be 
 
 -i75 
 
476 Bae Examinations and Couesbs of Studt, 
 
 lawyers, whose circumstances prevent their attendance upon 
 a law school, are thereby handicapped and are too numerous 
 and will constitute too great a proportion of the bar of the 
 future to be educationally neglected by those who are con- 
 stantly evolving new methods of imparting legal knowledge 
 to the students of the universities. The highesit interests 
 of the State, as well as the good of the profession, demand 
 that some endeavor be made to aid them in their struggle, 
 and because of it the N'ew York State Board of Law Ex- 
 aminers, through the altruistic kindness of the law faculties 
 of those great centers of legal education, Cornell, Yale, Penn- 
 sylvania and the N"ew York Law School, is permitted to offer 
 to the law clerks of the United States courses of law study 
 based upon scientific method, which can be followed in the 
 office, wherein are presented the subjects of study, the books 
 to be read thereon, and the order of their reading, to the 
 end that they may enter upon the practice of their profes- 
 sion on an equality with the law school graduates, with 
 some knowledge of the scientific side of the law, and better 
 fitted to take upon themselves its duties and responsibilities. 
 
 In offering these courses of study the Board must not 
 be understood as in any way depreciating or underrating 
 the necessity of a law school education. In a paper read 
 by the writer before the Wew York State Bar Association, 
 at its annual meeting held in the city of Albany in 1897 
 (Eeports New York State Bar Association, vol. 20, p. 105), 
 speaking of the necessity of law school training for applicants 
 for admission to the bar, we said: 
 
 " Observation shows that under modem conditions exist<- 
 ing ia the profession, an education in law cannot be pro- 
 cured exclusively in a law office, and that those who have 
 had the benefit of a law school training are better equipped 
 to enter upon their careers and are more likely to succeed 
 therein than those who come to the bar through an office. 
 The reasons for this are many and obvious. The law clerk 
 of to-day has not the advantages nor the opportunities of 
 his predecessor of even twenty years ago. The methods 
 of office work have been revolutionized in that time. The 
 days when we, as derks, laboriously made five, ten or fifteen 
 
Bab Examinatioks aitd Coueses ov Study. ^Jj 
 
 copies of a complaint in a foreclosure or partition, or copied 
 and triplicated, by pen, orders and complaints and answers, 
 at law and in equity, and unconsciously absorbed the form 
 and substance of what we were doing and learned the lan- 
 guage of the law, have given way to the days of the stenog- 
 rapher and typewriter. Law papers and briefs are now 
 dictated by the attorney to the office stenographer, mani- 
 folded by machinery and sent out in many instances without 
 the iknowledge on the part of the clerk that any such were 
 ever in existence. In many offices clerks follow specialties 
 and learn nothing else, and, paradoxical as it may seem, 
 the more business an office has the less are the educational 
 opportunities of the clerk." * * * 
 
 " How many lawyers, with students in their offices, know 
 or care what the latter are reading or if they study at all? 
 Their reading was not directed in their student days, and 
 they see no reason why that of the present aspirants should 
 be, forgetting entirely the differences in existing conditions 
 at the bar and the vast number of better equipped competi- 
 tors with his clerk, that the law schools are yearly turning 
 out." * * * 
 
 " The chances are equal, if the lawyer cared, that he would 
 not know how to direct or construct a well considered and 
 progressive course of law reading, covering a period of two 
 years or more; so beyond telling him to commence on Black- 
 stone, through many obsolete pages of which his derk will 
 unnecessarily wade, and then to read Kent, he lets him 
 proceed at his own sweet will and pleasure to the destruction 
 of all method, the waste of much valuable time, and the 
 consequent loss of much needed knowledge." ♦ * * 
 
 " Members of the bar of the future to succeed must have 
 a scientific, weJl directed and comprehensive training in a 
 law school. The fact that many of the lawyers of to-day 
 did not have that advantage and still succeeded is no rea- 
 son why the future will not demand it. There is so much 
 to be studied, and so much more that cannot be studied for 
 want of time; there are so many books that must be read, 
 and so many more that can be dispensed witb; there are 
 so many cases to be consideired, rules to learn, and escep- 
 
478 Bab Examinations aot) Coueses of Studt. 
 
 tions to know, that unless the law student puts himself un- 
 der the guidance of some one learned in the art of directing 
 law study, he will float at the mercy of everj; varying wind 
 and tide, upon an ocean of knowledge, without rudder or 
 compass and become unfit to make the voyage of life in his 
 chosen profession." 
 
 Hon. William P. Goodelle, the President of our Board, in 
 his remarks at the conference of State Boards of Bar Ex- 
 aminers, held in connection with the Section of Legal Edu- 
 cation of the American Bar Association, at Saratoga Springs, 
 N. Y., in 1898 (Eeports American Bar Association, vol. 21, 
 p. 533), speaking on the same subject, said: 
 
 " "While many who have not had law school advantages 
 succeed in passing our examinations, they find it exceedingly 
 difficult. The law offices of this State, with typewriters and 
 stenographers doing the work of students in earlier days, 
 with little or no attention paid to them or to their course 
 of study by those who should be their legal preceptors, fur- 
 nish very inadequate advantages to the ordinary student, and 
 he is an exceptionally good man who can go into a law 
 office and so, unaided, fit himself to pass an examination. 
 
 "The student has learned that it is the thorough drill 
 and systematic study of the law school that he needs and 
 desires, to satisfactorily qualify himself in the law; and 
 compelled by a somewhat seeming necessity, coupled with 
 such desire, the tendency is toward the law schools; and 
 the growing appreciation of a law school course will, in 
 my judgment, result before many years in the Court of Ap- 
 peals requiring by its rules that some portion, at least, of a 
 legal course of study (in Wew York) shall be had in a law 
 school." 
 
 The Board is convinced from its abundant experience, that 
 law clerks are not as well equipped in the beginning of their 
 practice and do not know as much law as the graduates of the 
 schools. Its records show that out of every one hundred apply- 
 ing for examination for admission to the bar, who have not 
 had the benefit of a carefully considered and scientifi'c course 
 in a law school, twenty-two fail, and but twelve fail who have 
 had law school training, and the probabilities of future pro- 
 
Bab Examinations and Coueses of Stddt, 4' 9 
 
 fessional success are about in the same proportion. It knows 
 that a curriculum for law clerks is a crying need, from the 
 many requests made for the same, and from the statements 
 repeatedly made to its members by the law clerks, who spent 
 their last year of study in attendance upon a law school, that 
 that which struck them most forcibly and regretfully, after 
 they had been there for a few months, was the valuable time 
 they had lost during their clerkship in the study of the law, 
 not from lack of time or of industry, but from want of method 
 and of direction in how, and what, and when to read. 
 
 The Board recommends a person, who intends to become 
 a lawyer, to first enter a law school and thereafter complete 
 his legal education by serving a clerkship in a law office. 
 
 Unless the student has studied the law as a science, he 
 cannot, even in a law office, without loss of valuable time, 
 and much unnecessary labor, learn to apply it practically 
 with benefit to himself and his client. 
 
 We believe that one who serves a law clerkship of a year 
 after two years of attendance upon a law school, will learn 
 more of practice and procedure and learn it better in that 
 year than he would in three years clerkship without law 
 school experience, and be a much better lawyer in addition. 
 
 The number of law books and their yearly increase is ap- 
 palling, and ia also a most important factor in the great 
 problem of education in the law. Mr. Stephen D. Griswold, 
 the law librarian of the New York Law Library, at Albany, 
 writes to us, that in 1901 there were two hundred and thirty 
 volumes of law reports published in English, containing about 
 one hundred and sixty-one thousand pages, of which ITew 
 York State alone contributed about nineteen thousand pages. 
 That does not include text-books, encyclopedias, reprint 
 series of reports, nor the law magazines. All those pages 
 in a single year; every line a danger, every word a trap, 
 even the punctuation a snare! Think of what has here- 
 tofore been published, and even though he shuts his eyes 
 to the deluge which the future will bring forth, does the 
 average law clerk imagine that he can, without the direction 
 of a properly trained instructor in the law, know what to 
 study, and what not to study, out of that vast mass of un- 
 digested matter? 
 
480 Bj^ Ezamhtatiows aot) Cotjeses of Studt. 
 
 It would be a waste of time for us to endeavor to establish 
 the proposition that a law clerk cannot conibine within, him- 
 self nor find in his law office all the advantages of a univer- 
 sity, and we will not make the attempt. 
 
 We will be content, if but a portion of the good accom- 
 plished by the preparation of this paper, consists in forcing 
 into law schools those indifferent law clerks who can, but 
 will not, either through ignorance or laziness, enter the 
 same, to properly prepare themselves for their future pro- 
 fessional life. Concerning such, we feel at times, quite in 
 the frame of mind of Prof. James Barr Ames, of the faculty 
 of the Law School of Harvard University, who wrote to us 
 that it seemed to him undesirable to encourage men who can- 
 not have the benefit of law school training, but propose to 
 practice law, by providing a curriculum for them alone. We 
 were convinced, however, that it was very essential that some 
 educational aid should be given to those who must come to 
 the bar through the office, and we appealed to the law 
 faculties hereinbefore named, to provide courses of study 
 for them, with the admirable results hereinafter presented. 
 
 The responses were prompt and generous. They show a 
 kind and most commendable disposition and an earnest en- 
 deavor to aid those who are endeavoring under adverse condi- 
 tions to fit themselves through office study alone for the law, 
 and convince us that they have been overlooked rather than 
 deemed unworthy of consideration, by the leaders in the 
 present movement toward higher education at the bar. The 
 courses of study submitted are not ideal, nor do they possess 
 academic perfection ; their authors intended that they should 
 not, but for the purposes for which they were created, they 
 are complete and comprehensive. They represent years of 
 valuable work and experience in the art of teaching law, 
 and are mines full of treasure for faithful and diligent law 
 clerks. Each is up to date, properly balanced, and scien- 
 tifically arranged by its authors, but it must be distinctly 
 understood that neither is as good nor as efficient in results, 
 as could be obtained by personal attendance upon the exer- 
 cises and lectures of the schoola. 
 
CORNELL UNIVERSITY. 
 
 ITHACA, N. Y. 
 
 PROPOSED OUTLINE OF STUDY FOR STUDENTS IN 
 LAW OFFICES. 
 
 Prepared by the Faculty of Cornell University College ot Law. 
 
 A. 
 
 SUBSTANTIVE LAW. 
 
 The studies in Procedure should begin with the studies 
 in Substantive Law and be continued throughout the whole 
 period of study. 
 
 Wherever statutes are indicated, they are the New York 
 statutes. Students in other States must seek assistance as 
 to statutory references from practitioners or teachers in their 
 States. 
 
 I. Elementary Law. 
 
 Woodruff's Introduction to the Study of Law. 
 Eobinson's Elementary Law, with collateral read- 
 ings in Blackstone (Chase's Ed.) and Kent. 
 
 II. Contract and Agency. 
 
 Anson on Contract (Huffcut's Ed.), with study of 
 HufEcut and Woodruff's American Cases on Con- 
 tract (2d Ed.); or Clark or Hariiman (2d Ed.) 
 on Contract. 
 
 Huffcut on Agency (2d Ed.), Book I, with Huff- 
 cut's Cases on Agency. 
 
 in. Torts (including Master and Servant). 
 
 Bigelow on Torts (7th Ed.), with Bigelow's Oasea 
 
 on Torts. 
 New York Code of Civil Procedure, §§ 1899-1908 
 
 and cases thereunder. 
 Huffcut on Agency (2d Ed.), Book H. 
 
 31 481 
 
482 Bab Examinations and Couesks of Studt. 
 
 IV. Domestic Relations and Law of Persons. 
 
 Tiffany on Domestic Eolations, with 
 (W^oodrulE's Casea on Domestic Belations aaod laai 
 
 of Persons. 
 New Yoit Domestic Relations Law. 
 New York Code Civil Procedure, §§ 1743-1774. 
 
 V. Crimes and Criminal Procedure. 
 
 Clark and Marshall on Criminal Law, with Beale'i 
 Cases on Criminal Law, or 
 
 Maj on Criminal Law, with Chaplin's Cases on 
 Criminal Law. 
 
 Beale's Criminal Pleading and Practice. 
 
 New York Penal Code and Code of Criminal Pro- 
 cedure. 
 
 VL The Law of Property. 
 X. Real Property. 
 
 Tiffany on Real Properly, or Hopkins on 
 Real Property, or Tiedeman on Real 
 Property. 
 Finch's Oases on the Law of Property in 
 
 Land. 
 Fowler's Real Property Law of New York. 
 
 3. Personal Property, Including Sales. 
 
 Brantly on Personal Property, with vol. I 
 of Gray's Cases on Property, pp. 1-384. 
 
 Fowler's Personal Property Law of New 
 York. 
 
 Tiffany on Sales, or 
 
 F. M. Burdick on Sales, with F. M. Bur- 
 dick's Cases on Sales. 
 
 Mechem on Sales (2 vols.), and Bennett's 
 Ed. (1809) of Benjamin on Sales, are 
 valuable for reference or study. 
 
 71. Wills and Administrations. 
 
 (Siaplin on Wills, with Page on. Wills, for collat- 
 eral reading. 
 
Eab ExAMmATioNs ASSTD CouBsss <w Studt. 483 
 
 VIL Wills and Administrations — eontinned. 
 
 Croswell on Executors and Adminiatratora (1897). 
 iNew York Code of Civil Procedure, §§ 1814r-18'r0 
 
 and 2472-2860. 
 New York Revised Statutes, Part IE, ch. VI, 
 title I. 
 
 (o) Art. 1, § 1 (as am. by L. 1867, eh. 782), 
 
 2-5. 
 (J) Art. 2, § 21 (as am. by L. 1867, ch. 782), 
 
 22. 
 (c) Art. 3, §§ 40-48, 49 (as am. by L. 1869, 
 ch. 22), 50-53, 69-71. 
 •New York Revised Statutes, Part 11, ch. VIE, title 
 m, §§ 67-70. 
 
 New York Laws. 
 
 L. 1853, ch. 238, § 1 (as am. by L. 1879, 
 
 ch. 316). 
 L. 1860, ch. 360, §§ 1 and 2, 
 1. 1865, ch. 368, § 6. 
 I. 1867, ch. 782, §§ 2, 5, 13 (as am. by L. 
 
 1887, ch. 630), 14. 
 I. 1875, ch. 267, § 7. 
 L. 1875, ch. 343, § 5. 
 L. 1887, ch. 317, § 7. 
 
 VIII. Equity Jurisdiction. 
 
 Bispham on Equity (6th Ed.) or 
 Eaton on Equity. 
 
 IX. Special Contract Subjects. 
 
 Z. Bailments and Carriers. 
 
 Browne's, or Lawson's, or Hale's texts, with 
 McClain's Cases on Carriers, and article II 
 of the New York Railroad Law. 
 
 B, Insurance. 
 
 Richards on Insurance, with Woodruff's 
 Cases on Insurance; and §§ 55, 57, 92, 
 121, 211, 238, 266, of the New York In- 
 surance Law. 
 
,484 Bar Exa mutations and Coueses of Studt. 
 
 17,. Special Contract Subjects — continued. 
 3. Negotiable Instruments. 
 
 Bigelow's Bills, Notes and Cheques (2d 
 
 Ed.). 
 Huffcut's IfTegotiable Instruments. 
 
 X. The Law of Association. 
 
 I. Partnership. 
 
 Burdicik on Partnership, with Burdick'g 
 Cases. 
 
 New Tork Partnersliip Law. 
 3. Joint-Stock Companies. 
 
 New York Joint Stock Association Law. 
 
 3. Private Corporations. 
 
 Taylor or Clark on Corporations, with 
 Smith's or Keener's Cases on Corpora- 
 tions. 
 
 New York General Corporation Law. 
 
 New York Stock Corporation Law. 
 
 New York Business Corporation Law. 
 
 New York Code Civil Procedure, §§ 1775- 
 1813, 3357-3397. 
 
 4. Public Corporations. 
 
 Dillon on Municipal Corporations, or 
 Smith's Cases on Public Corporations. 
 
 XI. Constitutional Law. 
 
 Cooley's Principles of Constitutional Law, with 
 
 MoClain's Cases on Constitutional Law. 
 TJnited States Constitution- 
 New York Constitution. 
 
 B. 
 CIVIL PROCEDURE AND EVIDENCE. 
 
 (NoTK. — The study of Procedure should begin at the same 
 time as the study of the Substantive Law, and be continued 
 throughout the whole period of study.) 
 
 [. Civil Procedure. 
 
 z. Introductory. 
 
 Bryant's Code Pleading. 
 
Bab Eiamih-atioits and Cotjeses of Studt. -4:85' 
 
 L Civil Procedure — continued. 
 
 2. Courts. 
 
 New York Constitution, art. VI. 
 New YoA Code Civil Procedure, §§ 1-103, 
 190-198, 217-262, 340-361. 
 
 3. timitations. 
 
 New York Code Civil Procedure, §§ 362- 
 415. 
 
 4. Commencement of Actions. 
 
 New York Code Civil Procedure, §§ 416- 
 477. 
 
 5. Pleadings. 
 
 New York Code Civil Procedurev §§ 478- 
 
 546. 
 Bliss, Code Pleading. 
 
 6. Interlocutory Proceedings. 
 
 New York Code Civil Procedure, §§ 548- 
 827. 
 
 7. Trials. 
 
 New Yonk Code Civil Procedure, §§ 963- 
 991, 1008-1026, 1163-1189. 
 
 8. Judgments and the Enforcement Thereof. 
 
 New York Code Civil Procedure, §§ 1200^ 
 1281, 1932-1941, 1362-1495, 2432- 
 2471, 1871-1879. 
 
 9. Special Provisions as to Property Actions. 
 
 New York Code Civil Procedure, §§ 1496- 
 1741. 
 
 10. Foreclosure by Advertisement. 
 
 New York Code Civil Procedure, §§ 2861- 
 3158, 2231-2265. 
 
 11. Actions in Justices' Courts. 
 
 New York Code Civil ProceduiB^ §§ 2861- 
 3158, 2231-2265. 
 
486 Bab Examinations Ain> Cotjeses of Study, 
 
 I. Civil Procedure — continued. 
 
 12. State Writs. 
 
 New York Code Civil Procedure, §§ 1991- 
 2102. 
 
 13. Vacating Judgments. 
 
 N'ew York Code Civil Procedure, §§ 1282- 
 1292. 
 
 X4. Exceptions; Motion for New Trial. 
 
 New York Code Civil Procedure, §§ 992- 
 1007. 
 
 15. Appeals. 
 
 New York Code Civil Procedure, §§ 1293'' 
 1361. 
 
 16. Certiorari. 
 
 New York Code CivU Procedure, §§ 2120- 
 2148. 
 
 II. Evidence. 
 
 Stephen's Digest (Chase's 2d ed.), or 
 Greenleaf on Evidence, vol. 1 (Wigmore's ed.) 
 Thayer's Cases on Evidence. 
 New York Code Civil Procedure Index "Ert 
 (Senca.** 
 
YALE UNIVERSITY. 
 
 NEW HAVEN, CONN. 
 
 A COURSE OF READING IN LAW WHICH THE FACULTY 
 OF THE LAW DEPARTMENT OF YALE UNIVERSITY 
 APPROVE AND WHICH IT IS ASSUMED WILL RE- 
 QUIRE THE STUDENT'S CAREFUL ATTENTION DUR- 
 ING A PERIOD OF AT LEAST THREE YEARS. 
 
 The exact order in which legal studies should be pursued 
 is as respects some topics more or less arbitrary. As respects 
 others it is a matter of no little importance, and one which 
 cannot be disregarded, if the best results are to be attained. 
 The matter is of much more importance to those studying 
 alone in offices than to "those who have the aid of instructors 
 in the Law Schools. 
 
 The course of study which we have outlined is not in aU 
 respects that which is followed ia the Yale Law School. A 
 course prescribed for students in schools generally needs 
 modification for those who cannot have the assistance which 
 the schools afford. 
 
 Th3 student may begin his legal study with EOBINSON'S 
 ELEMENTARY lAW, which should be read in connection 
 with BLACKSTONE'S COMMENTARIES, consulting at the 
 same time such other works cited by Professor Robinson as 
 the student has access to in the office in which he reads. He 
 should read the Preface to the work on Elementary Law and 
 carefully conform to its directions. The study of CRIMINAI 
 LAW may next engage his attention, and CLARK'S or MAY'S 
 work on this subject be read. This may be followed by 
 COOLEY or BIGEIOW OH TORTS. 
 
 He may then pass to the subject of CONTRACTS, and it is 
 
 advised to read HTJFrCUT'S EDITION OF ANSON'S LAW OP 
 
 487 
 
■4^8 B^jj EZAMIIJATIONS AND COUESSS OF StUDY. 
 
 COWTilACT, and f oUow it with ClARK'S CONTRACTS, HTrFF- 
 CUT'S AGENCY, LAWSON'S BAIIMENTS, and SCHOTJLEE'S 
 DOMESTIC EEIAllONS may next b© read in the order 
 named. 
 
 Thereafter the law of PROPERTY may be taken, up. The 
 student ia recommended first to read DARLINGTON ON PER- 
 SONAI PROPERTY, and then TIEDEMAN ON REAL PROP- 
 ERTY. 
 
 By thia time he ought to be in a position to understand 
 the bearing of methods of PROCEDURE upon the develop- 
 ment as well as the enforcement of common law rights, and 
 we should advise his turning his attention to ADJECTIVE 
 LAW so far as to acquaint himseK with the main rules of 
 pleading and evidence in civil actions. He should now care- 
 fully study the first volume of GREENLEAE'S EVIDENCE; 
 then HEARD'S CIVIL PLEADINO, following it with BRY- 
 ANT'S CODE PLEADING. 
 
 The subject of EftTJITY should next be taken up, and he 
 may use first the work either of BISPHAM, EATON or MER- 
 WIN, and then PATERBAUGH ON PLEADING AND PRAC- 
 TICE IN EaUITY. 
 
 This may be followed by a work on NEGOTIABLE PAPER. 
 BIGELOW ON BILLS AND NOTES, or NORTON ON BILLS 
 AND NOTES (3d Edition), or HUFFCUrS CASES ON NEGO- 
 TIABLE INSTRUMENTS may be read. 
 
 In conclusion of these preliminary studies, the student 
 is advised to read, in the order named: LINDLEY or PAR- 
 SONS ON PARTNERSHIP; MORAVTETZ, TAYLOR, or EL- 
 LIOTT ON PRIVATE CORPORATIONS; COOLEY'S PRIN- 
 CIPLES OF CONSTITUTIONAL LAW; and POMEROY ON 
 EEMEDIES AND TtTillfT.DTAT. SIGHTS. 
 
NEW YORK LAW SCHOOL 
 
 MEW YORK CITY, N. Y. 
 
 CURRICULUM FOR LAW CLERKS, RECOMMENDED BY 
 THE DEAN OF THE NEW YORK LAW SCHOOL. 
 
 Elementary Law „ Eobinson. 
 
 Domestic Relations .... ) Dwight on Persons and Personal 
 
 Personal Property j Property. 
 
 Criminal law May (Beale's Edition) and Beale's 
 
 Criminal Pleading and Practice. 
 
 Torts Oooley. 
 
 Contracts Clark. 
 
 Principal and Agent. . . HufEcut. 
 
 Bailments Lawson or Hal& 
 
 Sales Tiffany. 
 
 Partnership George, 
 
 Negotiable Paper .... Norton. 
 
 Insurance Eichardg. 
 
 Principal and Surety. . Baylies. 
 Equity Jurisprudence Eaton, or BispHam. 
 Law of Corporations . . Elliott, or Clark. 
 Wills and Administra- ( Schouler on Wills. 
 
 tions I Oroswell on Exrs. and Admrs. 
 
 Real Property , Tiedeman. 
 
 Pleading and Practice N. T. Code Civil Procedure. 
 Evidence Greenleaf (1st volume), or Chase's 
 
 Stephen's Digest of Evidence. 
 Constitutional Law . . . Oooley. 
 Legal Ethics . . . .^ . ^.i Sharswood. 
 
 489 
 
UNIVERSITY OF PENNSYLVANIA. 
 
 PHILADELPHIA, PA. 
 
 SUGGESTED LIST OF WORKS TO BE STUDIED BY A MAN 
 INTENDING TO STUDY LAW IN AN OFFICE, PRE- 
 PARED BY THE DEAN OF THE DEPARTMENT OF 
 LAW. 
 
 Blackstone Any recent standard edition. 
 
 Property Gray's Oases on Property. 
 
 {Digby's History of the Law of 
 Eeal Property. 
 Williams on Real Property. 
 _ . . j Harriman on Contracts. 
 
 ( Keener's Oases on Oontraots. 
 
 _ . j Keener's Oases on Eqnitj. 
 
 ^^'"'^y I Bispham's Equity. 
 
 Trusts Ames's Oases on Trusts. 
 
 _ . , ( Thayer's Oases on Evidence. 
 
 ( Greenleaf s Evidence, 1st volume. 
 
 In conclusion, we will say to those availing themselves of 
 the above valuable work of the law faculties, who have been 
 willing, without price and against interest, to aid in their 
 law education, consider each course carefully, and having 
 determined which is the best suited to your circumstances 
 and surroundings, adopt it, stick to it and finish it. Do not 
 imagine that you can do better work yourself or construct 
 a better system. You cannot, and therefore should not 
 try. The curse of the desultory reading of the majority of 
 the law clerks is its want of method; the lack of an orderly 
 arrangement of the subjects, all coordinating so that some- 
 thing read to-day bj logical processes will lead up to that 
 
 490 
 
 <•" 
 
Bae Examinations AND CouBSEs or Study. 491 
 
 which may come a year later. The learned gentlemen who 
 constructed each of the courses made it a worik perfect in 
 itself, a finished structure from foundation to roof; the dis- 
 turbance of a angle item would destroy its usefulness, and 
 the student who attempts to form from either a system to 
 suit himself wiU. lose the benefit of the logical and scientific 
 method which is the underlying principle of each. The 
 topics must be studied and the books read in the order in 
 which they are placed. Do not change the arrangement nor 
 substitute other books for those recommended. The books 
 named were written, in many instances, by educators for 
 law students, and are distinguishable as such from the ponder- 
 ous encyclopedias and treatises written for the lawyer's use 
 in court. It may be that you do not own the b'ooks suggested; 
 if not, buy at least one of them on each topic; you oannot 
 work without tools. You will acquire a law library some 
 time. Why not begin with the volumes here recommended? 
 Every dollar so spent wiU be advantageously invested, and 
 it's possible expenditure in ways not as beneficial nor as 
 proper prevented. 
 
 We lay great stress upon the constant use of the books of 
 " Select Cases " recommended to be read in connection with 
 the text-books. They are invaluable and a constituent part 
 of the courses. They contain all the leading cases, selected 
 with judgment on the various topics treated, and illustrate 
 the principles of the law by the opinions of its great masters, 
 and on all the subjects bring to the student the best treasures 
 of thousands of books entirely beyond his reach. 
 
 Professor Huffcut, of the faculty of the Cornell University 
 College of Law, expresses so pithily how the books should be 
 read that we will content ourselves on that necessary con- 
 sideration, with a quotation from a letter which he wrote to 
 us. He says: "In regard to the methods of reading, I 
 would suggest that the student should use the text-books and 
 case-books as a pair and not as a tandem. He will get better 
 results by using the principles of the law in operation in the 
 cases as fast as he learns them, than by attempting to learn 
 all of the principles first and then studying the cases." 
 
492, Bab Examinations and Couesbs of Stttdt. 
 
 The courses are good for any State in the Union, for 
 they purpose to teach the principles of the great science. 
 The references to the 'New York statutes in the Cornell 
 course are intended only for those reading for admission to 
 the New York bar, but they are none the less of use to the 
 students of other States whose task it will be to search the 
 statutes of their own jurisdiction and find therein the corre- 
 spondiQg law and study it accordingly. 
 
 It will take a clerk who studies diligently about three years 
 of work, ten months to a year, four hours to a day, to finish 
 any of the courses. Four hours a day of intense application 
 to the study of the law is amply sufficient for the average 
 law clerk and as much as he can assimilate, in view of his 
 office work, with a maximum of good results. If he has ad- 
 ditional time in which to read, he should broaden his mind 
 and improve his style and diction by reading the masterpieces 
 of English literature, not neglecting its poetry and drama; 
 he should read books on the history and development of the 
 law and on English and United States general, political and 
 constitutional history ; also Sharswood's Legal Ethics, a most 
 valuable work. 
 
 The courses suggested are neither in extent nor variety 
 as complex, nor do they cover as many subjects as the cur- 
 riculimi of any of the law schools named, and we indulge 
 in the hope that the clerk will consider them carefully and 
 be so impressed with the magnitude of the task before him 
 that he will at once enter a law school and receive that 
 education in the law which he can obtain nowhere elsa 
 
 But while engaged in the cultivation of his intellect he 
 must not be unmindful of the moral obligations which he 
 will assume upon entering the profession, and should en- 
 deavor to fit himself to support honorably the highest tra- 
 ditions of the bar in its relations to the State, to the 
 administration of justice, to his clients and to himself. 
 
 He should reflect upon the many responsibilities he may 
 be called upon to assume, and fully determine never to do 
 a dishonorable act nor a conscious wrong, and so to live 
 that he will not give just occasion for r^roach, eithOT to 
 himself or to his calling. 
 
Bab ExiMLNATiOKs AND CoiTESEs OF Study. 493 
 
 He should have high ideals and live up to them in a manly 
 and sensible way, and endeavor to be a good citizen, as well 
 as a good lawyer. "We know that by the combination oi 
 talent in his profession and of good citizenship he will be 
 able to reap some of the rewards of properly applied indus- 
 try and at the same time to do his share toward maintaining 
 the dignity and prestige of the ancient and honorable pro- 
 fession of the law. 
 
NEW YORK STATE BAR ASSOCIATION. 
 
 CANONS OF ETHICS. 
 
 Note. — The following Canons of Ethics were adopted by the New 
 York State Bar Association, at its meeting held in the city of Buffalo, 
 on January 29, 1909. 
 
 The Canons were reported by a committee composed of 
 Thomas H. Hubbabd, 
 Alton B. Pabkeb, 
 EiCHAED L. Hand, 
 J. Newton Fieeo, 
 Heney W. Jessxjp, 
 Fbanelin M. Danaheb. 
 
 The committee also recommended the adoption of the following 
 resolutions; all of which were duly adopted: 
 
 Resolved, That the Court of Appeals be respectfully requested to 
 amend its rules for the admission of Attorneys and Counsellors-at-Law 
 by adding to Rule 1 thereof the following: 
 
 " Each applicant for admission to practice as aforesaid shall 
 '■ be required to state in the affidavit filed by him on his applL- 
 " cation for admission that he has read the Canons of Profes- 
 " sional Ethics adopted by the New York State Bar Association 
 "and has faithfully endeavored to make himself acquainted 
 " with the same and that he will endeavor to conform his 
 " professional conduct thereto." 
 
 Be it further resolved, That the State Board of Law Examiners be 
 requested to examine on said Canons of Professional Ethics all appli- 
 cants applying to it for admission to the Bar, and that the faculties 
 of all law schools within this State be requested to teach the subject 
 of professional ethics. 
 
 Be it further resolved, That the Secretary of the Association be 
 directed to send a certified copy of these resolutions to each Judge of 
 the Court of Appeals, to each member of the State Board of Law 
 Examiners, and to the Deans and Faculty of each law school in the 
 State. 
 
 The State Board of Law Examiners has complied with the above 
 request, and hereafter will examine all applicants on the subject of 
 Legal Ethics. 
 
 [1953 
 
496. Bae Examinations and Coueses of Study. 
 
 " There is certainly, without any exception, no profession in which 
 so many temptations beset the path to swerve from the line of strict 
 integrity, in which so many delicate and difficult questions of duty art 
 continually arising. There are pitfalls and mantraps at every step, 
 and the mere youth, at the very outset of his career, needs often the 
 prudence and self-denial as well as the moral courage, which belong 
 commonly to riper years. High moral principle is the only safe guide, 
 the only torch to light his way amidst darkness and obstruction." — 
 Geoese Shakswood. 
 
 " Craft is the vice, not the spirit, of the profession. Trick is profes- 
 sional prostitution. Falsehood is professional apostasy. The strength 
 of a lawyer is in thorough knowledge of legal truth, in thorough devo- 
 tion to legal right. Truth and integrity can do more in the profession 
 than the subtlest and wiliest devices. The power of integrity is the 
 rule; the power of fraud is the exception. Emulation and zeal lead 
 lawyers astray; but the general law of the profession is duty, not 
 success. In it, as elsewhere, in human life, tha judgment of success is 
 but the verdict of little minds. Professional duty, faithfully and well 
 performed, is the lawyer's glory. This is equally true of the Bench and 
 of the Bar." — Edwabd G. Eyaw. 
 
 " Discourage litigation. Persuade your neighbors to compromisj 
 whenever you can. Point out to them how the nominal winner is often 
 a real loser — in fees, expenses and waste of time. As a peacemaker, 
 the lawyer has a superior opportvmity of being a good man. Never 
 stir up litigation. A worse man can scarcely be found than one who 
 does this. Who can be more nearly a fiend than he who habitually 
 overhauls the register of deeds in search of -iefects in titles, whereupon 
 to stir up strife and put money in his pocket! A moral tone ought to 
 be enforced in the profession which would drive such men out of it." — • 
 Abraham Lincoln. 
 
Bae Examinations and Coueses of Study. {497 
 
 Pbeamble 
 
 In America, where the stability of Courts and of all departments 
 of government rests upon the approval of the people, it is peculiarly 
 essential that the system for establishing and dispensing Justice be 
 developed to a high point of efficiency and so maintained that the 
 public shall have absolute confidence in the integrity and impartiality 
 of its administration. The future of the Republic, to a great extent, 
 depends upon our maintenance of Justice pure and unsullied. It cannoc 
 be so maintained unless the conduct and the motives of the members 
 of our profession are such as to merit the approval of all just men. 
 
 II 
 
 The Canons of Ethics 
 
 No code or set of rules can be framed, which will particularize all 
 the duties of the lawyer in the varying phases of litigation or in all the 
 relations of professional life. The following canons of e chics are 
 adopted by the American Bar Association as a general guide, yet the 
 enumeration of particular duties should not be construed as a denial 
 of the existence of others equally imperative, though not specifically 
 mentioned : 
 
 1. The Duty of the Lawyer to the Courts. It is the duty of the 
 lawyer to maintain towards the Courts a respectful attitude, not for 
 the sake of the temporary incumbent of the judicial office, but for 
 the maintenance of its supreme importance. Judges, not being wholly 
 free to defend themselves, are peculiarly entitled to receive the suppoit 
 of the Bar against unjust criticism and clamor. Whenever there li 
 proper ground for serious complaint of a judicial officer, it is the right 
 and duty of the lawyer to submit the grievances to the proper autliori- 
 ties. In such cases, but not otherwise, such charges should be encour- 
 aged and the person making them should be protected. 
 
 2. The Selection of Judges. It is the duty of the Bar to endeavor 
 to prevent political considerations from outweighing judicial fitness in 
 the selection of Judges. It should protest earnestly and actively against 
 the appointment or election of those who are unsuitable for the Bench; 
 and it should strive to have elevated thereto only those willing to 
 forego other employments, whether of a business, political or other 
 character, which may embarrass their free and fair consideration of 
 questions before them for decision. The aspiration of lawyers for judi- 
 cial position should be governed by an impartial estimate of their 
 ability to add honor to the office and not by a desire for the distinction 
 the position may bring to themselves. 
 
 '\ 32 
 
498 Bae Examinations and Cotjeses of Study. 
 
 3. Attempts to Ezert Personal Influence on the Court. Marked 
 attention and unusual hospitality on the part of a lawyer to a. Judge, 
 uncalled for by the personal relations of the parties, subject both the 
 Judge and the lawyer to misconstructions of motive and should be 
 avoided. A lawyer should not communicate or argue privately with, 
 the Judge as to the merits of a pending cause^ and he deserves rebuke 
 and denunciation for any device or attempt to gain from a Judge 
 special personal consideration or favor. A self-respecting independence 
 in the discharge of professional duty, without denial or diminution of 
 the courtesy and respect due the Judge's station, is the only proper 
 foundation for cordial personal and of&cial relations between Bench and 
 Bar. 
 
 4. When Counsel for an Indigent Prisoner. A lawyer assigned as 
 counsel for an indigent prisoner ought not to ask to be excused for any 
 trivial reason, and should always exert his best efforts in his behalf. 
 
 5. The Defense or Prosecution of Those Accused of Crime. It is 
 
 the right of the lawyer to undertake the defense of a person accused ol 
 crime, regardless of his personal opinion as to the guilt of the accused; 
 otherwise innocent persons, victims only of suspicious circumstances, 
 might be denied proper defense. Having undertaken such defense, the 
 lawyer is bound by all fair and honorable means to present every 
 defense that the law of the land permits, to the end that no person 
 may be deprived of life or liberty, but by due process of law. 
 
 The primary duty of a lawyer engaged in public prosecution is not 
 to convict, but to see that justice is done. He should avoid oppression 
 and injustice of any kind whatsoever. The suppression of facts or the 
 secreting of witnesses capable of establishing the innocence of the 
 accused is a public wrong. 
 
 6. Adverse Influences and Conflicting Interests. It is the duty of 
 a lawyer at the time of retainer to disclose to the client all the circum- 
 siances of his relations to the parties, and any interest in or connection 
 with the controversy, which might influence the client in the selection 
 of counsel. 
 
 It is unprofessional to represent conflicting interests, except by 
 express consent of all concerned given after a full disclosure of the 
 facts. Within the meaning of this canon, a lawyer represents conflict- 
 ing interests when, in behalf of one client, it is his duty to contend 
 for that which duty to another client requires him to oppose. 
 
 The obligation to represent the client with undivided fidelity and 
 not to divulge his secrets or confidences forbids also the subsequent 
 acceptance of retainers or employment from dthers in matters adversely 
 affecting any interest of the client with respect to which confidence has 
 been reposed. 
 
I 
 
 Bae ExaSiinations and Coubses of Study. 499 
 
 7. Professional Colleagues and Conflicts of Opinion. A client's 
 proffer of assistance of additional counsel should not be regarded as 
 evidence of want of confidence, but the matter should be left to t,he 
 determination of the client. A lawyer should decline association as 
 colleague if it is objectionable to the original counsel, but if the lawyer 
 first retained is relieved, another may come into the case. 
 
 When lawyers jointly associated in a cause cannot agree as to any 
 matter vital to the interest of the client, the conflict of opinion should' 
 be frankly stated to him for his final determination. His decision 
 should te accepted unless the nature of the difference makes it impracti- 
 cable for the lawyer whose judgment has been overruled to co-operate 
 eft'ectively. In this event it is his duty to ask the client to relieve him. 
 
 Efforts, direct or indirect, in any way to encroach upon the business 
 of another lawyer, are unworthy of those who should be brethren at the 
 Bar; but, nevertheless, it is the right of any lawyer, without fear or 
 favor, to give proper advice to those seeking relief against unfaithful or 
 neglectful counsel, generally after communication with the lawyer of 
 whom the complaint is made. 
 
 8. Advising Upon the Merits of a Client's Cause. A lawyer should 
 endeavor to obtain full knowledge of his client's cause before advising 
 thereon, and he is bound to give a candid opinion of the merits and 
 probable result of pending or contemplated litigation. The miscarriages 
 to which justice is subject, by reason of surprises and disappointments 
 in evidence and witnesses, and through mistakes of juries and errors of 
 Courts, even though only occasional, admonish lawyers to beware of 
 bold and confident assurances to clients, especially where the employ- 
 ment may depend upon such assurance. Whenever the controversy will 
 ment of the C!ourt as to the legal merits of his client's claim. His ap- 
 end the litigation. 
 
 g. Negotiations With Opposite Party. A lawyer should not in any 
 way communicate upon the subject of controversy with a party repre- 
 sented by counsel; much less should he undertake to negotiate or com- 
 promise the matter with him, but should deal only with his counsel. 
 It is incumbent upon the lawyer most particularly to avoid everything 
 that may tend to mislead a party not represented by counsel, and he 
 should not undertake to advise him as to the law. 
 
 10. Acquiring Interest in Litigation. The lawyer should not pur- 
 chase any interest in the subject-matter of the litigation which he is 
 conducting. 
 
 11. Dealing With Trust Property. Money of the client or other 
 trust property coming into the possession of the lawyer should be 
 reported promptly, and except with the client's knowledge and consen* 
 should not be commingled with his private property or be used by him. 
 
500 Bab Examinations and Courses of Study. 
 
 12. Fixing the Amount of the Fee. In fixing fees, lawyers should 
 avoid charges which overestimate their advice and services, as well as 
 those which undervalue them. A client's ability to pay cannot justify 
 a charge in excess of the value of the service, though his poverty may 
 require a less charge, or even none at all. The reasonable requests of 
 brother lawyers, and of their widows and orphans without ample 
 means, should receive special and kindly consideration. 
 
 In determining the amount of the fee, it is proper to consider: 
 
 ( 1 ) the time and labor required, the novelty and diflSculty of the ques- 
 tions involved and the skill requisite properly to conduct the cause; 
 
 (2) whether the acceptance of employment in the particular case will 
 preclude the lawyer's appearance for others in cases likely to arise out 
 of the transaction, and in which there is a reasonable expectation that 
 otherwise he would be employed, or will involve the loss of other busi- 
 ness while employed in the particular case or antagonisms with other 
 clients; (3) the customary charges of the Bar for similar services; 
 (4) the amount involved in the controversy and the benefits resulting 
 to the client from the services; (5) the contingency or the certainty of 
 the compensation; and (6) the character of the employment, whether 
 casual or for an established and constant client. No one of these con- 
 siderations in itself is controlling. They are mere guides in ascertain- 
 ing the real value of the service. 
 
 In fixing fees it should never be forgotten that the profession is a 
 
 branch of the administration of justice and not a mere money-getting 
 
 trade- 
 rs. Contingent Fees. Contingent fees, where sanctioned by law, 
 
 should be under the supervision of the Court, in order that clients may 
 
 be protected from unjust charges. 
 
 14. Suing a Client for a Fee. Controversies with clients concern- 
 ing compensation are to be avoided by the la^vyer so far as shall be 
 compatible with his self-respect and with his right to receive reasonable 
 recompense for his services; and lawsuits with clients should be resorted 
 to only to prevent injustice, imposition or fraud. 
 
 15. How Far a Lawyer May Go in Supporting a Client's Cause. 
 Nothing operates more certainly to create or to foster popular prejudice 
 against lawyers as a class, and to deprive the profession of that full 
 measure of public esteem and confidence which belongs to the proper 
 discharge of its duties than does the false claim, often set up by the 
 unscrupulous in defense of questionable transactions, that it is the 
 duty of the lawyer to do whatever may enable him to succeed in win- 
 ning his client's cause. 
 
 It is improper for a lawyer to assert in argument his personal 
 belief in his client's innocence or in the justice of his cause. 
 
Bak Examinations and Coueses of Study. 501 
 
 The lawyer owes " entire devotion to the interest of the client, 
 ■warm zeal in the maintenance and defense of his rights and the exertion 
 of his utmost learning and ability,'' to the end that nothing be taken 
 or be withheld from him, save by the rules of law, legally applied. No 
 fear of judicial disfavor or public unpopularity should restrain him 
 from the full discharge of his duty. In the judicial forum the client is 
 entitled to the benefit of any and every remedy and defense that is 
 authorized by the law of the land, and he may expect his lawyer to 
 assert every such remedy or defense. But it is steadfastly to be borne 
 in mind that the great trust of the lawyer is to be performed within 
 and not without the bounds of the law. The office of attorney does not 
 permit, much less does it demand of him for any client, violation of 
 law or any manner of fraud or chicane. He must obey his own con- 
 science and not that of his client. 
 
 i6. Kestraining Clients from Improprieties. A lawyer should use 
 his best efforts to restrain and to prevent his clients from doing those 
 things which the lawyer himself ought not to do, particularly with 
 reference to their conduct towards Courts, judicial officers, jurors, wit- 
 nesses and suitors. If a client persists in such wrongdoing the lawyer 
 should terminate their relation. 
 
 17. Ill Feeling and Personalities Between Advocates. Clients, noi 
 lawyers, are litigants. Whatever may be the ill feeling existing between 
 clients, it should not be allowed to influence counsel in their conduct 
 and demeanor toward each other or toward suitors in the case. All 
 personalities between counsel should be scrupulously avoided. In the 
 trial of a cause it is indecent to allude to the personal history or the 
 personal peculiarities and idiosyncracies of counsel on the other side. 
 Personal colloquies between counsel which cause delay and promote 
 unseemly wrangling should also be carefully avoided. 
 
 18. Treatment of Witnesses and Litigants. A lawyer should 
 always treat adverse witnesses and suitors with fairness and due con- 
 sideration, and he should never minister to the malevolence or preju- 
 dices of a client in the trial or conduct of a cause. The client cannot 
 be made the keeper of the lawyer's conscience in professional matters. 
 He has no right to demand that his counsel shall abuse the opposite 
 party or indulge in offensive personalities. Improper speech is not 
 excusable on the ground that it is what the client would say if speaking 
 in his own behalf. 
 
 19. Appearance of Lawyer as Witness for His Client. When a 
 lawyer is a witness for his client, except as to merely formal matters, 
 such as the attestation or custody of an instrument and the like, ha 
 should leave the trial ,of the case to other counsel. Except when essen- 
 tial to the ends of justice, a lawyer should avoid testifying in Court in 
 behalf of his client. 
 
502 Bae Examik-ations and Cousses of Study. 
 
 20. Newspaper Discussion of Pending Litigation. Newspaper pub- 
 lications by a lawyer as to pending or anticipated litigation may inter- 
 fere with a fair trial in the Courts and otherwise prejudice the due 
 administration of justice. Generally they are to be condemned. If the 
 extreme circumstances of a particular case justify a statement to the 
 public, it is unprofessional to make it anonymously. An eai pa/rti 
 reference to the facts should not go beyond quotation from the records 
 and papers on file in the Court; but even in extreme cases it is better 
 to avoid any ex parte statement. 
 
 21. Punctuality and Expedition. It is the duty of the lawyer not 
 only to his client, but also to the Courts and to the public to be punc- 
 tual in attendance, and to be concise and direct in the trial and disposi- 
 tion of causes. 
 
 22. Candor and Fairness. The conduct of the lawyer before the 
 Court and with other lawyers should be characterized by candor and 
 fairness. 
 
 It is unprofessional and dishonorable for the lawyer knowingly to 
 misquote the contents of a paper, the testimony of a witness, the lan- 
 guage or the argimient of opposing counsel, or the language of a decision 
 or a text-book; or with knowledge of its invalidity, to cite as authority 
 a decision that has been overruled, or a statute that has been repealed: 
 or in argument to assert as a fact that which has not been proved, or 
 in those jurisdictions where a side has the opening and closing argu- 
 ments to mislead his opponent by concealing or withholding positions in 
 his opening argument upon which his side then intends to rely. 
 
 It is unprofessional and dishonorable to deal other than honestly 
 with the facts in taking the statements of witnesses, in drawing affi. 
 davits and other docmnents, and in the presentation of causes. 
 
 A lawyer should not offer evidence, which he knows the Court 
 should reject, in order to get the same before the jury by argument for 
 its admissibility, nor should he address to the Judge arguments upon 
 any point not properly calling for determination by him. Neither 
 should he introduce into an argimaent, addressed to the Court, remarks 
 or statements intended to influence the jury or bystanders. 
 
 These and all kindred practices are unprofessional and unworthy 
 of an officer of the law charged, as is the lawyer, with the duty of 
 aiding in the administration of justice. 
 
 23. Attitude Toward Jury. All attempts to curry favor with 
 juries by fawning, flattery or pretended solicitude for their persona] 
 comfort are unprofessional. Suggestions of counsel, looking to the 
 comfort or convenience of jurors, and propositions to dispense with 
 argument, should be made to the Court out of the jury's hearing. 
 A lawyer must never converse privately with jurors about the case; 
 and both before and during the trial he should avoid communicating 
 with them, even as to matters foreign to the cause. 
 
Bae E:^minations and Coueses of Study. 503 
 
 24. Right of Lawyer to Control the Incidents of the Trial. As to 
 incidental matters pending the trial, not affecting the merits of the 
 cause, or working substantial prejudice to the rights of the client, such 
 as forcing the opposite lawyer to trial when he is under affliction or 
 bereavement; forcing the trial on a particular day to the injury of the 
 opposite lawyer when no harm will result from a trial at a different 
 time; agreeing to an extension of time for signing a bill of exceptions, 
 cross interrogatories and the like, the lawyer must be allowed to judgo. 
 In such matters no client has a right to demand that his counsel shall 
 be illiberal, or that he do anything therein repugnant to his own sense 
 ■of honor and propriety. 
 
 25. Taking Technical Advantage of Opposite Counsel; Agreements 
 With Him. A lav/yer should not ignore known customs or practice of 
 the Bar or of a particular Court, even when the law permits, without 
 giving timely notice to the opposing counsel. As far as possible, im- 
 portant agreements, affecting the rights of clients, should be reduced to 
 "writing; but it is dishonorable to avoid performance of an agreement 
 fairly made because it ia not reduced to writing, as required by rules 
 •of Court. 
 
 26. Professional Advocacy Other Than Before Courts. A lawyer 
 openly, and in his true character may render professional services 
 before legislative or other bodies, regarding proposed legislation and in 
 4idvocacy of claims before departments of government, upon the same 
 principals of ethics which justify his appearance before the Courts; but 
 it is unprofessional for a lawyer so engaged to conceal his attorneyship, 
 or to employ secret personal solicitations, or to use means other thaii 
 those addressed to the reason and understanding to influence action. 
 
 27. Advertising, Direct or Indirect. The most worthy and effective 
 advertisement possible, even for a young lawyer, and especially with 
 his brother lawyers, is the establishment of a well-merited reputation 
 for professional capacity and fidelity to trust. This cannot be forced, 
 but must be the outcome of character and conduct. The publication 
 or circulation of ordinary simple business cards, being a matter of per- 
 sonal taste or local custom, and sometimes of convenience, is not per se 
 improper. But solicitation of business by circulars or advertisements, 
 or by systematic personal canvassing is unprofessional. It is equally 
 unprofessional to procure business by indirection through touters of any 
 kind, whether allied real estate firms or trust companies advertising 
 to secure the drawing of deeds or wills or offering retainers in ex- 
 change for executorships or trusteeships to be influenced by the lawyer. 
 Indirect advertisement for business by furnishing or inspiring news- 
 paper comments concerning causes in which the lawyer has been or is 
 engaged, or concerning the matter of their conduct, the magnitude of 
 
504 Bae Examinations and Courses of Study. 
 
 the interests involved, the importance of the lawyer's positions, and 
 all other like self-laudation, defy the traditions and lower the tone 
 of our high calling, and are intolerable. 
 
 28. Stirring up Litigation, Directly or Through Agents. It is 
 unprofessional for a lawyer to volunteer advice to bring a lawsuit, 
 except in rare cases where ties of blood, relationship or trust make it 
 his duty to do so. Stirring up strife and litigation is not only un- 
 professional, but it is indictable at common law. It is disreputable 
 to hunt up defects in titles or other causes of action and inform 
 thereof in order to be employed to bring suit, or to breed litigation by" 
 seeking out those with claims for personal injuries or those having 
 any other grounds of action in order to secure them as clients, or to 
 employ agents or runners for like purposes, or to pay or reward, 
 directly or indirectly, those who bring or influence the bringing of 
 such cases to his oiBce or to remunerate policemen, court or prison 
 oiBcials, physicians, hospital attacMs or others who may succeed, 
 under the guise of giving disinterested friendly advice, in influencing 
 the criminal, the sick and the injured, the ignorant or others, to seek 
 his professional services. A duty to the public and to the profession 
 devolves upon every member of the Bar, having knowledge of barratrous 
 practices upon the part of any practitioner, immediately to inform 
 thereof to the end that the offender may be disbarred. 
 
 29. Upholding the Honor of the Profession. Lawyers should expos* 
 without fear or favor before the proper tribunals corrupt or dishonest 
 conduct in the profession, and should accept without hesitation em- 
 ployment against a member of the Bar who has wronged his client. 
 The counsel upon the trial of a cause in which perjury has been com- 
 mitted owe it to the profession and to the public to bring the matter 
 to the knowledge of the prosecuting authorities. The lawyer should 
 aid in guarding the Bar against the admission to the profession of 
 candidates unfit or unqualified because deficient in either moral char- 
 acter or education. He should strive at all times to uphold the honor 
 and to maintain the dignity of the profession and to improve not only 
 the law but the administration of justice. 
 
 30. Justifiable and Unjustifiable Litigations. The lawyer must 
 decline to conduct a civil cause or to make a defense when convinced 
 that it is intended merely to harass or to injure the opposite party 
 or to work oppression or wrong. But otherwise it is his right, and, 
 having accepted retainer, it becomes his duty to insist upon the judg- 
 ment of the Court as to the legal merits of his client's claim. His ap- 
 pearance in Court should be deemed equivalent to an assertion on his 
 honor that in his opinion his client's case ia one proper for judicial 
 determination. 
 
Bae Examinations and Coueses of Study. 505 
 
 31. Hesponsibility for Litigation. No lawyer is obliged to act 
 either as adviser or advocate for every person who may wish to become 
 his client. He has the right to decline employment. Every lawyer 
 upon his own responsibility must decide what business he will accept 
 as counsel, what causes he will bring into Court for plaintiffs, what 
 cases he will contest in Court for defendants. The responsibility for 
 advising questionable transactions, for bringing questionable suits, for 
 urging questionable defences, is the lawyer's responsibility. He cannot 
 escape it by urging as an excuse that he is only following his client's 
 instructions. 
 
 32. The Lawyer's Duty in Its Last Analysis. No client, corpo- 
 rate or individual, however powerful, nor any cause, civil or political, 
 however important, is entitled to receive, nor should any lavpyer render, 
 any service or advice involving disloyalty to the law whose ministers 
 we are, or disrespect of the judicial office, which we are bound to uphold, 
 or corruption of any person or persons exercising a public office or 
 private trust, or deception or betrayal of the public. When rendering 
 any such improper service or advice, the lawyer invites and merits 
 stern and just condemnation. Correspondingly, he advances the honor 
 of his profession and the best interests of his client when he renders 
 service or gives advice tending to impress upon the client and his 
 undertaking exact compliance with the strictest principles of moral law. 
 He must also observe and advise his client to observe the statute law, 
 though until a statute shall have been construed and interpreted by 
 competent adjudication, he is free and is entitled to advise as to 
 its validity and as to what he conscientiously believes to be its just 
 meaning and extent. But above all a lawyer will find his highest 
 honor in a, deserved reputation for fidelity to private trust and to pub- 
 lic duty, as an honest man and as a patriotic and loyal citizen. 
 
 III. 
 
 Oath ob Admission. 
 The general principles which should ever control the lawyer in the 
 practice of his profession are clearly set forth in the following Oatb 
 of Admission to the Bar, which we recommend for adoption. 
 
 I DO SOLEMNLY SWEAE: 
 
 I will support the Constitution of the United States and the Con- 
 stitution of the State of 
 
 I will maintain the respect due to Courts of Justice and judicial 
 officers ; 
 
 I will not counsel or maintain any suit or proceeding which shall 
 appear to me to be unjust, nor any defense except such as I believe 
 to be honestly debatable under the law of the land: 
 
506 Bar Examinations and Cotjeses of Study. 
 
 I will employ for the purpose of maintaining the causes confided 
 to me such means only as are consistent with truth and honor, and 
 will never seek to mislead the Judge or jury by any artifice or false 
 statement of fact or law; 
 
 I will maintain the confidence and preserve inviolate the secrets 
 of my client, and will accept no compensation in connection with his 
 business except from him or with his knowledge and approval; 
 
 I will abstain from all oflfensive personality, and advance no fact 
 prejudicial to the honor or reputation of a party or witness, unless 
 required by the justice of the cause with which I am charged; 
 
 I will never reject, from any consideration personal to myself, the 
 cause of the defenseless or oppressed, or delay any man's cause for 
 lucre or maliee. SO HELP ME GOD. 
 
INDEX, 
 
 PAGE. 
 
 ADMISSION; PRACTICE ON, AFTER EXAMINATION 407 
 
 First Department 413 
 
 Second Department 416 
 
 Third Department 417 
 
 Foiirth Department 418 
 
 ANSWERS 200-40e 
 
 BAR EXAMINATIONS: 
 
 Preparation for 1 
 
 Subjects of examination 4 
 
 How to take the examination 5 
 
 Questions given on examinations, considered 8 
 
 CANONS OF LEGAL ETHICS 495 
 
 ■CHARACTER: 
 
 Good moral character necessary for admission 408, 409 
 
 of those admitted on motion 409 
 
 AflR davit of, what to contain 408 
 
 not conclusive 408 
 
 by whom to be made 408, 410 
 
 in First Department 413 
 
 in Second Department 416 
 
 in Third Department 417 
 
 in Fourth Department 418 
 
 Form of affidavit 467 
 
 COLLEGES, REGISTERED 47'1 
 
 COURSES OF STUDY FOR LAW CLERKS 475 
 
 Cornell Law School; course recommended by faculty of 481 
 
 Yale Law School ; course recommended by faculty of 487 
 
 New York Law School; course recommended by faculty of . . . . 489 
 University of Pennsylvania Law School; course recommended 
 by faculty of 490 
 
 degrees registered 471 
 
 :examination, rules of 13 
 
 subjects of, divided into two groups 4, 448 
 
 [507] 
 
508 Index. 
 
 forms: page. 
 
 Certificate of commencement of clerkship 452 
 
 Applicant's affidavit 456 
 
 Attorney's affidavit 462, 463 
 
 Affidavit of good moral character 467 
 
 Registration oath 469 
 
 Affidavit by attorney to obtain order filing clerkship certificate 
 
 nunc pro tunc 453 
 
 by law clerk 454 
 
 Order; filing certificate of clerkship nunc pro tunc 455 
 
 Law school certificate s 464, 465 
 
 Affidavit for re-examination 468 
 
 LEGAL ETHICS, CANONS OF 496 
 
 I 
 
 QUESTIOiyS: 
 ^ Pleading and Practice: 
 
 Nos. 1, 2, 3, 4, 5, 6, 51, 52, 53, 54, 55, 56, 101, 102, 103, 104, 105, 
 106, 151, 152, 153, 154, 155, 156, 201, 202, 203, 204, 205, 206, 
 251, 252, 253, 254, 255, 2S6, 301, 302, 303, 304, 305, 306, 351, 
 352, 353, 354, 355, 356, 401, 402, 403, 404, 405, 406, 451, 452, 
 453, 464, 455, 456, 501, 502, 5013, 504, 505, 506, 551, 55:2, 553, 
 554, 555, 556, 557, 558, 558, 560, 561, 562, 563, 564, 565, 566, 
 567, 568, 569, 570, 571, 572, 573, 574, 575, 576, 577, 578, 579, 
 580, 581, 582, 583, 584, 586, 586, 587, 586, 588, 590, 5S1, 592, 
 593, 594, 595, 596, 597, 598, 599, 600, 601, 602, 60S, 604, 605, 
 606, 607, 608, 609, 610, 611, 612, 613, 614, 615, 616, 617, 618, 
 619, 620, 621, 622, 623, 624, 625, 626, 627, 628, 629, 630, 63il, 
 632, 633, 634, 635, 636, 637, 638, 639, 640, 641, 642, 643, 644, 
 643, 646, 647, 648, 649, 650. 
 Keal Property: 
 
 Nos. 7, 8, 9, 57, 58, 59, 107, 108, 109, 157, 158, 159, 207, 208, 
 209, 257, 258, 259, 307, 308., 309, 357, 358, 359, 407, 408, 40«, 
 463, 4)64, 465, 513, 514, S'15. 
 Contracts : 
 
 Nos. 10, 11, 60, 61, 110, 111, 160, 161, 210, 211, 260, 261, 310, 
 311, 360, 361, 410, 41il, 46©, 467, S16, 517. 
 Partnership : 
 
 Nos. 12, 13, 62, 63, 112, 113, 162, 163, 212, 213, 262, 263, 312, 
 313, 362, 3613, 418, 413, 468, 469, 51», 519. 
 Negotiable Instruments: 
 
 Nos. 14, 15, 64, 65, 114, 116, 164, 165, 214, 215, 264, 265, 314, 
 315, 364, 365, 414, 415, 470, 471, 520, 521. 
 Principal and Agent: 
 
 Nos. 16, 17, 66, 67, 116, 117, 166, 167, 216, 217, 266, 267, 316, 
 317, 366, 367, 4il6, 417, 472, 473, '622, 623. 
 
Ihdex. 509 
 
 QUESTIONS — Continued. page. 
 
 Principal and Surety: 
 
 Nos. 18, 19, 08, 69, 118, 119, 168, 169, 218, 219, 268, 269, 318, 
 319, 368, 369, 418, 419, 474, 475, 1524, 52'5. 
 Insurance : 
 
 Nos. 20, 21, 70, 71, 120, 121, 170, 171, 220, 221, 270, 271, 320, 
 321, 370, 3T1, 420, 4'21, 476, 477, 526, 527. 
 Bailments : 
 
 Nos. 22, 23, 72, 73, 122, 123, 172, 173, 222, 223, 272, 273, 322, 
 323, 372, 373, 422, 423, 47», 479, 528, 529. 
 Sales : 
 
 Nos. 24, 25, 74, 75, 124, 174, 175, 224, 225, 274, 275, 324, 325, 
 374, 375, 424, 425, 480, 481, 530, 531. 
 w' Evidence : 
 
 Nos. 26, 27, 28, 29, 30, 76, 77, 78, 79, 80, 126, 127, 128, 129, 
 130, 176, 177, 178, 179, 180, 226, 227, 228, 229, 230, 276, 277, 
 278, 279, 280, 326, 327, 328, 329, 330, 376, 377, 378, 379, 380, 
 426, 427, 428, 429, 430, 457, 458, 459, 460, 461, 462, 507, 508, 
 509, 510, 511, 512. 
 Criminal Law: 
 
 Nos. 31, 32, 33, 81, 82, 83, 131, 132, 133, 181, 182, 183, 231, 232, 
 233, 281, 282, 283, 331, 332, 333, 3S1, 382, 383, 431, 432, 433, 
 482, 483, 484, 532, 533, 534. 
 Torts : 
 
 Nos. 34, 35, 36, 84, 85, 86, 134, 135, 136, 184, 185, 186, 234, 235, 
 236, 284, 285, 286, 334, 335, 336, 384, 385, 386, 434, 435, 436, 
 485, 486, 487, 535, 536, 537. 
 Wills and Administration: 
 
 Nos. 37, 38, 39, 87, 88, 89, 137, 138, 139, 187, 188, 189, 237, 238, 
 239, 287, 288, 280, 337, 338, 339, 387, 388, 389, 437, 438, 439, 
 488, 489, 490, 538, 539, 540. 
 Equity: 
 
 Nos. 40, 41, 42, 90, 91, 92, 140, 141, 142, 190, 191, 192, 240, 241, 
 242, 290, 291, 292, 340, 341, 342, 390, 391, 392, 440, 441, 442, 
 491, 492, 493, 541, 542. 
 Corporations : 
 Nos. 43, 44, 45, 93, 94, 96, '14'3, 144, 145, 19'3, 194, 195, 243, 244, 
 245, 293, 294, '295, 343, 344, 345, 398, 394, 396, 44'3, 444, 445, 
 494, 495, 496, 543, 544. 
 Domestic Relations: 
 Nos. 46, 47, 48, 96, 97, 98, 146, 147, 148, 196, 197, 198, 2i46, 247, 
 248, 296, 1297, 298, 346, 347, 348, 396, 397, 898, 446, 4*7, 448, 
 497, 498, 545, 548. 
 Legal Ethics: 
 Nos. 547, 548. 
 
510 Index. 
 
 QUESTIONS — Continued. page. 
 
 Constitutional Law: 
 Nos. 49, 50, 99, 100, 14», 160, 199, 200, 249, 250, 299, 300, 349, 
 350, 399, 400, 449, 450, 499, 500, 549, 550. 
 
 IlEGISTEATION LAW: 
 
 Attorneys and counselors to take and subscribe registration 
 
 oath 426 
 
 Oa,th, form prescribed 426 
 
 form of 469 
 
 to be filed in office of clerk of Court of Appeals 426 
 
 Attorneys of Supreme Court, admitted prior to July 1, 1847, 
 
 must register 426 
 
 Solicitors in chancery, admitted prior to July 1, 1847, must 
 
 register 426 
 
 Oath may be filed nunc pro time 42fi 
 
 Fraud or deceit in oath, a felony 426 
 
 False statement in oath, a felony 427 
 
 Attorney not entitled to practice until oath is filed 426 
 
 Official register of attorneys, etc., created 427 
 
 Attorneys; persons not registered, must not practice 427 
 
 penalty for unlawfully practicing 428 
 
 Fee for filing oath 42T 
 
 RULES, COURT OF APPEALS: 
 
 Rules in eflfeot, June 1, 1908 429 
 
 Rules in eflfect July 1, 1911 436 
 
 Attorneys or counselors to be admitted and licensed by Appel- 
 late Divisions 436 
 
 those admitted in another State for five years or more . . 436 
 
 may be licensed without examination 436 
 
 those admitted in another State three years or more 437 
 
 conditions on which such are admitted 437, 439 
 
 latter need not have law student's certificate 438 
 
 attorneys admitted pro hac vice 437 
 
 conditions on which such admission is granted 437 
 
 iApplioants for admission: 
 
 must produce and file certificate of State Board of Law 
 
 Examiners 425, 438 
 
 affidavit of good moral character required 409, 438 
 
 qualifications required of, for examination 437 
 
 citizen, must be 437 
 
 of full age 437 
 
 resident of the State 437 
 
 of Department for six months 425 
 
 m.ay be examined in any Department 447 
 
 must not have been examined and refused within four 
 
 months 437, 443 
 
 period of law study four years 437 
 
Index. 511 
 
 RULES, COURT OF APPEALS — Continued. page. 
 
 Applicants for admission — Continued. 
 
 period of law study must be after eighteen years of age. 440 
 period of law study for graduates of college or university . 437 
 period of law study fulfilled by clerkship or by attending a 
 
 law school, or part by clerkship and part by law 
 
 school 437, 438 
 
 period of law study by graduate of college or university 
 
 must be after his graduation 43'& 
 
 period of law study required of attorneys admitted in 
 
 other States 4'38', 4i4'8 
 
 Regents' examinations, provided for 439' 
 
 passing of, how proved 439 
 
 subjects of examination of 439 
 
 to be completed before commencement of law study 439 
 
 Law student's certificate, provided for 469 
 
 may be granted on passing IRegents' examinatiotis 439 
 
 may be granted on a year's study in a, college or university. 439i 
 may be granted on four years' study in high school or 
 
 academy 439 
 
 may be granted on Riegents' diploma 439 
 
 to be filed in office of clerk of Court of Appeals 4'42 
 
 certificate ai such filing to be procured 442 
 
 certified copy 442 
 
 when filed, takes effect, when 440 
 
 to be attached to application papers 442 
 
 if lost, or destroyed, or refused 442 
 
 Law Schools, qualification of, required 440, 442 
 
 length of school year required 440, 442 
 
 attendance for a school year, equivalent to twelve months 
 
 of law study 440 
 
 ' time of study, how proven 442 
 
 vacations, three months' clerkship during, when allowed. 440 
 if certificate of attendance is lost, destroyed, or refused. . 442 
 
 Oerkship, a regular law clerkship required 437, 440 
 
 in office of a practicing attorney in this State 440 
 
 after eighteen years of age 440 
 
 to be educationally qualified 439 
 
 certificate of commencement of clerkship to be filed by 
 
 attorney 441 
 
 certificate of commencement of elwrkship, what to contain. 441 
 
 clerkship not commenced until certificate so filed 441 
 
 time of clerkship computed by calendar year 441 
 
 vacations during clerkship 441 
 
 clerkship during law school vacations 440 
 
 time of clerkship, how proven 441 
 
 certificate of commencement may be filed nwnc pro tunc. 44i3 
 if lost, destroyed, or refused 442 
 
512 Index. 
 
 RULES, COURT OF APPEALS — Continued. PAGE. 
 
 State Board of Law Examiners, qualifications of applicants to 
 
 be passed upon by 441 
 
 proofs of compliance -with rules must be furnished to. . . . 441 
 if proofs are lost, destroyed, or refused, may accept other 
 
 proofs 443 
 
 compensation of 443 
 
 examinations by, oral or written, or either or both 443 
 
 examinations, when and where to be held 443 
 
 examinations to be uniform 443 
 
 College or university graduate; period of law study required of. 4S7 
 
 must be after graduation 438 
 
 need not pass Regents' examinations 439 
 
 proof of graduation, how made 44/1 
 
 if proof of graduation is lost, destroyed, or refused 442 
 
 degree must be certified to by Board of Eegents, when. . . 447 
 
 RULES, STATE BOARD OF LAW EXAMINERS: 
 
 Applications for admission to be filed with Secretary 446 
 
 when to be filed 44i6 
 
 to state certain requirements 446 
 
 Eesidence for six months prior to application 446 
 
 Residence, to be actual and not constructive 446 
 
 Residence, proof of, how made 446 
 
 Examination fee, amount of 446 
 
 when to be paid 446 
 
 Applicant may be examined in any Department 447 
 
 to be certified to Department of residence 447 
 
 to entitle papers in Department of residence 447 
 
 College or university graduate must have degree certified to by 
 
 Board of Eegents, when 447 
 
 if certification is refused 442, 447 
 
 Application papers to be attached together 44& 
 
 to be indorsed 448 
 
 to be entitled 448 
 
 form of title 448 
 
 Vacations, beginning and end of each to be stated in applica- 
 tion 448 
 
 Law School, beginning and end of each term to be stated in ap- 
 plication 448 
 
 Attorneys, of other States, special proof required of 448 
 
 Examination, divided into two groups 448 
 
 Ee-examination, after failure 446 
 
 RULES, SUPREME COURT: 
 
 General Rule 444 
 
 iCertiflcate of law examiners to be filed 444 
 
Index. 513 
 
 RULES, SUPREME COURT — Continued. page. 
 
 Evidences of good moral character to be filed 445 
 
 Second ODepartment; special rule 4Hi 
 
 Third Department; special rule 418 
 
 STATUTES REGULATING ADMISSION TO THE BAR: 
 
 Attorneys or counselors, qualilfloations for 424 
 
 must be a citizen 4Sii 
 
 of full age 4J24 
 
 residence 425 
 
 must be examined and licensed 426 
 
 State Board! of Law Examiners created 422 
 
 number of 4124 
 
 qualifications of 4'.24 
 
 to be appointed by the Court of Appeals 422 
 
 term of office of 424 
 
 to certify those who pass to the Appellate Division . . 425, 4'38 
 
 to report to 'Court of Appeals 42i5 
 
 uniform examinations provided for 443' 
 
 court to fix compensation of examiners 422 
 
 EKaminations, number of, in each year 424 
 
 examination fee limited 4BS 
 
 three examinations for one fee 485 
 
 applicants for admission must pass examination 425 
 
 applicants for admission must comply with rules 426 
 
 applicants for admission must reside in Department six 
 
 months 42S 
 
 applicants must be of good moral character 422, 430 
 
 lEace, no cause for refusing examination or admission 42'6 
 
 Sex, nO' cause for refusing examination or admission 42'6 
 
 Fraudulent act or representation cause for revocation of license. 422 
 Court of Appeals to make provision for admission of persons 
 
 admitted to practice in other States or countries 4)21 
 
 to make rules regulating admission, how changed 42!l 
 
 'Law School graduates, may be excepted from rules 42 1 
 
 Attorney to take constitutional oath 425 
 
 to sulbscribe roll or book of attorneys 425 
 
 to receive eertiificates of admission 42'5, 428 
 
fS 
 
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