on 
 
 JflHn&T 
 
 
 
 : I^^mH ■ 
 
 ffi 
 
 hj „ jISVMHH 
 
 
 JilisHs 
 
 j^^HE 
 
 
 
 
 j~' 
 
 *Enr~; 
 
 1 ^->iffl' I 
 
 
 •' ,£■' 
 
 p. 
 
 ff'i 
 
 
 
 4" 
 
 « 
 
 | 
 
 •-S Tils 
 
 
 
 1 hi ri" 
 
 -•^R^i 
 
 BS3^^^BUs«$£*' ^ ^n^SHfe. "&£ 
 
 
 (^fefW 
 
 HL-."^<fcjjil'i» i V^'~i 
 
 
 
 L^J -J 
 
 
 
 
 •■■ 
 
 ~-* ^^BBHSBHI 
 
 
 E5^^^^^ 
 
 "'•^.■•-'■jI«'^iMi 
 
 -^^Kn^flri RP^? %fe.^L- 
 
 
 
 
 GJnntfll IGatu ^rlfim! Sibrarg 
 
Cornell University Library 
 KFN5082.D17 1905 
 
 Bar examinations (New York) and courses 
 
 3 '1924 021 901 321 
 
A Cornell University 
 J Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924021901321 
 
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; ALSO COURSES OF LAW 
 
 STUDY SUITABLE FOR THE USE 
 
 OF CLERKS IN LAW OFFICES. 
 
 FRANKLIN M. DANAHER, Atnd B. PAtAD 
 
 Member of the New York State noar'a of Law Examiner*. 
 
 SECOND EDITION 
 
 ALBANY 
 
 J. B. LYON COMPANY, PRINTERS 
 
 1905 
 
B 10600 
 
 Copyright, 1904, 
 By FRANKLIN M. DANAHER. 
 
 Copyright, 1905, 
 By FRANKLIN M. DANAHER. 
 
 J. o. LYON COMPANY 
 
 PRINTERS AND BINDERS 
 
 ALBANY, N. Y, 
 
TO 
 
 Hon. William P. Goodelle 
 
 Frank Sullivan Smith, Esq., 
 
 MEMBERS OF THE NEW YOIIK STATE 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 SECOND EDITION. 
 
 We believe that our book has been of benefit to those who 
 followed the methods for its use set forth in the introduction 
 to the first edition. 
 
 We determined at one time to annotate, for this edition, 
 the first 300 .answers, but finally concluded not to, because 
 our labor in that direction would but lighten the task of the 
 student to his detriment. We would be doing the " digging," 
 no other word will so aptly describe the process, that he 
 should do, and as hard and persistent work along the line of 
 investigation will alone produce results, we expect him to 
 do all the " following up " of the cases cited that may be 
 necessary to the thorough understanding of the problems set 
 forth. 
 
 We have added 100 additional questions and answers 
 
 which we trust will be of assistance to some seekers after 
 
 knowledge in the law. 
 
 Albany, N. Y., November, 1905. 
 
 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 knowledge 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 
 
2 Bab Examinations and Courses of Study. 
 
 serving a clerkship in a law office 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. 
 
 We have written and said much upon the necessity of law- 
 school training as a preparation for the Bar under modem 
 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 lay 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 examinations 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 1 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 the 
 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 
 
Bah Examinations and Courses of Study. 3 
 
 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 on 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 
 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, abridg- 
 ing, distinguishing, differentiating and limiting the same, so 
 that to-day he who can master thoroughly any one of its 
 great subdivisions, has accomplished that which but few have 
 done. The future of the practice must be one of specializa- 
 tion; 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 beyond 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 pecu- 
 niary 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 bilk 
 through the pressure of Tinineorporated mercantile agencies 
 and the terrorisms of unfavorable financial reports; they 
 advertise to prepare briefs, in fact, what are they not doing 
 
4 Bab Examinations and Courses of Study. 
 
 to the financial and professional detriment of the " average " 
 lawyer? 
 
 We are not pessimistic; the only way to avoid a danger 
 3s to know it, and what we have said above is but to call a 
 Ihalt in the enthusiasm of the average student in law, and to 
 point out a few of the pitfalls which impede his path to the 
 fatuous fame and wealth of the profession, and to make him 
 realize that if his studies thus far have been but for the pur- 
 pose of passing his bar examinations that he 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 law. 
 
 THE SUBJECTS OF EXAMINATION. 
 
 Applicants are examined in the following subjects: 
 Pleading and Practice, Real Property, Contracts, Partner- 
 ship, Negotiable Paper, Principal and Agent, Principal and 
 Surety, Insurance, Bailments, Sales, Evidence, Criminal 
 Law, Torts, "Wills, Equity, Corporations, Domestic Relations, 
 Constitution of New York State. 
 
 Sixty-six and two-thirds per cent, of correctness is re- 
 quired. This percentage is calculated upon the entire paper 
 and not upon the particular subjects, so that strength in 
 some may compensate for weakness in others. All questions 
 are of equal value except those in Practice and Pleading and 
 Constitution, which are rated at but half values, not because 
 they are of less value in fact or should not be studied, but 
 solely because the Law Examiners believe that those subjects 
 will be better understood by the student as he grows older 
 in the practice of the law. Each answer is read and ad- 
 judged with all the care that the importance of the objects 
 and purposes of the examinations demand. The good that is 
 in it is weighed and credited, and the errors therein penal- 
 ized. 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- 
 
Bak Examinations and Courses of Study. 5 
 
 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 States are as foreign to us as are the laws of England, 
 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. 
 
6 Bar Examinations and Courses op Study. 
 
 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 ISTew Tork 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 thet- 
 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. 
 
 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 
 
Bar Examinations and Courses of Study. 7 
 
 give your knowledge on the precis© 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 fine 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 byj 
 shifty, noncommittal, or evasive answers. 
 
 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- 
 
8 Bab Examinations and Courses of Study. 
 
 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 be 
 directed, might be of some educational value, and it is issued 
 from that point of view only. 
 
 We give six complete question papers, or three hundred 
 of the questions heretofore used by the State Board of Law 
 Examiners, and the answers thereto, as the writer under- 
 stands them, and he is alone responsible for their correctness. 
 
 Three hundred questions may not be many, but they are 
 sufficient for the purposes for which this book was 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 
 thereby, and to direct his attention to his deficiencies and 
 to new channels of research. If he will study, digest, and 
 correctly answer the three hundred 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 constituted, 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. We 
 have selected an authority which upholds each answer given, 
 
Bab Examinations and Courses of Study. 9 
 
 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. Read a ques- 
 tion and write on it as you would be compelled to do at an 
 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 
 
10 Bab Examinations and Courses of Study. 
 
 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 °ud Answers," no mat- 
 ter by whom compiled or written. 
 
 PRACTICE ON ADMISSION. 
 
 Each applicant who has been examined is notified of the 
 result thereof in about two weeks after the examination has 
 been held, by written notice directed to his home address as 
 the same is sworn to in his application papers. 
 
 One who fails is so informed; he is entitled to a re-ex- 
 amination, provided he notifies the Secretary of the State 
 Eoard of Law Examiners, in writing, of his desire therefor, 
 at least fifteen days before the examination at which he in- 
 tends to reapply. He cannot, however, be re-examined until 
 after the expiration of three months from the time that he 
 failed. 
 
 To the applicant who has been successful, a certificate 
 signed by the members of the State Board of Law Examin- 
 ers is mailed, certifying his name to the Appellate Division, 
 in which he has resided for the six months immediately pre- 
 ceding his examination as the same appears in his applica- 
 tion papers. The certificate is to the effect that the appli- 
 cant has satisfactorily passed the examination prescribed by 
 the Rules of the Court of Appeals, regulating admission to 
 the Bar in this State, and has complied with their provisions. 
 
 The applicant is required to produce and file with the 
 Clerk of the Appellate Division to which he is certified (none 
 other has jurisdiction) the above certificate of the State 
 Board of Law Examiners, and a certificate of good moral 
 character, signed by the attorney with whom he has passed 
 his clerkship, or by some attorney of the place in which he 
 resides. Such certificates as to character are not conclusive 
 and the Court may make further examination and inquiry in 
 regard thereto. 
 
Bak Examinations and Courses of Study. 11 
 
 On the above certificates the candidate is admitted to the 
 bar, provided he subscribes the roll of attorneys and takes 
 the constitutional oath of office. He is also further re- 
 quired as a condition precedent to his practicing law in this 
 State, to register in the office of the Clerk of the Court of 
 Appeals, as required by chapter 165 of the Laws of 1898, as 
 amended by chapter 225 of the Laws of 1899. (For Form 
 of Oath, vide p. 228.) 
 
 The procedure on admission in the various departments 
 varies somewhat. The special practice in each department, 
 as it now obtains, is as follows: 
 
 FIRST DEPARTMENT. 
 
 In this department the Appellate Division appoints annu- 
 ally a Committee on Character to which is referred by the 
 court all applications for admission to the Bar, and which is 
 required to report to the Court, specifically as to the good 
 moral character of each applicant. 
 
 This Committee after each examination gives notice in 
 the New York Law Journal, of its meeting in substantially 
 the following form: 
 
 Appellate Division of the Supreme Court First Department. 
 
 COURT HOUSE, MADISON SQUARE. 
 
 The Committee on Character for the year 19 . ., will meet 
 
 in the above court house on at .... 19 . All applicants 
 
 for admission to practice as attorneys and counselors must 
 attend in person before the Committee and present a certifi- 
 cate of one or more members of the Bar known to the Com- 
 mittee, which certificate must state that the applicant is, 
 to the knowledge of the members certifying, of good moral 
 character, and must set forth in detail the facts upon which 
 such [knowledge is based. 
 
 The Committee call special attention to the requirement 
 that there shall be a certificate from a lawyer known to 
 some member of the Committee. It is important that this 
 certificate shall state facts and the acquaintance with the 
 
12 Bar Examinations and Courses of Study. 
 
 applicant which justifies the opinion expressed as to 
 character. 
 
 Dated, New York, 
 
 > 
 
 .• • > 
 
 j 
 
 Committee. 
 
 It is usual to notify the applicant then and there if his evi- 
 dences are sufficient. Notice is also given at that time of the 
 day on which the successful ones will be sworn in, at which 
 time and place they appear in person before the Appellate 
 Division, and take and subscribe the required oath of office. 
 
 SECOND DEPARTMENT. 
 
 In this department the Appellate Division has adopted 
 the following special rule: 
 
 Rule Relating to the Admission of Attorneys in the Second 
 Department. 
 
 " Notice of the time of application for admission as attor- 
 neys by those who have passed the examination prescribed by 
 the Rules of the Court of Appeals, will be published 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." 
 
 Notice of the time of application for admission as attorneys 
 is published in the " Law Journal " and mailed to each 
 applicant by the Clerk of the Appellate Division, at which 
 time each must file with the Clerk of the Appellate Division 
 the certificate of the State Board of Law Examiners and evi- 
 dence of good moral character, and also appear in. person 
 before the Committee to furnish such information as the 
 Committee may desire from them. 
 
 The notice is substantially in the form following : 
 
Bak Examinations' and Courses of Study. 13 
 
 Court Notice. 
 
 SUPEEME OOUET — Appellate Division. 
 
 Second Judicial Department. 
 
 The Committee on Character for the year 190 . . will meet 
 in the court room of the Appellate Division, Borough Hall, 
 
 Brooklyn, , at 9 a. m. 
 
 All applicants for admission to practice as attorneys and 
 counselors must attend in person before the Committee and 
 present certificates, duly acknowledged, of one or more mem- 
 bers of the Bar, personally and well known to the Committee, 
 which certificates must state that the applicant is, to the 
 knowledge of the members certifying, of good moral char- 
 acter, and must set forth in detail the facts upon which such 
 knowledge is based. 
 
 The Committee call special attention to the requirement 
 that there shall be a certificate from a lawyer known to some 
 member of the Committee. It is important that this cer- 
 tificate shall state facts and the acquaintance with the appli- 
 cant which justifies the opinion expressed as to character. 
 
 Dated, Kings County, 1ST. Y., , 190. .. 
 
 > 
 
 • • j 
 
 > 
 
 Committee. 
 
 After the Committee on Character has examined each ap- 
 plicant, it reports the names of those whom it recommends 
 to the Court for admission, who are notified by the Clerk of 
 the time and place of their being sworn in, where they must 
 attend in person. 
 
 THIRD DEPARTMENT. 
 
 In this department the Court, does not appoint a Committer 
 on Character ; the judges personally examine and pass on the 
 certificates of good moral character filed by the applicants, 
 which should be in the form prescribed by the rules in the 
 First and Second Departments, but neither verified nor ac- 
 knowledged. 
 
 An applicant for admission should file his certificate from 
 
14 Bab Examinations and Courses of Study. 
 
 the State Board of Law Examiners and of good moral char- 
 acter with the Clerk of the Court on or before the first day of 
 the term, and appear in Court in person on that day. If his 
 certificates are approved, he is at once admitted and sworn in. 
 
 FOURTH DEPARTMENT. 
 
 The Clerk of the Court mails to each successful applicant 
 a notice of which the following is a copy : 
 
 Cleek's Office, 
 
 Appellate Division 
 
 of THE 
 
 Supreme Couet, 
 
 Foueth Depaetment. 
 
 Rochester, , 190. .. 
 
 Deae Sie. — Your name has been reported favorably by 
 the Board of Law Examiners. You will please send to this 
 office IMMEDIATELY, the certificate of said Board and 
 TWO AFFIDAVITS as to good moral character. Please 
 place the certificate of Board on the OUTSIDE properly 
 backed. 
 
 You may appear on the day of at 2 o'clock, 
 
 to be sworn in. 
 
 Please acknowledge receipt of this notice. 
 
 Clerk. 
 
 The Court appoints no Committee on Character, the judges 
 personally make the necessary investigation into the moral 
 character of the applicants. 
 
 All appear, unless notified to the contrary, on the day 
 named in the notice and are sworn in. 
 
 We are indebted to Ellis J. Staley, Esq., of the Albany 
 County Bar for much valuable assistance in the preparation 
 of this book. 
 
 Albany, March, 1904. 
 
 FRANKLIN M. DANAHER. 
 
QUESTIONS 
 
 STATE BOARD OF LAW EXAMINERS 
 
 EXAMINATION OF APPLICANTS 
 
 FOB 
 
 ADMISSION TO PRACTICE AS ATTORNEYS AND COUNSELLORS-AT-LAW 
 
 HELD IN AND FOB THE 
 
 THIRD AND FOURTH JUDICIAL DEPARTHENTS 
 
 or THE 
 STATE OF NEW YORK 
 
 AT 
 
 Albany and Rochester, January 16, 1902 
 
 WILLIAM P. GOODELLE 
 FRANK SULLIVAN SMITH 
 FRANKLIN M. DANAHER 
 
 State Board of Law Examiners 
 
EXAMINATION RULES. 
 
 1. Each applicant must commence his answer paper with 
 answers to the following questions : 
 
 (a) What is your name, age, residence and post-office 
 
 address ? 
 
 (b) Where and with whom have you pursued your legal 
 
 studies ? 
 
 (c) What educational advantages did you have before 
 
 beginning the study of law ? 
 
 2. Write answers in the order of the questions. Do not 
 copy the questions, but write the number of each question on 
 the margin of the paper, and under its proper subdivision. 
 Write only on one side of the paper. Write your name and 
 the number of the page on each separate page of your paper. 
 
 3. The written examination will be held in two sessions of 
 four hours each ; no further time will be given. Each appli- 
 cant must return the examination papers with his answers 
 thereto. Unless this is done the Board will not pass on his 
 application. 'No applicant shall enter the examination 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 Eoard. 
 
 4. Give your reasons for each answer. Answer the 
 questions first, then give your reasons. Do not give informa- 
 tion that is not asked for. 
 
18 Bar Examinations and Courses of Study. 
 
 THIRD AND FOURTH JUDICIAL DEPARTMENTS. 
 Albany and Rochester, January 16, 1902. 
 
 EXAMINATION PAPER. 
 Forenoon — Four Hours. 
 
 1. Draw complaint, without verification, for an action for 
 assault and battery in the County Court, demanding the full 
 amount 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 
 water. B answered by a general denial, and also set up 
 affirmatively 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 jointly for assault 
 and battery. The complaint stated a cause of action against 
 
Bab Examinations and Courses of Study. 19 
 
 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. C 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 State's prison. 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. 
 Eifty 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 
 
20 Bar Examinations and Courses of Study. 
 
 whom the specified property belongs. Each claims to own 
 all. What do yoti 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 C . 
 at once entered upou-aird" occupied the entire premises to- 
 gether, and had a child born unto them. A died intestate, 
 leaving C, 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 ? 
 
 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 C 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 the 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 as 
 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 
 
Bak Examinations and Coukses of Study. 21 
 
 capital of the new firm $40,000 in cash. The business did 
 not prosper and thereafter the firm failed, owing $100,000 
 to firm creditors, over and above all assets. State the re- 
 spective liabilities of A and B under the circumstances dis- 
 closed. I 
 
 13. 
 
 13. A and B were copartners in trade. A died. What 
 are the respective tights of A's representatives and B under 
 the circumstances? 
 
 14. 
 
 14. On January 10, 1900, Eichard Eoe, for value, duly 
 executed and delivered to John Doe, a paper in the form fol- 
 lowing : 
 
 Adbany, K Y., January 10, 1900. 
 For value received I promise to pay to the order of John 
 Doe $1,000 on his twenty-first birthday, with interest, 
 
 (Signed) Eichard Eoe. 
 
 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 same 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 C, a holder in due 
 course, not a party to the alteration. The note not having 
 been paid at maturity, O sued A thereon. The above facts; 
 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, 
 
22 Bae Examinations and Coubses 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 !N"o. 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 would pay $5,000 in cash to B on January 1, 1901. 
 On January 1, 1901, C 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 hfm 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 
 
Bar Examinations and Courses of Study. 23 
 
 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 burns. 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 owner 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 
 
24 Bar Examinations and Courses of Study. 
 
 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 v 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 Coubses of Study. 25 
 
 THIRD AND FOURTH JUDICIAL DEPARTMENTS. 
 Albany and Rochester, January 16, 1902. 
 
 EXAMINATION PAPER. 
 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 ear and its appliances were 
 in an unsa'fe 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 ? 
 
 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 will 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 
 
26 Bar Examinations and Courses of Study. 
 
 did not take away 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, under 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 1 
 
 31. 
 
 6. A with felonious intent to burn the barn of B pro- 
 cured camphene and other combustibles and placed them in 
 his room and then went and solicited to go and get the 
 articles mentioned and use them in burning the barn of B. 
 promised but neither did anything to that end or ever 
 intended to. What, if any, crime is A guilty of? 
 
 32. 
 
 V. A married B, and while she, B, was living and his 
 lawful wife he married 0; then B died and afterward he 
 married D and for his last marriage he was indicted for 
 bigamy. Guilty or not guilty. Give your reasons. 
 
Bab Examinations and Coueses of Study. 27 
 
 33. 
 
 8. John Doe was put upon trial on an indictment for as- 
 sault in the second degree against A. Doe being a witness 
 in his own behalf, on cross-examination was asked if he did 
 not, at 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. Will the conviction stand? State 
 your reasons. 
 
 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 the circumstances? State fully. 
 
 35. 
 
 10. A servant sued his master for negligence. On the 
 trial it appeared that the servant was directed to do a par- 
 ticular piece of work that required special knowledge and 
 skill 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? 
 
28 Bar Examinations and Courses 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 rye, and in due course of husbandry, reaped and 
 stored in his barn 1,000 bushels thereof. B demanded one- 
 half of the rye as his share of the 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 
 you to sign it as a witness," arid B did so, then and there in 
 A's presence. A laid the will aside and forgot about it for 
 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 will. 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 
 surplus income to be added to the principal until John be- 
 came of age. After that period, John was to have the in- 
 
Bar Examinations and Courses of Study. 29 
 
 come of the whole fund until 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 
 asks your opinion as to the validity of the trust. What 
 would be your 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 was 
 ignorant of her husband's fraud, and in entire good faith, 
 demands the 'amount of the pohcy 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 sell and deliver, as his 
 own, A's horse to O 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 O, and consults you as 
 to his position. What would be your advice'^ 
 
 f ^ 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 
 
30 Bab Examinations and Courses or Study. 
 
 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 why? 
 
 44. 
 
 19. Three railroad companies of the State of New York, 
 X, Y, and Z, are consolidated and merged into one corpora- 
 tion. All 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 stockholders 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 
 you 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 former 
 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 
 
Bab Examinations and Courses of Study. 31 
 
 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 born of the second marriage. After the birth of 
 th ) child A returns, and A, B and C, ask your advice as to 
 the character of the second marriage, whether the child is 
 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 insurance 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 lanti upon the following terms. For ten 
 years the land was to be used by B solely for farming pur- 
 poses, and A was to receive an annual rental of $500. It was 
 provided in the 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 carry 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 all ore mined and shipped of twenty-five cents 
 
32 Bab Examinations and Coueses of Study. 
 
 per ton. A dies, and his heirs claim that the lease is in- 
 valid under the Constitution of the State of New York. 
 Your advice is asked. What do you advise? 
 
 50. 
 
 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, in 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 your 
 reasons. 
 
Bab Examinations and Courses of Study. 33 
 
 FOR THE STATE OF NEW YORK. 
 
 New York and Syracuse, October 20, 1903. 
 
 EXAMINATION PAPER 
 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 
 note. Omit verification. c 
 
 52. 
 
 2. State what must be shown in order to obtain 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 account % 
 
 *S 
 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 
 
 3 
 
34 Bab Examinations and Ooueses op Study. 
 
 a judgment in favor of the 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. At that 
 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 he 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 ? 
 
Bab Examinations and Ooueses of Study. 35 
 
 59. 
 
 9. A died intestate leaving real property. His only Leirs- 
 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 i 
 
 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. j 
 
 61. 
 
 11. Two members of the New York Produce Exchange, 
 X and Y, 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. 
 
 62. 
 
 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- 
 
36 Bab Examinations and Courses of Study. 
 
 ship security, lie 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? 
 Jf 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. 
 
 64. 
 
 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 C'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 ; C then 
 indorsed it to D, a bona fide holder for value. Upon the 
 maturity of the note paid the amount thereof to D and 
 took up 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. 
 C sold B supplies on time, not knowing of A's connection 
 with the business, relying solely upon B for payment. B 
 did not pay C the amount due him, and upon learning of A's 
 
Bak Examinations and Coukses of Study. 37 
 
 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 0, a merchant. B, 
 without the knowledge of the X Co., knowingly 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 0. B refused to pay. 
 In an action brought by C*"against B, the latter successfully 
 defended on the ground of infancy. 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 
 of his infancy. Judgment for whom, and why ? 
 
 69. 
 
 19. A and B made their joint promissory note for $5,000 
 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 in writing. The note 
 was not paid and C brought suit upon it against B and I> 
 who ask your advice. H-ave they or either of them a good 
 defense ? State fully, with your reasons. 
 
 70. 
 
 20. A policy was issued on the life 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- 
 
38 Bab Examinations and Coueses o:f Study. 
 
 ried 0, who was his wife at the time of his death. The first 
 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 grounds 
 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 runaway 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. 39 
 
 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 fid& 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 C 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. Belying 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 % 
 
40 Bab Examinations and Courses of Study. 
 
 FOR THE STATE OF NEW YORK. 
 New York and Syracuse, October 20, 1903. 
 
 EXAMINATION PAPER. 
 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 premises 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- 
 
Bar Examinations and Courses or Study. 41 
 
 served by the 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 ruling 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, under circumstances as to pre- 
 clude any presumption of interest or bias, that B, his son, 
 was born 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 witness 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. 
 
 1 81. 
 
 6. A burglar, while engaged in burglarizing B'a house, 
 without a design to effect death, but solely in aid of his es- 
 
42 Bab Examinations and Courses 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 jointly 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 C, who knew 
 that A had stolen the coat. Of what crime is guilty of, 
 if any? If not any, why not? 
 
 84. 
 
 9. Doe and Koe, meeting on a highway, had a dispute. 
 Doe, while standing within striking distance of Roe, 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 
 ivou with this axe," but desisted and did not strike. Koe 
 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 known 
 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 Courses of Study. 43 
 
 gate in the fence on either side. 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 
 against 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 C, 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 C, 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 will, 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 they 
 complied. A contest has arisen between Mary, the sister, 
 and John, the brother, of the deceased, Mary claiming to 
 
44 Bak Examinations and Courses of Study. 
 
 take all the property of the deceased brother, and John 
 claiming half of the property under the statute of distri- 
 bution. Who wins and why? State 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 
 sell him 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 suit 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 interest, 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? If so, what? Answer fully, stating your 
 reasons. 
 
 82. 
 
 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 will whereby he devised the mortgaged lands to 
 
Bab Examinations and Coueses of Study. 45 
 
 G. asks you how lie can rid his 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? f 
 
 95. J^& ui " 
 
 20. The board of directors of a domestic corporation, 
 which had no surplus profits coming from its business, 
 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 any, liability exists therefor? What do gou advise? 
 
 96. 
 
 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- 
 
46 Bab Examinations and Courses of Study. 
 
 ing no property, but debts to tbe amount of $5,000. There 
 are .$7,500 due from tbe insurance company upon tbe policy 
 aforesaid. To whom will it go ? 
 
 97. 
 
 22. A was tbe illegitimate cbild of B and C. After its 
 birtb B and O intermarried, and thereafter B, the father, 
 died intestate, leaving O, his widow, and A, tbe cbild, and 
 X, bis father, him 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 tbe 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 bad title, provided only that the 
 consent of the commissioner of highways in that district 
 be obtained by tbe 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 ? 
 
Bab Examinations and Courses oi? Study. 47 
 
 FIRST AND SECOND JUDICIAL DEPARTMENTS. 
 New York and Brooklyn, April 22, 1902. 
 
 EXAMINATION PAPER. 
 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 whereabouts. [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. You 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 % 
 
48 Bae Examinations and Courses of Study. 
 
 106. 
 
 6. Dn the trial of a civil action in a court of record, 
 how many jurors may each party challenge peremptorily ? 
 
 107. 
 
 7. The lease of a store provided that the landlord would 
 make all necessary 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 under 
 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 on B's death, with power to B, dur- 
 ing his life, to sell the same and devote the proceeds to his 
 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 \ 
 
 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 during 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 Examinations and Courses of Study. 49 
 
 traveling, 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 0, 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 C 200 bushels of oats at 50 cents per bushel. O 
 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 C, 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 C 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 amount 
 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. 
 
 4 
 
50 Bar Examinations and Courses of Study. 
 
 114. 
 
 14. A was the holder of a promissory note, of which B was 
 the maker and 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 would " let his name be 
 on it, and let it be as it was." To this assented. At the 
 maturity of the note, A did not present the note for payment 
 nor give notice to of non-payment. At the end of the year 
 the note was not paid and A brings suit against as indorser. 
 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 promis- 
 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, O, with instructions to 
 examine the title to the real estate and approve or disapprove 
 the loan. O 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. O 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, O, was notice to B. Judgment for whom, 
 and why? 
 
Bar Examinations and Courses of Study. 51 
 
 117. 
 
 It. A passenger on a railroad train angered the conductor 
 of the train by 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 debts. 
 Thereafter a firm creditor, with knowledge of the facts, and 
 of B's agreement, took B's negotiable promissory note, pay- 
 able 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 under the circumstances 2 
 
 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 C as surety, and again entered B's employ. 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 defense or not ? If so, what ? If not, why not ? 
 
 120. ' • "» 
 
 20. In 1896 a husband insured his 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 
 
52 Bar Examinations and Coubses of Study. 
 
 the company in consideration of $500, paid therefor, which 
 canceled the same. The hushand died soon thereafter. 
 The wife knew nothing of the policy until after the hus- 
 band's death. She now consults you. What do you advise 
 as to her rights, if any, under the circumstances 2 
 
 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 the company had not insured the boots 
 and shoes in 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 the expiration of the month. A, not 
 having quite finished his contemplated work, thought to 
 keep the horse a little while longer, which, without the 
 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 plaintiff 
 proved the delivery of his carriage to the defendant for stor- 
 
Bak Examinations and Courses of Study. 53 
 
 age during the winter for hire, a demand for the return 
 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 was 
 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 been delivered to B, C 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 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 O, which B indorsed " without re- 
 course." Both A and B honestly supposed at the time of 
 the transaction that O was abundantly responsible, but it 
 turned out that he was then insolvent, and the note worth- 
 less. A proffers back the note 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 
 theory? 
 
54: Bab Examinations and Coukses of Study. 
 
 FIRST AND SECOND JUDICIAL DEPARTMENTS. 
 New York and Brooklyn, April 22, 1902. 
 
 EXAMINATION PAPER. 
 Afternoon — Four Hours. 
 
 126. 
 
 1. On the trial of an action, a question of fact was pre- 
 sented. The plaintiff was sworn as a witness on his 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 asked to go to the jury. 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 be, 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 is 
 mow actually engaged therein, in the same line of, business, 
 
Bar Examinations and Coubses of Study. 55 
 
 in competition with A. A consults gou. What would he 
 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 your 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 appointment 
 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. 
 
 1. 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 the 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 
 «ase, the prisoner's counsel moved for his discharge on the 
 
56 Bab Examinations and Courses of Study. 
 
 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 
 barns. 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 Hmowledge 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 him 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 
 
Bar Examinations and Courses of Study. 57 
 
 injury to the child and consults you. Do you advise him 
 that he has or has not a good defense? State fully your 
 reasons. 
 
 136. 
 
 11. A entertained a dislike for B, a merchant, and O, his 
 coachman, and, prompted by malice, A said of B and 0, 
 speaking to a number of people, "Although B rides in his 
 carriage and C 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 children 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 drawing a line through the 
 
58 Bar Examinations and Courses of Study. 
 
 word with his pen, leaving, however, the word legible. He 
 then wrote in the will over the obliterated word " sons " 
 the word " daughters " with 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 bjj 
 the testator since the execution of th© 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 Tork, 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 C 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, under 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's mortgage. C 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 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 th© land 
 which he had formerly conveyed to B. C took the mort- 
 
Bar Examinations and Courses of Study. 59 
 
 gage in good faith and without knowledge of the deed froir 
 A to B. begins a foreclosure of his mortgage. B asks 
 you 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 manufactur- 
 ing corporation, A subscribed for 100 shares of the capital 
 stock at $100 per share, but paid in 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 that A 
 owed that amount upon his subscription to the stock held 
 by him when B's debt was contracted. A defends. [Who 
 wins? Answer fully, with your reasons. 
 
 144. 
 
 19. A made a promissory note, payable to his own order, 
 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 by 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 the note. 
 Judgment for and against whom, and for what reason? 
 
 145. 
 
 20. A owned $10,000 full paid stock 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 day9 
 after the termination of his services, as required by the 
 statute, that he intended to hold him liable for his debt of 
 $500, and without taking any other proceedings, at the ex- 
 piration of thirty days more, he brought action against A 
 for his claim. State whether or not B can recover in the 
 action. If not> why not? 
 
60 Bar Examinations and Ooueses of Study. 
 
 146. 
 
 21. "While 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 born 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 duly sentenced to imprisonment for Me, on a convic- 
 tion for murder ia 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 
 for 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. 
 
 23. 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 
 
Bar Examinations and Courses of Study. 61 
 
 charged in the 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 taken and the jury found the defendant guilty 
 of murder in the first degree. Will the conviction stand 
 or not, and for what reason? State fully. 
 
 150. 
 
 25. John Doe had been duly committed to jail to await 
 tbe action of the grand jury on a charge of arson. You 
 are his counsel. Doe has made application to the Sheriff 
 having him in custody, to be allowed a private interview 
 with you as his counsel, which the Sheriff has absolutely re- 
 fused. What, if any, right has John Doe in the premises, 
 and, if any, on what is it based and how will it be enforced? 
 
62 Bab Examinations and Courses ov Study. 
 
 THIRD AND FOURTH JUDICIAL DEPARTMENTS. 
 Albany and Rochester, June u, 1902. 
 
 EXAMINATION PAPER. 
 
 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. Tour 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. t What do you advise him \ State fully 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 summons 
 having been personally served upon the defendant, within 
 
Bah Examinations and Courses of Study. 63 
 
 the 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 counsel to take to ob- 
 tain judgment against B? State fully,. 
 
 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 of a house and lot. Upon the marriage 
 of his nephew B, A said to B, " I hereby give you this house 
 and lot and will deed 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 ? 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 shaft- 
 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 
 
64 Bab Examinations and Courses of Study. 
 
 each claim the machinery. "What are their rights re- 
 spectively 2 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 2 If so, 
 why 2 If not, what should B have done 2 
 
 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, Eichard Boe." 
 
 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 2 Why 2 
 
Bar Examinations and Courses of Study. 65 
 
 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 assented, and performed his part 
 of the agreement. 
 
 1st. What i s th e i e g a i 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: 
 
 " $500. New York, 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 bona fide holder in 
 due course. The note not being paid at maturity, O sued B 
 5 
 
66 Bak Examinations and Cottkses of Study. 
 
 thereon, who answered, admitting the mating, 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 
 C had" any knowledge thereof when he took the note, or that 
 he was not a hona fide holder for value. C demurred to the 
 answer. Judgment for whom, and why ? 
 
 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 use. (Signed) 
 A." 
 
 On the back of the note for A's accommodation 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 C, 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 C 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 
 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 iss.ued therefor to A, and mailed the same to him 
 
Bab, Examinations and Courses of Study. 67 
 
 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 deht to B from 0. When the 
 deht hecame due, was solvent and A called upon B to bring 
 an action upon the same. B neglected so to do, and thereafter 
 became insolvent. B now calls upon A to pay the debt and 
 the latter consults you. What would he your advice under the 
 circumstances disclosed ? 
 
 169. 
 
 19. A and B jointly interested in a transaction, executed 
 a bond with C 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, 
 so 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- 
 
.68 Bab Examinations and Coukses of Study. 
 
 sand 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- 
 stances disclosed ? 
 
 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, 
 
Bar Examinations and Coueses of Study. 69 
 
 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? 
 
 175. 
 
 25. A met B and said to him, " For what will you 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 under the circumstances. What would be your advice \ 
 
70 Bab Examinations and Coueses of Study. 
 
 THIRD AND FOURTH JUDICIAL DEPARTMENTS. 
 Albany and Rochester, June u, 1902. 
 
 EXAMINATION PAPER. 
 Afternoon — Four Hours. 
 
 176. 
 
 1. Upon the trial of an action against A, B and 0, former 
 members of a firm which had been 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- 
 
Bab Examinations and Courses of Study. 71 
 
 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 Ihe 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 
 0, 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 C 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 
 
72 Bab Examinations and Coueses of Study. 
 
 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 
 officer having him 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 his 
 influence in his behalf if the prisoner should make 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 his 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 his valise 
 down on the sidewalk and was looking for a certain house 
 on the street. A Assaulted C 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 Examinations and Courses of Study. 73 
 
 it would have escaped the storm. What do you say about the 
 liability 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, C 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. 
 
7i Bab Examinations and Cotjeses or 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 will. 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 0, 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 Study. 75 
 
 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 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. Who wins? State your reasons, 
 and the equitable maxim involved. 
 
 191. 
 
 16. A holds a mortgage upon three parcels of land. The 
 owner sells one parcel to B, thereafter another to 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, 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 cargo 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? 
 What 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, 
 
16 Bab Examinations and Coueses of Study. 
 
 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. Tour 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 Study. 77 
 
 reason that he had spent it and therefore it is impossible for 
 him to do so. Can he, under the circumstances, 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 
 T 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 the crime, found guilty, and sentenced to 
 prison. "What is your opinion as to the validity of tha 
 sentence? Give your reasons. 
 
78 Bab Examinations and Courses of Studt. 
 
 FIRST AND SECOND JUDICIAL DEPARTMENTS. 
 
 New York and Brooklyn, June 14, 1902. 
 
 EXAMINATION PAPER. 
 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. Tou 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. 
 What should be the ruling of the Court ? State fully with 
 your reasons. 
 
Bab Examinations' and Courses of Study. 79 
 
 204. 
 
 4. When is a reply necessary, and what is the effect of 
 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. 
 
 206. 
 
 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 by, what 
 authority can you prevent it? State fully. 
 
 207. 
 
 7. A deed of conveyance of real estate situated in New 
 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 
 O, 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 advise 
 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 your 
 ^reasons. 
 
80 Bae Examinations and Cotteses 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. O 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 
 
Bab Examinations and Coueses of Study. 81 
 
 his said conduct and declarations. Will recover 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. New Yoke, June 1, 1901. 
 
 " Six months after date, for value received, I promise to 
 pay to A, or bearer, five hundred 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's 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 date. C and D immediately indorsed 
 the note in and by their firm name, and discounted the same 
 at the X Bank. 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 0. X Bank 
 sues both O and D as indorsers. O defends. Judgment for 
 whom and on what grounds? 
 
 216. 
 
 16. A, as agent for and under the direction of B, employed 
 O to reconstruct a coach belonging to B for a stated sum. 
 G 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 O inquired, and so was in ignorance 
 of the name and identity of A's principal. When C had 
 nnished the work he called upon A for his pay. A disclaimed 
 liability therefor and then disclosed B as his principal, for 
 
 6 
 
82 Bab Examinations and Cotjbses 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. C, 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 C first learned that B had been acting 
 for both of them under an agreement from each to pay him 
 a commission, and both A and 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 O 
 to become his surety for the debt, and thereupon B surren- 
 dered the collateral to A. C 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 that 
 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 O. The debt was not paid at maturity and A,- on de- 
 mand of B for its payment, extinguished the same by the 
 
Bar Examinations and Courses of Study. 83 
 
 payment of one-half of its amount to B. The surety, now 
 sues for $10,000, the amount of the original debt. What 
 would he your advice to under the circumstances? 
 
 220. 
 
 20. A took out a policy of insurance on his life in the 
 sum of $10,000, payable on his death to B, an old college 
 friend, who was no.t 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 offered to return to A's estate all the 
 premiums paid, with interest. B consults you. What would 
 be your advice? 
 
 ■ f ' 221. 
 
 21. A policy of fire insurance on B's dwelling-house pro- 
 vided " that this entire policy * * * shall 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 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- 
 
84 Bab Examinations and Coubses of Study. 
 
 empted him from liability for loss or damage thereto by fire. 
 Subsequently the goods were destroyed by fire while in 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 wateh 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 its 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 circumstances? 
 
Bab Examinations and Coueses of Study. 85 
 
 FIRST AND SECOND JUDICIAL DEPARTMENTS. 
 
 New York and Brooklyn, June 14, 1902. 
 
 EXAMINATION PAPER. 
 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 prose- 
 cution asked that the case be sent to the jury. What should 
 be the decision of the Court, and why ? 
 
 228. 
 
 3. A brings an action against B to recover damages in- 
 flicted by B on 0, his wife, which caused her death. Upon 
 the trial A was asked to state a conversation between him and 
 0, 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. 
 
86 Bak Examinations and Coubses of Stuby. 
 
 229. 
 
 4. In preparing a case for trial, as counsel for the plaintiff, 
 you have interviewed a man who is cognizant of certain facts 
 in the case. He has stated to you that he saw the defendant 
 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 : " !No, 
 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 
 
Bar Examinations and Courses of Study. 87 
 
 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 wagon and tries to escape, hut 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 he charged ? 
 Give your reasons. 
 
 233. 
 
 8. Upon the trial of a prisoner for hurglary 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- 
 
 f 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. 
 
 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 C to obtain possession of the horse. If A had de- 
 
88 Bar Examinations and Courses of Study. 
 
 fended, could he have prevented judgment, and has 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). His will 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 born 
 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,. 
 
Bar Examinations and Courses of Study. 89 
 
 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 
 
90 Bae Examinations and Ooueses of Study. 
 
 his wife without 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 thrown 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 c btain the names thereof. What do you say \ 
 
 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 ? 
 
Bab Examinations and Coueses of Study. 91 
 
 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 reasons, 
 
 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 office 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 
 
92 Bak 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. 
 
Bab Examinations and Coubses of Study. 93 
 
 FOR THE STATE OF NEW YORK. 
 New York and Syracuse, October 14, 1902. 
 
 EXAMINATION PAPER. 
 Forenoon — Four Hours. 
 
 251. 
 
 1. Your client is sued for goods sold and delivered. He 
 brings you the complaint and a receipted bill for the account 
 therein 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 unincorporated 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 2 
 
 254. 
 
 4. Two executions against the property of X, a judgment 
 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 
 
94 Bab Examinations and Coubses of Study. 
 
 $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 ; 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 himself 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 E, respectively, then the fee to G. Give your 
 opinion as to the effect and validity of the deed. 
 
Bar Examinations and Coubses of Study. 95 
 
 259. 
 
 9. A, being about to purchase an estate from 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, C, 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 put 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 couM not recover because of the condition con- 
 tained in the bill of" lading. "Who wins ? Why ? Give your 
 reasons. 
 
 281. 
 
 11. On July first, A, B & Co., brokers, doing business in 
 New York city, wrote to C, 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 
 
fr6 Bak Examinations and Coukses of Study. 
 
 C, they had sold the stock to another party at a higher price. 
 C hrings an action against A, B & Co. to recover damages for 
 breach of contract. Can he recover ? State fully, with your 
 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 efforts 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 consult you as to their rights and 
 remedies under the circumstances. What would be your 
 advice? Give your reasons. 
 
 263. 
 
 13. C 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 
 O 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 C. A 
 short time before the note became due, B, fearing that A 
 would not pay the note, induced A to assign all his property 
 to him for his protection. When 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- 
 
Bab Examinations and Coueses of Study. 97 
 
 ment. 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 C, 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, O 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 became insolvent. The owner 
 of the property demanded payment of A, which was refused. 
 Suit ig brought against A to recover the amount remaining 
 unpaid 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 0, 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 
 
 7 
 
98 Bab Examinations and Coueses of Study. 
 
 the note in cash, principal and interest, surrendered the note 
 to B, paid the interest to A, and absconded -with the prin- 
 cipal. A sues B for the principal. Can he recover? State 
 your reasons. 
 
 268. 
 
 18. John Doe was elected cashier of the X Bank and he- 
 fore assuming office was required to give a hond 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 Boe refused unless John Stiles 
 would first sign the bond as surety. Subsequently Doe pre- 
 sented the bond to Boe purporting to bear the signature of 
 Stiles as surety, and requested Boe to sign as cosurety, with 
 which request Boe complied. Doe defaulted as cashier and 
 the X Bank brought suit against Doe, Boe and Stiles on 
 the bond. Doe made no defense. Boe defended on the 
 ground that he signed the bond relying upon the genu- 
 ineness of Stiles' signature, knowing him to be solvent; that 
 the signature of Stiles was forged and therefore he was not 
 liable. Upon demurrer to Boe'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. C, 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 occupyj 
 the store. He defaulted in payment of the rent at the end 
 of the first year of the extended term. A makes claim 
 against. O, under his guaranty, for $1,000 rent. C insists 
 that his liability, as surety, ended with the expiration of the 
 stated term of five years and that he is not liable. [Who i9 
 right and why? 
 
Bab Examinations and Courses of Studt. 99 
 
 270. 
 
 20. A insured his 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 ia 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 New 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 
 ground? 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 
 
100 Bab Examinations aito Coueses of Study. 
 
 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 and return. A drove to 0, 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 affirmatively 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), O levied upon 
 and afterward sold the horse on execution against B. To 
 whom shall A look for his $500? State jour 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, 
 
Bab Examinations and Courses op Study. 
 
 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 for 
 whom, and why! 
 
102 Bab Examinations and Coubses of Study. 
 
 FOR THE STATE OF NEW YORK. 
 New York and Syracuse, October 14, 1902. 
 
 EXAMINATION PAPER. 
 Afternoon — Four Hours. 
 
 276. 
 
 1. On the trial of an action against a railroad company 
 for damages for negligently causing the death of a person, 
 the question was as to the absence or presence of the flag- 
 man from his post of duty; 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. 
 
 3. A merchant claimed to have sold to a customer 100 
 barrels of flour, and that the same were delivered by X, a 
 
Bab Examinations and Coubses of Study. 103 
 
 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 cartr 
 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. Tour 
 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 
 Btating generally that the plaintiff was a thief, the defend- 
 ant offered testimony in 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 
 made. What 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 why? 
 
 283. 
 
 8. A was indicted and tried for the crime of robbery, in 
 that being armed with a dangerous weapon, he unlawfully 
 
104 Bab Examinations and Courses of Study. 
 
 took from the person of B, against hi3 '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 jjjour 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 crossing. 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 ta 
 
Bab Examinations and Coueses of Study. 105 
 
 divide the proceeds thereof equally among his wife and chil- 
 dren, share and share alike. There is $100,000 in real estate 
 and hut $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 born before the death of A and one child born 
 after his death. What are the rights under the will of the 
 Beveral 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 will 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 market, 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 
 saidjaothing 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. 
 
106 Bab Examinations and Cotibses of Studt. 
 
 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 making 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 fully, with your 
 reasons. 
 
 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 Cotjbses of Study. 107 
 
 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 boaTd was elected, which dispensed 
 with his services and refused to pay him anything for his 
 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 Company had obtained 
 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 weekly 
 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, with 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 you advise, and 
 for what reason? 
 
 297. 
 
 22. A, the husband, and B,the wile, were owners of real 
 estate, as tenants by the entirety. A procured a divorce, 
 a vinculo, from B and then married C, and had a son, D, 
 issue of the latter marriage. Then A dies intestate, leaving 
 B, C 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 affected by 
 the divorce? 
 
108 Bab Examinations and Coueses of Study. 
 
 298. 
 
 23. In 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 against 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 reason! 
 
Bab Examinations and Courses of Study. 109 
 
 FIRST AND SECOND JUDICIAL DEPARTMENTS. 
 New York City (Borough of Manhattan), April 19, 1005. 
 
 EXAMINATION PAPER. 
 
 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 amount 
 of the claim. Has B, by reason of the above facts, any de- 
 fense to the cause of action or any part thereof 2 Give your 
 reasons. 
 
 303. 
 
 3. A and B are each merchants doing a separate business 
 in the city of New York. They dealt with eaclrother 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 balanee^due 
 on the account 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. 
 
110 Bab Examinations and Courses of Study. 
 
 304. 
 
 4. Ton procure, as attorney for the plaintiff, an order 
 directing the service of a summons upon a non-resident de- 
 
 f 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 E 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 Ooueses of Study. Ill 
 
 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 you 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 
 hired 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 yeu. What do you say as to his liability? 
 Give your reasons. 
 
 310. 
 
 10. A owned a horse, for which B offered him $500. A 
 at once accepted the offer and it was agreed that the horse 
 should be delivered and paid for on the following day. 
 Nothing 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 
 
112 Bar Examinations and Courses of Study. 
 
 the title did not vest in the vendee, and the property was 
 destroyed by accident, without fault of the vendor, so that 
 delivery by him became impossible, is the vendor liable to 
 the vendee in damages for non-delivery? Give the reason 
 for your answer. 
 
 312. 
 
 12. A loaned to the firm 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 out 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 R and delivered to him. R, for a valuable con- 
 sideration and before maturity, by indorsement in blank, 
 
Bab Examinations and Courses of Study. 113 
 
 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 that time 
 E's indorsement upon the bonds had been erased, but of that 
 A had no knowledge. The person offering them, however, 
 falsely personated R 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 3 
 
 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 note 
 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 ? 
 
 8 
 
114 Bar Examinations and Courses of Study. 
 
 317. 
 
 17. A delivered a certificate of stock to B as collateral 
 security fdr a loan of $1,000 by A to B. While B thus held 
 the certificate he applied to a bank for a loan upon it of 
 $2,000, in effect stating that he wanted it for A. The bank 
 agreed to make the loan if B would procure from A a proper 
 power of attorney to be 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 bank 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 
 owner 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. G 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 C 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, 
 
Bar Examinations and Couhses of Study. 115 
 
 a house for the 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 tipon 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 upbn 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. & Y. 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 great 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 
 
116 Bab Examinations and Coueses of Study. 
 
 were burned to death. Is the railroad company liable for 
 the ralue of the horses? If so, -why? If not, why not? 
 Answer fully. 
 
 324. 
 
 24. A sold by sample 1,000 bushels of wheat to B and a 
 like amount to to be delivered at A's warehouse. B paid 
 in full for the amount of his purchase, but 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 0, 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 ? 
 
Bab Examinations and Cotjbses of Study. 117 
 
 FIRST AND SECOND JUDICIAL DEPARTMENTS. 
 New York City (Borough of Manhattan), April, 19, 1905. 
 
 EXAMINATION PAPER. 
 
 Afternoon — Four Hours. 
 
 326. 
 
 1'. On the trial of an action, the plaintiff called a -witness 
 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 
 
118 Bar Examinations and Courses 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 indictment for murder in 
 -the first degree, it was established that the .prisoner com- 
 mitted the act while in a state of voluntary intoxication. 
 
Bab, Examinations and Codeses of Study. 119 
 
 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 his contract. 
 Upon learning these facts B sued 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 fhe 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 
 
120 Bab Examinations and Coueses of Study. 
 
 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 uot 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 Courses of Study. 121 
 
 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-afr-law. At his death the testator left him 
 surviving A, his widow, and 0, a daughter, who was his only 
 heir at law. 
 
 What estate did 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 nntil spring, when the stone 
 were to be removed by B, who paid nothing 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 
 
122 Bar Examinations and Courses 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 
 B 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. By. Co. The stockholders of the company are 
 to decide whether the company shall purchase a number 
 of locomotives which are necessary for the business of the 
 company, and a meeting of stockholders is held for the pur- 
 
Bar Examinations and Courses of Study. 123 
 
 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, executed 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 and 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 ? 
 
124 Bab Examinations and Courses of Study. 
 
 348. 
 
 23. 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 $2$,000 damages (therefor. ■ 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 
 warranty 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 ? 
 
Bab Examinations and Ooueses of Study. 123 
 
 FOR THE STATE OF NEW YORK. 
 New York, Albany and Rochester, June 19, 1005. 
 
 EXAMINATION PAPER. 
 
 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 fourteen 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 wrongful act of 0. 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 0, 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 0, and 
 that the indebtedness of B thereon was to 0, 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 
 
126 Bar Examinations and Coitbses 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 sufficient 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 R. 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 grant 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 bo 
 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 unknown 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 yotir answer. 
 
Bab Examinations and Courses op Study. 127 
 
 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 within 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 the 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 1902 H sold and deeded the lots 
 to B by a deed containing the usual covenants of warranty, 
 and which bounded the lots 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 note 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 
 
128 Bar Examinations 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 cause 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 
 $50,000. 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 O lived. The sheriff has levied 
 on the entire stock of the firm which is concededly insuffi- 
 
Bab Examinations and Ooubses of Study. 129 
 
 cient to satisfy the judgment, and has advertised it and O's 
 private dwelling-house for sale under the execution. 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 
 
 9 
 
130. Bab Examinations and Coueses op 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 
 his 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 note 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 
 returned the collateral to B, who disposed of it and then 
 became insolvent. A now learns 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 the 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- 
 
Bak Examinations and Courses of Study. 131 
 
 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. No 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 1 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 Avarranted 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 New 
 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 ? 
 
132 Bab Examinations and Courses of Study. 
 
 373. 
 
 23. A delivered to B a quantity of cloth 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 first. 
 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 highest 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 transit, and B: sues A for their value, claiming that 
 he delivered them to A's agent, the express company, at his 
 request, and that as between them A must stand the loss. 
 A defends. Judgment for whom, and why ? 
 
Bar Examinations and Courses of Study. 133 
 
 FOR THE STATE OF NEW YORK. 
 New York, Albany and Rochester, June 19, 1905. 
 
 EXAMINATION PAPER. 
 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 
 
134 Bab Examinations and Coueses op Study. 
 
 offered to prove by him the declarations of the decedent aa 
 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 gestae, 
 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, 
 tbe 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 hia 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. For 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 Coukses of Study. 135 
 
 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 proof 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. 
 
136 Bab, Examinations and Coukses of Study. 
 
 384. 
 
 9. While A was an ordinary passenger on the X. Kail- 
 road the train suddenly left the track and he was hadly 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 0, 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." Nothing 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 lota 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 nahirally 
 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 G, 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, O 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 
 
Bab Examinations and Courses of Study. 13t 
 
 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. Who ia 
 entitled to the house and lot and the $10,000 ? Give your 
 reasons. 
 
 389. 
 
 14. A, who was but twenty years of age, made hia 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, 0. 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 paslrdue 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 
 
138 Bar Examinations and Courses 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 O 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 D 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 ? 
 Give 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 
 
.Bar Examinations and Courses of Study. 139 
 
 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 38 corporation 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 pur- 
 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 born 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- 
 
140 Bab Examinations and Courses of Study. 
 
 tament, which was duly admitted to probate and recorded, 
 appointed Y to be the general guardian of the person of the 
 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 ? 
 
ANSWERS. 
 
 1. 
 
 ALBANY COUNTY COUKT. 
 
 JOHN DOE, Plaintiff. 
 
 against 
 
 RICHARD ROE, Defendant. 
 
 The plaintiff complains of the defendant in the above-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, 
 Office and Post-office Address, 
 
 Albany, K Y. 
 Section 340, Code of Civil Procedure. 
 
 2. 
 
 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 against 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. 
 
142 Bab Examinations and Coubses of Study. 
 
 Both. Both won ; each party had recovered, and was en- 
 titled to costs as against the other. 
 
 Code Civil Procedure, sec. 3234. 
 Browning v. K Y., L. E. & W. R. K. 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) Eile notice of pendency of action in clerk's office 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 answering or being infants or ab- 
 sentees, apply to Special Term upon an affidavit of regularity 
 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. 
 
 Supreme Court Rules 60, 61. 
 
 6. 
 
 By procuring a writ of habeas corpus to bring up a person 
 to testify. 
 
 Code Civil Procedure, sec. 1991; sees. 
 2008 to 2014. 
 
 7. 
 
 A's contention is correct. 
 
 B had originally a right of way of necessity over the lands 
 
Bab Examinations and Courses of Studt. 143 
 
 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 N. T. 146, 147. 
 
 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 N. Y. 390. 
 
 Bank v. Crary, 1 Barb. 542. 
 
 Warren v. Leland, 2 Barb. 619. 
 
 Bradner v. Faulkner, 34 N. T. 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 Eeal Estate (4th ed.), 
 
 p. 299. 
 Bertles v. Nunan, 92 K 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 170, Real Property Law (chap. 647, 
 Laws 1896) ; Id., sec 281. 
 
 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). 
 
144 Bab Examination's and Couesks of Study. 
 
 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. T. 177. 
 
 12. 
 
 A liable for $40,000 only. This being a limited partner- 
 ship under the statute (chap. 420, Laws 1897), 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. 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. 
 
 * Eussell v. McCall, 141 BT. 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 Roe, the maker. 
 
 Bice v. Bice, 43 App. Div. 458. 
 
 15. 
 
 Judgment for O for $1,000. While there was a material 
 
 alteration, C 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. 612, 
 
 Laws 1897), sees. 205, 206. 
 
 [Eaton & Gilbert on Com, Baper, pp. 556, 
 
 561,678. 
 
Bab Examinations and Coubses ot Study. 145 
 
 16. 
 
 X has no claim against the wife. " The marital relation 
 creates, in itself, no presumption that the husband was 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. 
 
 Mchols 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 as 
 
 asent " DeRemer v. Brown, 165 K Y. 419. 
 
 Y was entitled to actual knowledge of the name of X's 
 principal. Cobb y> j^ n -^ Y 3 ^ 
 
 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, 762. 
 
 10 
 
146 Bab Examinations and Cotjbses of Study. 
 
 19. 
 
 B cannot recover. C's obligation as surely was strictisstmi 
 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 K 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." 
 
 Bohrbach v. Germania Fire Ins. Co., 62 
 
 K Y. 47. 
 Biggs v. C. M. Ins. Co., 125 N. Y. 14. 
 
 21. 
 Yes. A can recover. 
 
 " Where a creditor ^procures 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." 
 
 Bawls v. Am. Mut. Life Ins. Co., 27 
 
 K Y. 282. 
 Bichards on Insurance, sec. 27. 
 
 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 K Y. 676. 
 
Bab Examinations and Courses of Study. 147 
 
 23. 
 
 The attachment should be 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 N". Y. 291. 
 
 24. 
 
 Tea. The warranty being express, survived acceptance. 
 
 Fairbanks Canning Co. v. Metzger, 118 
 
 N. Y. 260. 
 Hooper v. Story, 155 K Y. 171. 
 Zabriskie v. 0. V. E. E. Co., 131 N. Y. 
 
 72. 
 
 The measure of damages is the difference between the con- 
 tract price of the goods and their market value at the time 
 and place of delivery. The buyer is entitled to the benefit of 
 his bargain in obtaining the goods at a price below their real 
 
 Comstock v. Hutchinson, 10 Barb. 211. 
 Windmuller v. Pope, 107 N". Y. 674. 
 Ideal Cash Beg. Co. v. Zunino, 39 Misc. 
 811. 
 
 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 acci- 
 dent,, with respect to the cause and circumstances of the acci- 
 dent, were not binding upon the defendant, and are inadmis- 
 sible against it, where they do not tend to contradict or 
 impeach the motorman in anything to which he testified as a 
 witness for the defendant. 
 
 Kay v. Met Street By. Co., 163 K Y. 
 447. 
 
148 Bab Examinations and Cotjbses of Study. 
 
 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. 
 
 Yes, 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. 
 
 29. 
 
 Yea. 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 1ST. Y. 316. 
 Clapp v. Eullerton, 34 IS. 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 1ST. Y. 214. 
 Kniffen v. McOonnell, 30 1ST. Y. 285. 
 
Bab Examinations and Coueses of Study. 149 
 
 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 Code, sees. 488, 34, 171. 
 5 Park. Crim. Kep. 102. 
 James McDermott v. People, 5 Park 
 Crim. Kep. 102. 
 
 32. 
 
 Not guilty. A's marriage to 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 Code, sec. 298. 
 
 33. 
 
 No. 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 relevancy 
 
 to the issue. 
 
 People v. Van Tassell, 156 JST. Y. 561. 
 
 People v. Molineaux, 168 N. Y. 343. 
 
 People v. Place, 157 K Y. 585, 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. • 
 Eothmiller v. Stein, 143 K Y. 593. ' 
 
150 Bab Examinations and Coubses of Study. 
 
 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. Kitch, 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 hia. 
 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 N". Y. 153. 
 Felts v. Collins, 46 App. Div. 334. 
 Ferris v. Nelson, 60 App. Div. 430. 
 iTerry v. Munger, 121 N. Y. 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. fc 
 Baskin v. Baskin, 36 K Y. 416. 
 Eoysradt v. Kingman, 22 N. Y. 372. 
 
Bab Examinations and Courses op Study. 151 
 
 (b) An attestation clause is not necessary. 
 
 Kedfield's Law & Practice, Surrogates' 
 
 Courts (6th ed.), pp. 157, 158, sec 
 
 203. 
 Matter of Crane, 68 App. Div. 355. 
 Matter of Cornell, 89 App. Div. 412. 
 
 (c) 1 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 N. Y. 244. 
 
 Matter of Phillips, 98 IT. Y. 267. 
 
 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. 
 
 39. 
 
 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. 
 
 Pray v. Hagaman, 92 IT. Y. 508. 
 Hascall v. King, 162 BT. 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 IT. 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. 
 
 Holmes v. Gilman, 138 K Y. 369. 
 Matter of Hicks, 170 ST. Y. 198, 200, 
 201. 
 
152 Bab Examhtatiobts and Cotjeses of Study. 
 
 42. 
 
 A losea 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." 
 
 (Vol. XT, Encyc. of Law (2d ed.), pp. 427, 
 428, 429. J 
 
 43. 
 
 A wins. 
 
 Bank cannot recover. A is the absolute owner of the stock ; 
 the contract is ultra vires and purely executory. 
 
 Nassau Bank v. Jones, 95 N. Y. 115. 
 
 44. 
 
 The consolidated corporation is liable for the debts of each 
 of the constituent companies, but the equitable lien whjcji the 
 creditors of the X Railroad 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. E. Co., 52 
 
 K T. 363. 
 Boardman v. L. S. & M. S. R. E. Co., 84 
 
 N. Y. 181. 
 Copp v. 0. C. & I. Co., 29 Misc. 110. 
 
 45. 
 
 No. A holds the real estate, having purchased in good 
 faith and for value. 
 
 Cole v. M. I. Co., 133 K Y. 168. 
 
 46. 
 
 A can be compelled to support his wife, his minor son, 
 and his paternal and maternal grandparents, by the OverseeT 
 
Bab Examinations and Courses of Study. 155 
 
 or Superintendent of the Poor or Commissioner of 
 Charities. 
 
 Ex parte Hunt, 5 Cow. 284. 
 
 Code Crim. Pro., sees. 914-926. 
 
 47. 
 
 The marriage is valid and the child is legitimate. The 
 second marriage is voidable, hut 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. 272, 
 
 Laws 1896), sees. 3, 4. 
 Code Civil Procedure, sees. 1742-1755. 
 Code Crim. Procedure, sec. 838. 
 Price v. Price, 124 K Y. 589. 
 
 48. 
 
 No, 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 Nat. Bank. v. Shinn, 163 
 N. Y. 360. 
 
 60. 
 
 The act is unconstitutional and void. 
 
 (a) It is a private or local bill and embraces more than 
 one subject. Const, of N. Y., art. Ill, sec. 16. 
 
 (6) It is a private or local bill discontinuing a highway. 
 Id., art. m, sec. 18. 
 
 (c) It is a bill allowing a private claim or account against 
 the state. Id., art. Ill, sec. 19. 
 
154 Bar Examinations and Cottbses of Study. 
 
 SI. 
 
 SUPREME COURT, NEW YORK COUNTY. 
 
 JOHN DOE, Plaintiff, 
 
 against 
 EICHAED 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 data 
 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. 
 Office 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 js 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 nrpursuance of a statute of the State, or of 
 the United States; or, if it has been taken under color of such 
 
Bab Examinations and Coubses of Study. 355 
 
 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 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 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 
 
156 Bab Examinations and Courses of Study. 
 
 not taken either way, defendant will be deemed to have 
 waived it." Crane y _ Powe]1; 139 -^ Y g79# 
 
 0. R. Parmele Co. v. Haas, 171 F. T. 
 
 583. 
 [Barrett 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. Proa, 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 hav£. 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{de Abbqtt , g Trial Brief (Ciyil Jury 
 
 Trials), pp. 30, 38, and cases cited. 
 
 53. 
 
 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 
 
Bab Examinations and Cotjbses of Study. 157 
 
 A'a deed. The latter, because of his having purchased for an 
 antecedent debt, is not a purchaser for a valuable considera- 
 tion, as required by the' Real' Property Law. 
 
 Real' Property Law (chap. 547, Laws 
 
 . , 1896), sec. 241. 
 Vide numerous cases cited, Logan's Real 
 
 Property Law, p. 87. 
 De Lancey v. Stearns, 66 N. Y. 157. 
 Howells v. Hettrick, 160 IS. 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 N. 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. 547, Laws 
 1896), sees. 281, 282. 
 
 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 
 
 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 K Y. 612. 
 
 Embery v. Jemison, 131 U. S. 336. 
 
158 Bab Examinations and Cotjeses of Study. 
 
 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 he the particular deht 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. Roosevelt, 4 Johns. 251, 
 252. 
 
 63. 
 
 B 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 N. 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. 
 
 Nego. Ins. Law (chap. 612, Laws 1897), 
 
 sec. 115. 
 Eaton & Gilbert on Com. Paper, sec. 85, 
 
 p. 418. 
 Daniel on Nego. Inst. (5th ed.), sec 675. 
 
 65. 
 
 C can recover against A. 
 
 He derived his title through a holder in due course, and 
 
Bab Examinations and Coueses of Study. 159 
 
 not being a party to any fraud or illegality affecting the 
 instrument, he has all the rights of such former holder in 
 respect of all parties prior to the latter. 
 
 Nego. Inst. Law (chap. 612, Laws 1897), 
 
 sec. 97. 
 Eaton & Gilbert on Com. Paper, pp. 387, 
 
 388. 
 Daniel on Nego. Inst. (5th ed.), sees. 803, 
 
 805. 
 4 Am. & Eng. Encyc. of Law (2d ed.), p. 
 308. 
 
 66. 
 
 Yes, C can. recover. 
 
 A was an undisclosed principal, and C 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. 
 
 City Nat. Bank of Birmingham t. Dun, 
 51 Fed. Rep. 160. 
 
 68. 
 
 'Judgment for 0. 
 
 A is estopped from denying B's capacity to contract. 
 
 Penfield v. Goodrich, 10 Hun, 43. 
 
 Einball v. Newell, 7 Hill, 116. 
 
 Both have good defenses. 
 
 >The release of A discharged both B and D. 
 
 Robertson v. Smith, 18 Johns. 459. 
 
 King v. Baldwin, 2 Johns. Ch. 559. 
 
160 Bab Examinations and „Coubses of Study. 
 
 70. 
 
 To the first wife. Her interest was fixed at the time the 
 policy was issued. 
 
 Steinback v. Diepehbrock, 158 N. T. 30. 
 Conn. Mut. v. Schaefer, 94 U. S. 457. 
 Goldsmith v. Union M. L., 15 Abb. M". 0. 
 409. 
 
 71. 
 
 Judgment for B. 
 
 The policy was void for breach of condition, the knowledge 
 
 of the agent was the knowledge of the defendant insurance 
 
 company. Van gchoick y Niagara F> Ins . C o., 68 
 
 K Y. 434. 
 
 Contra (in U. S. courts), Northern Asa. 
 
 Co. v. Gvrand View Building Assoc, 
 
 183 U. S. 308. 
 
 72. 
 
 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 or 
 servant, and is liable for his negligence under the circum- 
 stances. HaU v Warner? 6Q 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 out driving. 
 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- 
 
£ab Examinations and Coubsbs of Study. 161 
 
 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 negligence, 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. 
 
 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. Rathbone, 126 N. Y. 192. 
 Terry v. Munger, 121 N. 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 sample. 
 
 Waring v. Mason, 18 Wend. 425. 
 Hargous v. Stone, 5 N. Y. 73. 
 Smith v. Coe, 170 N". Y. 171. 
 Gurney v. At. & G. W. R. Co., 58 N". Y. 
 364. 
 
 76. 
 
 The Court should admit the testimony. 
 " It was pertinent and not immaterial. The (Engineer's) 
 11 
 
162 Bab Examinations and Cotteses of Study. 
 
 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 testimony. 
 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 t>fg. Law Ev. (Beers' K Y. 
 
 ed.), p. 157. 
 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. 
 
 Abhott's Brief on Facts, p. 229. 
 
(Bab Examinations and Coubses of Study. 163 
 
 81. 
 
 Murder in the first degree. 
 
 It is murder in the first degree to kill a human being when 
 committed without a design to effect death, by a person en- 
 gaged in the commission of, or in an attempt to commit a 
 felony, either upon or affecting the person killed or otherwise. 
 
 Penal Code, sec. 183. 
 
 People v. Cole, 2 M". Y. Grim. Eep. 108. 
 
 Fitzgerald v. People, 37 K T. 413. 
 
 People v. Flanagan, 174 K Y. 356. 
 
 People v. Greenwall, 115 K Y. 520. 
 
 82. 
 
 Yes. In all cases, other than felony, defendants jointly 
 indicted may be tried separately or jointly in the discretion 
 of the court. Code 0rim p^ ^ g91# 
 
 83. 
 
 C 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 Code, sees. 532, 30, 31. 
 
 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. Federgreen, 80 Hun, 245. 
 
 85. 
 
 Upon A 1 . 
 
 It was immaterial under the circumstances whether A's 
 ox was known to be vicious or not, when it gored B's ox 
 
164 Bab Examinations and Cottbses of Study. 
 
 through the fence, which separated the farms. The fence 
 being proper, it committed a trespass for which A is liable. 
 
 Van Leuvin v. Lyke, 1 N". T. 515. 
 
 Marsh v. Hand, 120 K T. 319. 
 
 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. 
 
 0, D and E each take one-third or four thousand dollars. 
 A'a 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. 272, Laws 1896), 
 
 sec. 64. 
 iOode 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 take her dower in the 
 lands received in exchange. 
 
 Real Property Law (chap. 547, Laws 
 1896), sec. 171. 
 
 89. 
 
 Mary wins. The will was valid as a nuncupative will of a 
 soldier in actual service, and in extremis dying on the field of 
 
Bab Examinations and Cotjbses of Study. 165 
 
 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. 
 
 Bedfield's Surr. Pr. (6th ed.), p. 201, 
 sec. 240. 
 
 2 E. S. 60, sec. 22. 
 
 Hubbard 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 Stores Eq. Jurisp. (12th ed.), sec 244. 
 
 91. 
 
 Tea. 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. 
 
 iWood v. Eabie, 96 N. Y. 425. 
 
 'Ahrens v. Jones, 169 N". 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 borrower 
 within the meaning of the provisions of the usury law (sec 
 4, chap. 430, Laws 1837), declaring such payment or offer to 
 be unnecessary as a condition of granting relief to a borrower. 
 
 Buckingham v. Corning, 91 N. Y. 625. 
 
 Hubbard v. Todd, 171 U. S. 474. 
 
166 Bab Examinations and Cotjbses op Study. 
 
 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 48 of the 
 Stock Corporation Law, chapter 564, Laws 1890, as amended 
 by Laws 1892, chapter 688. 
 
 Dickson v. Maye, 35 St. Kep. 482. 
 
 94. 
 
 The X Company is not liable. It is an ultra vires act for a 
 corporation organized for the purpose of manufacturing beer 
 and malt to become an accommodation surety for the pay- 
 ment of the rent of a house which one of its directors rented 
 of A, and A was bound to know in that regard the limitations 
 on the corporate powers. 
 
 Jemison v. C. S. Bank, 122 N. Y. 135. 
 
 10 Cyc. 1148 et seq. 
 
 Nat. Park Bank v. G-. A. M. W. & S. Co., 
 
 116 N. Y. 281. 
 Wide as to its being surety on leases of . 
 saloons, Koehler v. Reinheimer, 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. 
 522. 
 
 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 
 
Bab Examinations and Courses of Study. 167 
 
 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. 564, 
 Laws 1890), as amended by Laws 
 1892, chap. 688, sec. 23. 
 
 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 exceeds $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 1896, chap. 272), 
 sec. 22. 
 
 97. 
 
 The marriage of B and C legitimatized A, and he became 
 entitled to all the rights and privileges of a legitimate child. 
 Dom. Eel. Law (Laws 1896, chap. 272), 
 sec. 18. 
 
 The real estate descended to A subject to his mother's 
 dower. (Eeal Prop. Law, chap. 547, Laws 1896, sec. 281.) 
 
 The personal estate was distributed one-third to the mother 
 and the balance to A. (Code Civ. Proc, sec. 2732.) 
 
 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 1896, chap. 272), 
 sec. 24. 
 
168 Bab Examinations and Cotjbses of Study. 
 
 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. 
 
 Tide 168 K Y. 671; 173 K Y. 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, 157i 
 
 K Y. 116. 
 Dodge v. Cornelius, 168 N. Y. 251. 
 
 100. 
 
 !A.dvise 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." 
 
Bab Examinations and Coubses of Study. 169 
 
 101. 
 
 STATE OF NEW YORK, 
 City and County of Albany. 
 
 . \s,: 
 
 A B, being duly sworn, deposes and says, that lie 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 founded 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 hisy 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, !N". T. 
 Code Civ. Proa, sees. 525, 526. 
 
 102. 
 
 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 to an 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. 
 
170 Bab Examinations and Coubses of Study. ' 
 
 103. 
 
 An injunction order is an order issuing out of the Su- 
 preme Court restraining the commission or continuance of 
 an act, the cojnmission 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 granted, to restrain 
 the removal or disposition." 
 
 Code Civ. Proc, sec 604/ . ' Vx 
 
 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. 538. 
 Wayland v. Tysen, 45 K Y. 281. 
 Thompson v. Erie E. E. Co., 45 N". T. 
 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 , 
 
 t 
 
Bab Examinations and Coubses of Study. 171 
 
 « 
 of the subpoena 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. 
 
 Six. 
 
 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. Ryan, 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 
 
 Heal Property Law (chap. 547, Lawa 
 1896), sec. 129. 
 
 109. 
 
 The trust is valid. The absolute power of alienation is 
 not suspended for any time, nor for any number of lives, 
 
172 Bab Examinations and Coueses of Study. 
 
 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 
 manner provided in the will. 
 
 Keal Property Law (chap. 547, Laws 
 1896), sec. 32. 
 
 Sawyer v. Cubby, 146 N. T. 192. 
 
 110. 
 
 Judgment for B. There was no consideration for B's 
 promise, and it created no obligation against him, even though 
 in writing. j,.^^ Lawyer3 , Briefj se(J 10Q# 
 
 Mills 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. j,^ y Clevelandj 4 Cow> 432# 
 
 Cleveland v. Farley, 9 Cow. 639. 
 Lawrence v. Fox, 20 N". T. 268. 
 
 112. 
 The firm is 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 balance struck and an express promise to pay. 
 
 Westerlo v. Evertsen, 1 Wend. 532. 
 
 Belanger v. Dana, 52 Hun, 39. 
 
 Carey v. Brush, 2 Caines, 293. 
 
Bab Examinations and Courses of Study. 173 
 
 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 N. T. 188. 
 
 115. 
 
 Judgment for A. 
 
 "A promissory note payable on demand, whether with or 
 without interest, is 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 Y. 519. 
 Knapp v. Greene, 79 Hun, 266. 
 Eaton & Gilbert on Com. Paper, p. 447. 
 
 113. 
 
 Judgment for B. C was B's agent for the purposes of the 
 loan and his knowledge was B's 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 
 
 agent." National Life Ins. Co. v. Minch, 53 K T. 
 
 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, 
 
174 Bab Examinations and Coueses of Study. 
 
 while engaged in performing a duty which the carrier owes 
 to the passenger. 
 
 Stewart v. Brooklyn & Crosstown R. R. 
 Co., 90 K Y. 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, 32 K Y. 501; Morss v. Grleason, 64 id. 204; 
 Colegrove v. Tallman, 67 id. 95), and when such 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. K Bank v. Under- 
 wood, 2 App. Div. 342.)" 
 
 Reed & Barton v. Ashe, 18 App. Div. 
 502, 503, 504. 
 
 119. 
 Yes. O 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. 
 
 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 
 
Bab Examinations and Courses op Study. 175 
 
 amount of the policy less the unpaid premiums with interest 
 
 thereon. 
 
 .Whitehead v. 1ST. T. Life Ins. Co., 102 
 
 K. Y. 143. 
 
 121. 
 
 The insurance company is liable. 
 
 "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 was 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 Kiver F. Ins. Co., 17 
 
 N. T. 426. 
 
 122. 
 
 Judgment for B. It was A's duty, 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 K Y. 
 
 263. 
 Young v. Leary, 135 K Y. 576. 
 5 Cyc. of Law & Pro., pp. 176, 177, 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 
 
176 Bab Examinations and Courses of Study. 
 
 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. (Claflin 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. E. R. Co., 
 19 id. 509. 
 
 124. 
 
 A may replevy the horses from C or may demand same, and 
 on refusal may sue in conversion, or he may waive the tort 
 and sue for their valua 
 
 Terry v. Munger, 121 K Y. 161. 
 
 Although A and B violated the statute relating to the con- 
 ditional sale of goods and chattels, is not within its protec- 
 tion for the reason that he is not a purchaser for value, having 
 taken the horse in extinguishment of an antecedent debt. 
 Chap. 315, Laws 1884, sec. 1. 
 Victoria Paper Mills v. N. Y. & Penn. 
 
 Co., 28 Misc. 123. 
 Levy v. Yazbeck, 22 Misc. 136. 
 Rochester Distilling Co. v. Devendorf, 72 
 Hun, 428. 
 
 125. 
 
 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." 
 
 Roberts v. Fisher, 43 N. Y. 159. 
 
Bab Examinations and Coubsbs of Study. 177 
 
 126. 
 
 The Court should send the case to the jury. 
 
 The plaintiff was the sole witness to establish his cause of 
 action. 
 
 " The general rule is that where a witness is interested in 
 the question, although he is not impeached or contradicted, 
 hi3 credibility is a question for the jury, and the Court is 
 not warranted in directing a verdict upon his testimony 
 alone." 
 
 Saranac & L. P. E. R. Co. y. 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 1ST. T. 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 his 
 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 is proposed to prove he said it was. 
 
 • Rice v. Pace, 43 App. Div. 458. 
 12 
 
178 Bab Examinations and Coubses of Sttjdt. 
 
 130. 
 
 The ruling of the court should be that the question waa 
 improper. His opinion should be obtained by stating to him 
 an hypothetical case. 
 
 Reynolds v. Reynolds, 64 K Y. 589. 
 Abbott's Trial Brief, Facts, p. 229. 
 
 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 Code, sec. 99. 
 
 133. 
 
 A was not guilty of robbery. The watch was " gone be- 
 fore B was aware of the transaction," so the taking was not 
 bj] means of force, or violence or fear, and the pistol was 
 employed merely as a means of escape. 
 
 Penal Code, sees. 224, 225. 
 
 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 Code, sec. 530. 
 
 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. 
 
Bab Examinations and Cotjeses op Study. 179 
 
 This being a subterranean stream with 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. T. 
 400, except, perhaps, for merchandising it, as limited in For- 
 bell v. City of New York, 164 1ST. T. 522, 525, and West- 
 phal v. New York, 177 29". T. 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 his part." 
 
 Hartfield v. Eoper, 21 "Wend. 614. 
 
 136. 
 
 B can maintain his action; cannot. 
 
 To say of a merchant that he is a bankrupt would tend to 
 injure 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 tendency 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 damage are pre- 
 sumed." 
 
 Moore v. Francis, 121 N. Y. 199. 
 
 Vide Crane v. Bennett, 177 N. Y. 106. 
 
180 Bab Examinations and Couesbs oe Studt. 
 
 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. 
 
 Bedfield's Surrogate Practice (6th ed.), 
 sec. 228, pp. 191, 192. 
 
 138. 
 
 The widow takes all, under the circumstances disclosed. 
 She takes one-half, and the residue because it does not 
 exceed two thousand dollars. 
 
 Code Civ. Proc, sec. 2732, subd. 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 into effect." 
 
 Eedfteld's Surrogate Practice (6th ed.), 
 
 sec. 224, p. 187. 
 Matter of Carver, 3 Misc. 567. 
 Matter of Wilcox, 46 St Rep. 877. 
 
 140. 
 
 The Supreme Court has jurisdiction. 
 
 "The Supreme Court may compel specific performance 
 
Bar Examinations and Coueses of Study. 181 
 
 by! a resident of this State of a contract for the conveyance 
 of land lying without its jurisdiction." 
 
 Newton v. Bronson, 13 K T. 587. 
 
 Code Civ. Proa, sees. 982, 984. 
 
 Muller v. Dows, 94 U. S. 444. 
 
 Dull v. Blackman, 169 U. S. 243. 
 
 141. 
 
 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. 
 1023. 
 
 can bring an action in equity to cancel B's mortgage, 
 and in that action obtain an injunction order restraining B'a. 
 foreclosure during the pendency of the action. 
 
 Code Civ. Proa, sees. 603, 604. 
 
 142. 
 
 Yes. C 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." 
 
 Caryj v. White, 52 E". T. 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. 688, Law* 
 1892), sees. 54, 55. 
 
182 Bae Examinations and Cottbses of Study. 
 
 144. 
 
 Judgment in favor of the X Bank against A. Judgment 
 in favor of the B manufacturing corporation against the 
 X Bank. 
 
 A manufacturing corporation has no power to indorse 
 notes for the 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. Kural 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 services. 
 
 Stock Corp. Law (chap. 564, Laws 
 1890), sec. 57. 
 
 Berwind v. Ewart, 90 Hun, 60. 
 
 146. 
 
 Up to the time of the divorce the husband had a tenancy 
 by the curtesy initiate in the wife's house and lot, which he 
 Jost when she obtained a divorce from him. 
 
 Kenwick v. Benwick, 10 Paige, 420. 
 
 The son inherits the property. 
 
 Keal Property Law (chap. 547, Lawa 
 1896), sec. 281. 
 
Bab Examinations and Coubses of Studt. 183 
 
 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. Bel. Law (chap. 272, Laws 1896), 
 eecs. 3, 28. 
 
 148. 
 
 Judgment for A, the husband. 
 
 Although the 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. 
 
 No. The verdict on the first trial was " guilty as charged 
 in the second count," viz., of murder in the second degree, 
 and being silent as to the charge of murder in the first 
 degree it was equivalent to a verdict of not guilty of that 
 crime. 
 
 The prisoner's plea of autrefois acquit is good, for he 
 cannot be twice put in jeopardy for the same offense. 
 
 N". T. Const., art. 1, sec 6. 
 People v. Dowling, 84 K Y. 478. 
 People v. Cignarale, 110 K Y. 30. 
 People v. McCarthy, 110 XI. Y. 314, 315. 
 
 150. 
 
 The Constitution (art. 1, sec. 6) guarantees to all persons 
 accused of crime the right to appear and defend in person 
 and with counsel, and as the Sheriff refused to allow you a 
 private interview with your client in order to prepare for 
 
184 Bab Examinations and Courses of Sttjot. 
 
 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. Burgess v. Biseley, 13 
 Abb. N. 0. 186. 
 
 151. 
 
 (1) Summons; 
 STATE OF NEW YOKE. 
 SUPEEME COURT, COUNTY OE 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. .. 
 
 K Y Z, 
 
 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. 1774. 
 
Bab Examinations and Coubses of Study. 185 
 
 (3) 
 
 STATE OE NEW TOEK, ) 
 
 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. Proa, 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, inclusive 
 
186 Bab Examinations and Coubses of Study. 
 
 „- 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 manner 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. 
 Eish 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. 
 
 Vol. 1, Oowen's Treatise (5th ed.), sec. 
 
 105. 
 Young v. Leary, 135 K T. 576. 
 Ouderkirk v. 0. K Bank, 119 K Y. 263. 
 5 Oyc. of Law & Pro., title Bailment, 
 
 pp. 176, 177 et seq. 
 
 154. 
 
 r 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. Ereedman, 9 Civ. Proc 73. 
 
 Collins v. Suan, 7 Robt. 94. 
 
 Eettretch v. McKay, 47 K 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, 
 
Bab Examinations and Coueses of Study. 187 
 
 The damages must be ascertained by a writ of inquiry 
 
 (Code Civ. Proc, sec. 1215); which are assessed by a 
 
 sheriff's jury. 
 
 Rumsey'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. 158. 
 Hays v. Knauth, 169 K Y. 304. 
 
 158. 
 
 takes the planing machines; they are personal property 
 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 K Y. 344. 
 LVoorhees v. McGinnis, 48 N. Y. 278. 
 
188 Bab Examinations and Coubses of Study. 
 
 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. Safford, 7 Barb. 309. 
 
 160. 
 
 Judgment for Eichard Eoe. ' The contract is void for 
 want of mutuality. Doe did not agree to employ Boe for any 
 particular time, hence Boe was not obliged to stay for any 
 definite period, and could leave at his option without in- 
 curring liability. 
 
 Burnet 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. 
 
 r A has no defense. 
 
 "An action for the breach of promise will lie at once, upon 
 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 K Y. 246. 
 
 Windmuller v. Pope, 107 K Y. 674. 
 Boehm v. Horst, 178 TJ. S. 1. 
 yide 30 L. E. A. 38, and note. 
 
 162. 
 
 (1) Master and servant. 
 
 Vol. 20 Am. and Eng. Encyc of Law 
 
 (2d ed.), p. 18. 
 Wilber v. Sisson, 53 Barb. 258. 
 
 (2) Tenants in common. 
 
 Parker v. Mott, 43 App. Div. 341. 
 Putnam v. Wise, 1 Hill, 234. 
 
Bab Examinations and Coubses of Study. 1891 
 
 163. 
 
 Judgment for 0. 
 
 " The rule is that as to all persons who have had actual 
 
 dealings with the firm, actual notice of the dissolution must 
 
 he given." 
 
 6 Bank v. Weston, 159 N". 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 
 the original holder. 
 
 Neg. Inst Law (chap. 612, Laws 1897), 
 
 sec. 330. 
 Eaton & Gilbert on Com. Paper, p. 690. 
 
 165. 
 
 Judgment for B. 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." 
 
 Keg. Inst. Law (chap. 612, Laws 1897), 
 
 sec. 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 aa 
 
 ageQ De Eemer v. Brown, 165 N. T. 419. 
 
190 Bab Examinations and Cotjeses of Study. 
 
 He must have actual knowledge. 
 
 Cobb v. Knapp, 71 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, irrespective of any question of intentional fraud 
 
 or actual injury. 
 
 Conkey v. Bond, 36 K Y. 427. 
 
 (Taussig v. Hart, 58 N". Y. 425. 
 
 168. 
 f 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 N. Y. 486. 
 
 169. 
 
 D can recover from A and B but not from C 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 his 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, 103 K Y. 620. 
 Miller v. Campbell, 140 K Y. 457. 
 Dom. Eel. Law (L. 1896, ch. 272), 
 sec. 22. 
 
Bab Examinations and Cotjbses of Study. 191 
 
 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 limiting 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. 
 Khowles v. Am. Ins. Co., 66 Hun, 220; 
 affd., 142 K T. 641; 61 App. Div. 
 350. 
 
 172. 
 
 The transaction was a sale, and A had no rights. Flour 
 from the identical wheat was not to be delivered. 
 
 Foster v. Pettibone, 7 N. Y. 433. 
 Tide Mack v. Snell, 140 K 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. 
 
192 Bab Examinations and Coubses of Study. 
 
 174. 
 
 B cannot offset Ms claim for damages. 
 
 The contract was one to "thereafter manufacture 5,000 
 watch cases." 
 
 There was no warranty which survived acceptance, nor 
 any 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, 170 K T. 162. 
 Bierman v. City Mils Co., 151 N. T. 
 
 482. 
 Oarleton v. Lombard Ayrea Co., 149 
 
 K". Y. 137. 
 
 175. 
 
 B can do nothing; he has no claim. The contract is 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. 417, Laws 
 1897), sec. 21, 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 N. Y, 
 
 553. 
 Encyc. of Evid., vol. 1, p. 580. 
 
Bab Examinations and Coueses of Study. 193 
 
 177. 
 
 The objection was that the account-hooks were not oompe" 
 tent nor proper as being the declarations of the party in his 
 own favor. The Court properly, ruled them out. If the 
 tradesman had then proven that the boots 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 foT 
 the consideration of the Court or jury. 
 
 Vosburgh v. Thayer, 12 Johns. 461. 
 Smith v. Kentz, 131 N. Y. 169, 171. 
 
 178. 
 
 The deed proves itself, 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 N. Y. 186. 
 Stephens Digest Law Evidence (Beers' 
 ed., 33". 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 pr deceit are admissible. 
 
 Vol. 14 Encyc. of Law (2d ed.), 494. 
 Howison v. Alabama Coal & Iron Co., 
 
 70 Eed. Eep. 683. 
 Koop v. Handy, 41 Barb. 464. 
 13 
 
194 Bab Examinations and Coubses of Study. 
 
 180. I 
 
 The ground of the objection was that A was endeavoring 
 to impeach his own witness. The objection was ^sustained. 
 
 "A party may contradict his own witness as to a fact 
 material in 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." n 
 
 Coulter v. Am, Merchts. Un. Exp. Co., 
 
 56 K Y. 585. 
 
 181. 
 
 Forgery in the first degree. 
 
 Penal Code, sec. 510. 
 
 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 K Y. 502. 
 
 People v. Chapleau, 121 K Y. 266. 
 
 1 Greenleaf on Evidence, sec. 219. 
 
 183. 
 
 The conviction will stand. 
 
 A and B confederated to rob 0. 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 C. Both 
 
 were principals and guilty of robbery. B was properly; 
 
 convicted. ^ , _ , _, 
 
 Penal Code, sees. 224, 29. 
 
 184. 
 The company is not liable. A was injured by the light- 
 ning which was the proximate cause of his injury, and not 
 
Bab Examinations and Courses of Study. 195 
 
 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 IT. Y. 98 
 el 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. R Ob., 45 
 
 K Y. 628. 
 Mitchell v. Allen, 25 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 K 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 daughter, 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 will takes effect, the proceeds of the sale will be- 
 come personal estate, and no court oan substitute the money 
 received b^ the testatrix for the land devised." 
 
 Ametrano v. Downs, 170 K Y. 391. 
 Adams v. Winne, 7 Paige Oh. 97. 
 Beck v. McGillis, 9 Barb. 35. 
 
196 Bab Examinations and Coubses of Study. 
 
 The direction on the envelope that it was "his will and 
 intention that the stock should go to C, 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. 
 
 Redfield'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. 
 
 Redfield'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 
 
 Real Property Law (chap. 547, Laws 
 1896), sees. 281, 170. 
 
 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 N. Y. Supp. 32; 29 Encyc. of Law 
 [1st ed.], 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 K Y. 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 
 
Bab Examinations and Cotteses of Study. 197 
 
 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 matteT of fact he bought it with intent that 
 an offensive and detrimental stable should be erected 
 thereon, he was guilty of a fraud, directly connected with 
 the matter in litigation, and will not be decreed specific 
 performance. -^ n ^ & Eng ^^ rf Law (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 sold 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 K Y. 268. 
 
 The maxim 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 treasr 
 urer to execute the note for a special purpose. Corporate 
 
198 Bab Examinations and Coubses op Study. 
 
 action to bind the corporation oan only be had by appropri- 
 ate action of its governing board; that is, by the collective 
 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 K. C. 
 Church, 109 K Y. 512. 
 
 194. 
 
 Tbe 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 loss they may respectively sustain by the transaction. 
 Stock Corp. Law (chap. 564, Laws 1890), 
 sec. 48. 
 
 195. 
 
 It is imlawful for a foreign stock corporation, other than 
 a moneyed corporation, to do business in this State without 
 having first procured from the Secretary 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. 567, Laws 1890, as amended). 
 It must also pay a license fee. 
 
 Sec. 181 Tax Law (chap. 908, Laws 
 1896). 
 
 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 
 
Bab Examinations and Coubses of Study. 199 
 
 summons and complaint, and defend such action so far as 
 the issues affect him. 
 
 Sec. 1757, Code Civ. Pro©. 
 
 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. Green, 69 K Y. 553. 
 Rice v. Butler, 25 App. Div. 38S, 392. 
 MacGreal v. Taylor, 167 U. S. 688 and 
 note, Book 42, Co-op. Ed. U. S. 
 Kepts., 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 during 
 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. 
 McCutchen v. McGahay, 11 Johns. 281. 
 Bloomingdale v. Brinckerhoff, 2 Misc. 
 
 49. 
 Daubney v. Hughes, 60 K Y. 187. 
 
200 Bab Examinations and Courses of Study. 
 
 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. R. Co., 53 
 
 N. Y. 575. 
 S. R. T. Co. v. Mayor, 128 K T. 10. 
 People ex rel. v. Thompson, 98 K". Y. 
 
 6 at 11. 
 Matter of Pet. of 1ST. Y., L. & W. R. R 
 
 Co., 99 N. Y. 12. 
 Matter of City of Buffalo, 68 K Y. 167. 
 Matter of K Y. C. & H. R. R. Co., 11 
 
 N. Y. 249. I 
 
 200. 
 
 The sentence 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." 
 
 1% 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 time 
 within which indictments may be found. 
 
 People v. Lord, 12 Hun, 282. 
 
 Citing Wharton's Crim. Law, Vol. 1, sec. 
 
 444a. 
 Vide Carpenter v. Shimer, 24 Hun, 465. 
 People v. O'ETeil, 109 K Y. 251. 
 
Bab Examinations and CotrRSES or Study. 201 
 
 201. 
 SUPKEME COURT, ALBANY COUNTY. 
 
 JAKE DOE, an Infant, by A. B., her Guard- 
 ian, Plaintiff, 
 
 against 
 
 JOHN STILES, Defendant. 
 
 The plaintiff complaining 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. T., upon application duly made on her behalf, the above- 
 named A B was, by an order of this Court, duly appointed 
 the guardian of the plaintiff for the purposes of this action. 
 
 III. That heretofore the defendant made his promissory 
 note in writing, dated on the second day of January, 1903, 
 at Albany, N. Y., and thereby promised to pay to the plain- 
 tiff or to her 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, !N". 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. Proa, 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 
 
202 Bab Examinations and Coueses of Study. 
 
 in a case where he would be privileged from testifying as a 
 witness concerning an allegation or denial contained in the 
 pleading. 
 
 Code Civ. Proa, 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. Dillon, 97 K T. 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 repljj 
 to the new matter. 
 
 If a reply is necessary and the plaintiff fails to reply, 
 applj, upon notice, for judgment thereon. 
 
 Code Civ. Proc, sees. 514, 515, 516. 
 
 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 affidavit, 
 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 
 
Bab Examinations and Courses of Study. 203 
 
 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 takes 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 tribunal 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- 
 Thomson v. Tracy, 60 K Y. 31. 
 Code Civ. Proc, sees. 2091, 2102. 
 
 COMMONWEALTH OF MASSACHUSETTS, , 
 
 207. 
 
 County of Suffolk, ) ' 
 
 On this day of , 1903, before me person- 
 ally appeared A B, to me personally known, 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. 
 
 XT, 
 Justice of the Peace, or Notary Public. 
 
 Attach county clerk's certificate as to Massachusetts offi- 
 cer's authority. 
 
 Vide Real Property Law (chap. 547, 
 Laws 1896), sees. 249 et seq. 
 
 20S. 
 
 A'a mortgage is ahead of C'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, 235. 
 
204 Bab Examinations and Courses of Study. 
 
 209. 
 
 From and D. The farm having been devised to the 
 son and daughter and their heirs to be held in joint ten- 
 ancy," 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 Q, and when B died in- 
 testate, his share went to his daughter D, who with owned 
 the entire farm at the time your client desired ^a. purchase 
 
 Kent's Com., Vol. 4, pp. *358, *359, 
 
 *360. 
 Real Property Law (chap. 547, Laws 
 
 1896), sees. 56, 281. 
 IWillard on Real Estate, pp. 177, 183. 
 
 210. 
 
 A cannot recover from B the $1,000 paid for the reason 
 that 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 K Y. 537. 
 Thayer v. Rock, 13 Wend. 53. 
 Harsha v. Reid, 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 paidHn an action for money had 
 and received, and he may recover the value of his services 
 and of his property 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." 
 
 Day v. K Y. C. R. R. Co., 51 N. Y. 590. 
 
 Reed v. McConnell, 133 ST. Y. 435. 
 
Bab Examinations and Coubses of Study. 205 
 
 211. 
 
 Yes. Not knowing that A was married at the time of the 
 promise. She can sue at onoe; no demand or refusal is neces- 
 sary, it being impossible for A to perform. 
 
 Oammerer v. Muller, 60 Hun, 578. 
 Kerns v. Hagenbuchle, 17 N. Y. Supp. 
 
 367. 
 Blattmacher v. Saal, 29 Barb. 22. 
 Johnson v. Caulking, 1 Johns. Cases, 116. 
 Willard v. Stone, 7 Cow. 22. 
 Windmuller v. Pope, 107 N. Y. 674. 
 Burtis v. Thompson, 42 N. Y. 246. 
 
 212. 
 
 Apply the money on the second or partnership execu- 
 tion. Partnership property is not liable for individual debts 
 until the partnership debts are paid. 
 
 Eighth Nat. Bank v. Pitch, 49 N. Y. 539. 
 
 Muir v. Leitch, 7 Barb. 341. 
 
 Kelly v. Scott, 49 N. 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. 
 Malloney 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 transf erred a promissory note, not having the words, 
 "given for a patent right," written or printed legibly and 
 prominently on the face of such note above the signature 
 
206 Bab Examinations and Coubses of Study. 
 
 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 hy him to he patented. 
 
 Sec. 330, Nego. Inst. Law (chap. 612, 
 Laws 1897). 
 
 Sec. 2, chap. 65, Laws 1877. 
 
 215. 
 
 Judgment for the X Bank. D, one of his partners, was 
 notified of the nonpayment and dishonor of the note. 
 
 " Where the parties to he notified are partners, notice to 
 any one partner is notice to the firm, even though there has 
 
 been a dissolution." L_ ^ 
 
 Nego. Inst. Law (chap. 612, Laws 1897), 
 
 sec. 170. 
 Eaton & Gilbert on Com. Paper, p. 491. 
 Hubbard v. Matthews, 54 N. Y. 43, 50. 
 
 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 Remer v. Brown, 165 N". Y. 419. 
 
 C was entitled to actual knowledge of the name of A's 
 principal. 
 
 Cobb v. Knapp, 71 N". Y. 348. 
 
 217. 
 
 B can recover his commission from both A and C. 
 
 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 
 
Bar Examinations and Ooubses of Studt. 207 
 
 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 K Y. 75. 
 Gracie v. King, 56 App. Div. 203. 
 
 218. 
 
 ia entitled to the benefit 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. 
 Higgins v. Wright, 43 Barb. 461. 
 Merchants & Mfrs. Bank v. Cumings, 
 
 149 N. T. 364. 
 Oowen's Treatise, Vol. 1 (5th ed.), sec. 
 
 457. 
 
 219. 
 
 A can only recover $5,000, the amount he paid. He is 
 entitled to indemnity only, and cannot recoveT 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 his 
 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. 503. 
 Steinback v. Diepenbrock, 158 N. Y. 24. 
 Classey v. Met. Life Ins. Co., 84 Ilun, 
 350. 
 
2 OS Bab Examinations and Cotjbses ojf Study. 
 
 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. T. "91), and is mot 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., 
 110 KT. Y. 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 original owner. 
 Foster v. Pettibone, 7 K Y.433. 
 Maek v. Snell, 140 1ST. Y. 193. 
 
 223. 
 
 Yes. By proving that the fire occurred through the negli- 
 gence of the warehouseman; he is liable under those cir- 
 cumstances notwithstanding his receipt which exempted him 
 from liability for loss or damage to the stored goods by fire. 
 
 Germania Fire Ins. Co. v. M. O. K. B. 
 
 Co., 72 K Y. 90. 
 Claflin v. Meyer, 75 K Y. 260. 
 Stewart v. Stove, 127 IT. 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 
 like the sample exhibited and that amounts in law to a " war- 
 
Bar Examinations and Coueses of Study. 209 
 
 ranty" which survives acceptance, with knowledge of the 
 breach thereof. 
 
 Brigg v. Hilton, 99 K T. 517. 
 Fairbank Canning Co. v. Metzger, 118 
 
 K Y. 260. 
 Zabriskie v. C. V. R E. Co., 131 N. T. 
 
 72. 
 Kent v. Friedman, 101 1ST. Y. 616. 
 Mack v. Snell, 140 X. Y. 203. 
 
 225. 
 
 A is entitled to bring an action immediately for the breach 
 without tendering delivery. 
 
 Windmuller 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 may 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 difference 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 amount received, 
 sua far the balance of the purchase money." 
 
 Ackerman v. Rubens, 167 K Y. 408. 
 Van Brocklen v. Smeallie, 140 N. 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, unless 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. 589. 
 
 227. 
 
 The Court should direct the jury to acquit. A child of 
 the age of seven years and under the age of twelve years ia 
 .14 
 
210 Bar Examinations and Courses of Study. 
 
 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. The district attorney failed to make proof 
 of capacity. 
 
 Penal Oode, sec. 19. 
 
 6tone v. Dry Dock, etc., E. R. Co., 115 
 N. Y. 109. 
 
 228. 
 
 The objection was sustained. 
 
 It does not appear that the wife's statement wa9 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 permitted 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 will be to discredit 
 the witness, it is properly excluded." 
 
 Bullard v. Pearsall, 53 N. Y. 230. 
 See also 1 Greenleaf Ev., sec. 444. 
 Putnam v. TT. S. 162, U. S. 687. 
 
Bab Examinations and Coueses of Study. 211 
 
 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. Ml J. Assoc, 123 K Y. 207. 
 Gates v. N. T. Eecorder Co., 155 N. Y. 
 232. 
 231. 
 
 By attachment. 
 
 Andrews v. Andrews, 2 Johns. Cases, 
 
 109. 
 
 Jackson t. Mann, 2 Gaines, 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, oi 
 indicted for misdemeanor. 
 
 Code Grim. Proc, sees. 611, 617, 618, 
 
 619. 
 Code Civ. Proc, sees. 8-13. 
 Penal Code, sec. 143, subd. 4. 
 
 232. 
 Robbery 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 posses- 
 sion of the stolen property. 
 
 Penal Code, sees. 225, 228. 
 
 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 K Y. 73. 
 
 People v. Schryver, 42 N. Y. 1. 
 
 People v. Guidici, 100 E". Y. 509. 
 
 Poole v. People, 80 K Y. 646. 
 
 Miles v. U. S., 103 U. S. 304. 
 
212 Bab Examinations and Cotteses of Study. 
 
 234. 
 
 The company was not liable. The act of the conductor in 
 detaining the passenger was willful misconduct, but in so 
 doing, he waa not acting in the course of his employment. 
 
 Mulligan v. N". Y. & E. B. E. Co., 129 
 
 K Y. 506. 
 Palmeri v. M. E. Co., 133 N. Y. 261. 
 MeLeod v. K Y. 0. & S/L. R E. Co., 
 
 72 App. Div. 119. 
 Nowacik v. M. St. E. Co., 166 K Y. 440. 
 Hart v. M. St. E. Co., 65 App. Div. 495. 
 Collins v. Butler, 83 App. Div. 18. 
 
 235. 
 
 A could not have prevented judgment. The owner of 
 personal property which has been stolen by another majj 
 waive the tort and sue the latter for and recover its value 
 upon an implied contract of sale. Where, however, the 
 owner thus electa 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 right so to do, and it was immaterial that C knew the 
 facts concerning A's title. C has a defense to the action in 
 replevin and can retain the horse as against the original 
 owner. ^ 
 
 Terry v. Munger, 121 K Y. 161. 
 
 Eussell v. McCall, 141 K. Y. 449: 
 
 Disbrow v. Westchester H. Co., 164 N". 
 Y. 424. 
 
 Btarr Cash Car Co. v. Eeinhart, 2 Misc. 
 116. 
 
 McNutt v. Hilkins, 80 Hun, 235. 
 
 236. 
 
 Judgment for B. A claim or demand to recover damages 
 for a personal injury is not assignable. 
 
 Code Civ. Proc, sec. 1910. 
 
Bab Examinations and Coueses of Study. 213 
 
 237. 
 
 The will is invalid under the provisions of section 6, chap- 
 ter 319, Laws 1848/ because it was executed within two 
 months of testator's death. 
 
 Stephenson v. Short, 92 K Y. 433. 
 Hollis v. Drew, 95 N. Y. 166. 
 Matter of Lampson, 161 ST. 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. 
 
 Eedfield on Surrog. Prac. (6th ed.), 
 
 sec. 229, p. 192. 
 Chap. 22, Laws 1869. 
 Code Civ. Proc, sees. 1868, 2727. 
 
 239. 
 
 £ 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 Bhe 
 died intestate. 
 
 B takes the $10,000 in personal estate under the will. 
 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 
 
214 Bab Examinations and Courses of Study. 
 
 father, subject to a tenancy by the curtesy in the intestate's 
 husband, issue of the marriage having been^born alive. 
 
 Real Property Law (chap. 547, Laws 
 
 1896), sees. 281, 284. 
 2 R. S. 56, sec. 1, as amended by Laws 
 
 1867, chap. 782, sec. 3. 
 Idem, p. 60, as amended, Laws 1867, 
 
 chap. 782, sec. 4. 
 Eedfield's Surrogate Prac. (6th ed.), 
 
 sec. 208, p. 164. 
 Hatfield v. Sneden, 54 1ST. 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 him. 
 
 Equity regards that as done which ought to have been 
 done. 
 
 Vol. XI Encyc. of Law (2d ed.), pp. 181, 
 
 182. 
 Goldman v. Bosenberg, 116 K Y. 85. 
 
 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 N. 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." 
 
Bab Examinations and Coubses of Study. 215 
 
 243. 
 
 Valid. " If the directors shall not be elected on the day 
 designated in the by-kws, or by law, the corporation shall 
 not for that reason be dissolved; but every director shall 
 continue to hold his office and discharge his duties until hia 
 successor has been elected." 
 
 Gen. Corp. Law, sec. 23, chap. 563, Laws 
 1890, as amended by chap. 687, 
 Laws 1892. 
 
 Geneva Min. Springs Co. v. Ooursey, 45 
 App. Div. 268. 
 
 Beardsley v. Johnson, 121 N. Y. 224. 
 
 iPhila., etc., v. HotchMss, 82 N. Y. 474. 
 
 244. 
 
 No. 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 Feng 
 
 Co., 86 Hun, 129. 
 6tock Corp. Law, sec. 29, Laws 1890, 
 chap. 564, as amended Laws 1901, 
 chap. 354. 
 
216 Bab Examinations and Coubses of Study. 
 
 246. 
 
 ■A! should not commence his action for divorce without 
 additional testimony. 
 
 " In actions for divorce «ra t^e ground of adultery, the 
 confessions of the, defendant are always admissible in evi- 
 dence, but to avoid thevdangar of collusion, the Court before 
 granting the decree mil ^eepure such corroboration of the 
 confession as to remove sill just suspicion of collusion. When 
 that is satisfactorily done\the confessions become a sufficient 
 basis for a judgment for 
 
 Madge v\ Madge, 42 Hun, 524. 
 Sigel v. Steel, 20 K Y. Supp. 377. 
 
 247. 
 
 The infant ia 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 
 
 ia bound thereby unless the 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 Barb. 160. 
 
 248. 
 
 To the husband. It will be observed that the services 
 were rendered 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. 
 
Bab Examinations and Cotoses of Study. 217 
 
 The husband, under the circumstances 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. T. 314. 
 
 249. 
 
 The office of overseer of the poor 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, 92 N". Y. 191; Koch v. Mayor, 152 K 
 T. 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 "Wo private or local bill, which may be 
 passed by the legislature, 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 morei. 
 
 Vol. YI 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. 
 
218 Bab Examinations and Coueses of Study. 
 
 251. 
 COURT, COUNTY. 
 
 TITLE. 
 
 The defendant, for answer to the complaint of the plaintiff 
 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, 
 
 J.Y. 
 
 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. 1ST. Y. & M. K. Co., 130 N". 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 N. Y. 26. 
 People ex rel. Grannis v. Eoberts, 163 
 
 ff. Y. 70. 
 People ex rel. Linton v. Brooklyn H. R. 
 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 
 
Bab Examinations and Coueses of Study. 219 
 
 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. Proa, 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 second 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- 
 sesses." 
 
 M&Nutt 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. Proa, sec. 413. 
 Minzesheimer v. Bruns, 1 App. Div. 
 
 324. 
 Hulbert v. Clark, 128 N. Y. 295. 
 ;e v. Culver, 147 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. 
 
220 Bab Examinations and Cotjbses of Study. 
 
 258. 
 
 The deed is valid as to the two first life estates, viz., those 
 of B and C. On the death of 0, 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. 
 
 Beal Property Law (chap. 547, Laws 
 18%), sec. 33. 
 
 259. 
 
 D's unrecorded mortgage takes precedence over A's deed. 
 A had actual notice of D's mortgage,A?f3\j8iat takes the place 
 of the notice presumed by the recording acts. 
 
 Beal Property Law (chap. 547, Laws 
 1896), sec. 241, and cases cited in 
 Logan B. P. Law, pp. 88, 89, 90. 
 
 260. 
 
 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. B. E. Co., 93 N. Y. 
 
 532. 
 Kenney v. K 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 be 
 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 hinruntil he receives notice 
 of its acceptance, or unless he receives such notice by a spe- 
 
Bab Examinations and Courses of Study. 221 
 
 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. Y. 441. 
 
 Watson v. Eussell, 149 K Y. 391. 
 
 C. P. I. Co. v. A. Ins. Co., 127 K. Y. 618. 
 
 262. 
 
 B and C can compel A to account to the firm for the value 
 of the lease taken in his 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 the 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 1ST. Y. 244. 
 
 Robinson v. Jewett, 116 K Y. 51, 52. 
 
 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 K Y. 657. 
 Magovern 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 
 
222 Bab Examinations and Coueses of Study. 
 
 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 wina. 
 
 " 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. 612, Laws 1897), 
 
 sec. 324. 
 Eaton & Gilbert on Com. Paper, p. 635. 
 First Nat. Bank v. Leach, 52 2J. Y. 350. 
 Thomson v. Bank, 82 K 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 K 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 IN. Y. 429. 
 
Bab Examinations and Coueses of Study. 223 
 
 268. 
 
 Demurrer sustained. 
 
 The bank was not privy to the fraud and Koe was not dis- 
 charged thereby. 
 
 Coleman v. Bean, 1 Abb. Ct. App. Dec. 
 394. 
 
 269. 
 
 A is right and is liable as surety for the rent of tbe 
 extended term. 
 
 The holding o^ver was continuous and under the lease, the 
 stipulated rent of which C guaranteed. 
 
 Dufau v. "Wright, 25 "Wend. 636. 
 Kice v. Loomis, 139 Mass. 302, 1 N". 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 K. R. 
 
 Co., 73 K 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 taking 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 
 
224 Bae Examinations and Cotjeses of Studt. 
 
 was not necessary that A should have been damnified by B's 
 death. 
 
 Steinback v. Diepenbrock, 158 K Y. 30. 
 
 Ferguson v. Mass. Mut. Life Ins. Co., 32 
 
 Hun, 306, 811; affd., 102 K Y. 647. 
 
 Cook 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 half 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 guilty of conversion and liable to A for 
 their value. 
 
 Pierce v. Schenck, 3 Hill, 28. 
 Mack v. Snell, 140 N". Y. 193. 
 
 273. 
 
 Judgment for B. Bailor and bailee. 
 The moment A drove the horse beyond the village of C, 
 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. 
 Costello v. Herbst, 18 Misc. 179. 
 21 Am. & Eng. Encyc. of Law (1st ed.), 
 p. 647. 
 
Bab Examinations and Courses of Studt. 225! 
 
 275. 
 
 Judgment for the jeweler. On A's refusal to give his 
 note as agreed, the sale became absolute and the debt for 
 the same became due forthwith. 
 
 Corlies v. Gardner, 2 Hall (N. 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. 
 
 Felska v. N". Y. C. R. R. Co., 152 K T. 
 339. 
 
 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 
 ■tatements. 
 
 Stephen's Dig. Law of Ev. (Beers' N". Y. 
 
 ed.), arts. 26, 97, 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 bit- 
 ter's declarations in the same manner and to the same extent 
 as if they were made by himself. 
 
 1 Greenleaf'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. 
 15 Lehman v. Frank, 19 App. Div. 442. 
 
226 Bab Examinations and Coubses of Study. 
 
 279. 
 
 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. 
 
 Y. ed.), art. 136, p. 461. 
 Halsey v. Sinsebaugh, 15 N. Y. 485. 
 iMarcly v. Shults, 29 K Y. 346, 351. 
 Howard v. McDonough, 77 N. Y. 592. 
 Wise v. Phoenix, 101 K Y. 637. 
 Eussell v. Hudson E. R. Co., 17 K Y. 
 
 134. 
 People v. McLaughlin, 150 ~N. Y. 392. 
 "Nat. Ulster Co. Bank v. Madden, 114 
 
 N. Y. 284. 
 [Wilson v. Bangs Co. E. E. E. Co., 114 
 K 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. Greenwald, 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 
 
Bab Examinations and Courses of Study. 227 
 
 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 Grim. Proa, 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 Code, sec. 218. 
 
 People v. Conner, 53 Hun, 353. 
 
 People v. Kyan, 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 same 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. 
 
 People v. Murphy, 3 Hun, 114. 
 
 2 Bish. Crim. Law (8th ed.), sec. 1156. 
 
 Penal Code, sees. 35, 224. 
 
 284. 
 
 Although the person injured was a trespasser, he was not 
 an outlaw who could be willfully 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 
 
228 Bab Examinations and Courses of Study. 
 
 would be required to exercise reasonable oare to prevent 
 injury. 
 
 Vide 21 Am. & Eng. Encyc. of Law (2d 
 
 ed.), 472. 
 Sterger v. Van Sicklen, 132 K Y. 499. 
 Walsh v. F. K. Co., 145 K T. 301. 
 
 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 N. Y. 109, 
 
 110. 
 Tucker v. N. Y. C, 124 K 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 own 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 
 
Bab Examinations and Coubses of Study. 229 
 
 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 provision. 
 The intention to put the widow to an election between dower 
 and the provision may not be inferred from the extent of the 
 
 provision." 
 
 Konvalinka v. Schlegel, 104 N. Y. 125. 
 
 Kimbel v. Kimbel, 14 App. Div. 570. 
 
 Closs v. Eldert, 30 App. Div. 339. 
 
 Matter of Grotrian, 30 Misc. 23. 
 
 Matter of Gordon, 172 N. Y. 25. 
 
 Horstman v. Flege, 172 N. Y. 381. 
 
 288. 
 The grandchildren born before the death of A take the 
 entire estate, each one-quarter, to the exclusion of the grand- 
 child born 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 .will, 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 within 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 years 
 after such disability has been removed. 
 
 Code Civ. Proc, sec. 2653a. 
 
 290. 
 
 No. A cannot recover. He knew that the stock had 
 reached $150 a share, the price at which he had instructed 
 his brokers to sell, 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 
 
230 Bab Examinations and Courses of Study. 
 
 principles of natural justice required A at that time to have 
 spoken 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 
 
 agreement," 
 
 Unckles v. Colgate, 148 K Y. 529. 
 
 If the injured person was induced to settle his cause 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 back what he received on the settlement, 
 or tender it and keep the tender good. "He who seeks 
 equity must do equity." 
 
 Vandervelden v. Chicago & E". "W. By. 
 
 Co., 61 Fed. Rep. 54. 
 Vol. 11 Am. & Eng. Encyc. of Law (2d 
 ed.), p. 160. 
 
 The city has no remedy; the contract was ultra vires and 
 unexecuted upon both sides. 
 
Bae Examinations and Coueses of Study. 231 
 
 " Contracts of corporations are ultra vires when they in- 
 volve adventures outside of and not within the scope 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 JST. Y. 135. 
 Bath Gas Light Co. v. Claffy, 151 K T. 
 
 31. 
 Yought v. East Bldg. & Loan Assn., 172 
 
 M". T. 518. 
 
 294. 
 
 TTo; 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 existence 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, all 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 1890, chap. 564), 
 sec. 22. 
 
 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. 
 
 Kailroad Law (Laws 1890, chap. 565), 
 sec. 94. 
 
232 Bab Examinations and Courses of Study. 
 
 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 K Y. 263. 
 Jooss v. Fey, 129 K T. 201. 
 
 B has no dower in her husband's share, the divorce having 
 been granted to the husband. 
 
 Code Civ. Proa, 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. 
 
 Real Property Law (chap. 547, Laws 
 1896), sec. 281. 
 
 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. Rel Law (Laws 1896, chap. 272), 
 sec 27. 
 
Bar Examinations and Courses of Study. 233 
 
 299. 
 
 The entire assets must, he first applied to the payment of 
 its outstanding bills. 
 
 " In case of the insolvency of any bank or banking associa- 
 tion, the bill holders thereof shall be entitled to preference 
 in payment, over all other creditors of such bank or 
 association." 
 
 K T. Const, of 1894, art. VIII, sec. 8. 
 
 300. 
 
 The appellant succeeds. The jury, -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 Code, sec. 36. 
 
 N. Y. Const., art. 1, sec. 6. 
 
 People v. Dowling, 84 K T. 478. 
 
 People v. Cignarale, 110 K Y. 27. 
 
 People v. McCarthy, 110 M". Y. 315. 
 
 301. 
 
 COURT. 
 
 Teial Desibed 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 
 
234 Bab Examinations and Courses of Study. 
 
 failure to appear, or answer, judgment "will be taken against 
 you by default, for the relief demanded in the complaint. 
 
 Dated, , 190.. 
 
 , 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 20 
 of the Laws of 1900, 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, how- 
 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. 
 
 (Code Civil Procedure, sees. 1942, 1944.) 
 
Bar Examinations and Coukses of Study. 235 
 
 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 Nat. Bank v. Pacific Nat. 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.) 
 
236 Bab Examinations and Courses of Study. 
 
 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. R. Co. v. Arthur,. 
 
 90 1ST. Y. 234. 
 Bassett v. Leslie, 123 K T. 396. 
 Hirsch v. Mayer, 165 K Y. 236. 
 Bernstein v. Hamilton, 26 App. Div. 
 
 206. 
 Stevenson v. N". 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." 
 
 Beal Property Law (Chapter 547, Laws 
 
 1896), sec. 197. 
 Fowler's Real 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 
 
Bab Examinations and Courses of Study. 237 
 
 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 N. Y. 269. 
 
 Gray v. Kaufman Dairy & I. C. Co., 162 
 1ST. Y. 388. 
 
 Crane v. Edwards, 80 App. Div. 333. 
 
 309. 
 
 B is liable for tbe rent. The tenant in possession of the 
 demised premises wrongfully withheld tbe same from both 
 A and B. 
 
 " It is the acceptance of -a lease, not the acceptance or 
 occupation of the premises, tbat creates the liability under a 
 covenant to pay rent contained in the lease. 
 
 " Tbe extent of tbe landlord's implied agreement is tbat 
 be has a good title and can give a free and unincumbered 
 lease for tbe term demised, and if the tenant is kept out 
 of possession by tbe act of any party otber than the land- 
 lord, he must resort to his proper remedy to get possession 
 tinder the lease." 
 
 Smith v. Barber, 96 App. Div. 236. 
 Mirsky v. Horowitz, 46 Misc. 257. 
 
 310. 
 
 Judgment for A. Contract void under tbe statute of 
 frauds. 
 
 Personal Property Law, chapter 417, 
 
 Laws 1897 (sec. 21, subd. 6). 
 Bennett v. Hull, 10 Johns. 364. 
 
 311. 
 
 Judgment for A, under the rule tbat wbere 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, tbe 
 vendor is not liable if the property is destroyed by accident 
 without his fault, so that delivery becomes impossible. Tbe 
 .basis of this doctrine is, that there is an implied condition 
 
238 Bar Examinations and Courses of Study. 
 
 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". T. 62. 
 
 Kein v. Tupper, 52 1ST. Y. 550, 556. 
 
 Goldman v. Rosenberg, 116 N Y. 78. 
 
 Stewart v. Stone, 127 K Y. 500, 507. 
 
 Lorillard v. Clyde, 142 1ST. Y. 456, 462. 
 
 Herter v. Mullen, 159 N. Y. 38, 43. 
 
 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. v. Sears, 
 45 ]ST. Y. 797. 
 
 Hackett v. Stanley, 115 N. Y. 625, 630. 
 
 Magovernv. Eobertson, 116 N.Y. 61, 65. 
 
 Bank v. G-allaudet, 122 1ST. Y. 655. 
 
 Orvis v. Curtiss, 157 JST. 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 N". Y. 1. 
 
 Parsons on Partnership, sees. 100, 102. 
 
 Griswold v. Haven, 25 N 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 
 
Bab Examinations and Coukses of Study. 239 
 
 hence were nonnegotiable. Nor 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. Arnot, 57 N. Y. 253, cited' in 
 Bank v. Bank, 170 K Y. 65. 
 
 315. 
 
 Judgment for 0. 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. Eose, 56 1ST. Y. 137. 
 
 Dutchess Co. Mut. Ins. Co.. v. Hachfield, 
 73 1ST. 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 K Y. 410. 
 
 Smith v. Kidd, 68 1ST. Y.'l30. 
 
 Brewster v. Carnes, 103 JST.' Y. 556. 
 
 Crane v. Gruenewald, 120 ISt . Y. 274. 
 
 Central Trust Co. v. Folsom, 167 N". 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 not 
 estopped from asserting his title. While the transfer and 
 power of attorney gave B an apparent ownership in case he 
 Lad claimed title or an apparent authority to sell as agent, 
 
240 Bab Examinations and Courses of Study. 
 
 it did not hold him out as authorized to make a loan or 
 pledge the stock. 
 
 Bank v. Livingston, 74 1ST. T. 223. 
 Talmage v. Third Eat Bank, 91 JST. Y. 
 
 533. 
 Shaw v. S. H. K Co., 144 K Y. 220, 
 224. 
 
 318. 
 
 D 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 1ST. 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. 
 Bichards on Insurance, 34. 
 
Bar Examinations and Coueses op Study. 241 
 
 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! 
 N. Y. 317. 
 
 322. 
 
 The guest can recover. The innkeeper was an insurer of 
 the safety of the property of his guest brought infra hospitvm. 
 Hulett v. Swift, 33 1ST. Y. 571. 
 Wilkins v. Earle, 44 1ST. Y. 172. 
 Mowers v. Fethers, 61 1ST. Y. 38. 
 Adams v. N J. Steamboat Co., 151 K Y. 
 166. Tide, L. 1855, ch. 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 TS. Y. 
 
 431. 
 Chamberlain v. The Western Trans. Co., 
 
 44 N. Y. 307. 
 Lamb v. Camden & Amboy E. B. Co., 46 
 N. 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. 
 
 16 
 
242 Bak Examinations and Courses of Study. 
 
 " Where a machine has been delivered to the vendee unde* 
 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 inefficiency." 
 
 Hooper v. Story, 155 K Y. 171. 
 Miller 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 
 (13th ed.), sec. 443 ; Hunter v. Wetsell, 84 K T. 549, 556, 
 and authorities there cited ; Becker v. Koch, 104 N. Y. 394, 
 401, and authorities there cited.)" 
 
 Euhl 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 txial 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 trial. 
 
 Code of Civil Procedure, sees. 867, 868, 
 869. 
 
Bak Examinations and Coueses of Study. 243 
 
 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 was 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- 
 plies 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 K Y. 613, 
 Folinsbee v. Sawyer, 157 1ST. Y^ 199. 
 
 329. 
 
 The court should admit the testimony. 
 It was competent as tending to show a fraudulent intent. 
 Chisholm v. 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. penal ^ ^ m 
 
 Code Civil Procedure, sec. 832. 
 
 331. 
 
 Yes. Gnilty of a misdemeanor; of conspiring to commit, 
 the crime of burglary. No overt act was necessary under 
 the circumstances disclosed. 
 
 " No agreement except to commit a felony upon the per- 
 
244 Bak Examinations and Courses of Study. 
 
 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." penal ^ ^ m> m 
 
 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 1ST. 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 Code, sec. 22. 
 People v. Corey, 148 1ST. 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. Benton y pra ^ g Wend 3g5 
 
 Rice v. Manlev, 66 N. Y. 82, 85. 
 
 Rich v. N. Y. C. & H. R. R. Co., 87 
 
 K Y. 382, 399. . 
 New York L. I. Co. v. Chapman, 118 
 
 1ST. Y. 288, 294. 
 
Bab Examinations and Courses of Study. 245 
 
 335. 
 
 Judgment for M. The 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 way, and the right of 
 way carried with it the incidental right to make necessary 
 
 repairs. McMillian v. Cronin, 75 K T. 474. 
 
 Bristor v. Burr,. 120 K T. 427, 431. 
 
 336. 
 
 The company was 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. Kailroad Co., 90 N. Y. 77. 
 Avery v. N. Y. C. & H. E. R Co., 121 
 
 N. Y. 31, 34. 
 Craven v. Bloomingdale, 171 N. 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. Ctooks, 132 K 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 1ST. Y. 73. 
 
 338. 
 
 It was sufficiently signed under the statute which requires 
 it to be signed at the end thereof. The testator by signing 
 
246 Bar Examinations and Courses of Study. 
 
 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. Duffle, 94 1ST. Y. 535. 
 
 Matter of Laudy, 161 K Y. 429, 432. 
 
 339. 
 
 Judgment should be for A and C. Under the will A ac- 
 quired a life estate and C a vested remainder, which consti- 
 tuted 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 enjoy- 
 ment of the estate and not to the time of its vesting, espe- 
 cially in devises of real estate. 
 
 Moore v. Lyons, 25 Wend. 119. 
 
 Livingston v. Greene, 52 N. Y. 118. 
 
 Ackerman v. Gorton, 67 1ST. Y. 63, 66. 
 
 Nelson v. Russell, 135 K Y. 137. 
 
 Connelly v. O'Brien, 166 K Y. 406. 
 
 Lewis v. Howe, 174 N. 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 vinpaid purchase price, and 
 the taking of a promissory note therefor did not affect the 
 lien. 
 
 Garson v. Green, 1 Johns. Ch. 308. 
 
 Fisk v. Porter, 2 Keyes, 74. 
 
 Chase v. Peck, 21 K Y. 581, 584. 
 
 Benedict v. Benedict, 85 K Y 625. 
 
 Maroney v. Boyle, 141 ]ST. Y. 462. 
 
 Hubbell v. Hendrickson, 175 K 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 only the rental 
 
Bak Examinations and Courses ojt Study. 247. 
 
 value of the lots, and B might, by paying the judgments ob- 
 tained therefor, in effect make himself A's tenant against 
 his will, and prevent his enjoyment and improvement of his 
 
 property. Wheelock v. Noonan, 108 N. T. 179. 
 
 Tallman v. N. E. K. R. Co., 121 K T. 
 
 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 was so 
 far performed that equity would enforce it, and the statute 
 of frauds was no defense. 
 
 Smith v. Smith, 125 N. 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. 
 The General Corporation Law (Laws 
 1890, chap. 563, as amended by Laws 
 1892, chap. 687), 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. 
 R E. Co., 150 TS. Y. 426. 
 
248 Bar Examinations and Coueses of Study. 
 
 345. 
 
 The corporation had no defense because the defense of 
 usury may not be interposed by a corporation. 
 Laws 1850, chap. 172. 
 Stewart v. Bramhall, 74 1ST. Y. 85. 
 Ludington v. Kirk, 17 Misc. 129. 
 Hubbard v. Tod, 171 IT. 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 Relations Law (Laws 1896, 
 chap. 272), sec. 53. 
 
 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 1896, chap. 
 
 547), sec. 176. 
 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 1896, 
 
 chap. 272), sec. 4. 
 
 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. 
 
Bar Examinations and Courses of Study. 249 
 
 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 N. Y. 137, at 151. 
 
 Bill of Bights, 1 Eev. Stats. 94, sec. 14. 
 
 U. S. Const., VI Amendment. 
 
 351. 
 
 AFFIDAVIT OF SERVICE. 
 STATE OF NEW YORK, ) 
 
 L go • 
 
 Axbany City and County, j 
 
 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 No. 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, 18. 
 Code Civil Procedure, sec. 426. 
 
250 Bab Examinations and Coubses of Study. 
 
 352. 
 
 D, the defendant, wins. The demurrer should he sus- 
 tained. The action abated upon the death of C, the wrong- 
 doer, and could not he maintained against his representa- 
 tives. 
 
 Hegerich v. Keddie, 99 N. Y. 258. 
 
 Moriorty v. Bartlett, 99 1ST. Y. 651. 
 
 Brackettv. Griswold, 103 1ST. Y. 425, 428. 
 
 Blake v. Griswold, 104 1ST. Y. 613. 
 
 Matter of Meekin v. B. H. K. R. 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 K 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 K Y. 373. 
 
 Wheelock v. Lee, 64 K 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. 
 
 Bima v. Rossie Iron Works, 120' N. Y. 
 433. 
 
Bar Examinations and Courses of Study. 251 
 
 356. 
 
 AFFIDAVIT OF MEEITS. 
 (Title of Action.) 
 STATE OF NEW YORK, 
 
 *} 
 
 Albany City and County ' 
 
 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 statement, 
 and verily believes. 
 
 (Signed) JOHN DOE. 
 
 Sworn to before me, this . . . . ) 
 day of , 1905. } 
 
 Commissioner of Deeds 1 , 
 
 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. Farrington, 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 
 
252 Bak Examinations and Cotjeses of Study. 
 
 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 K Y. 171. 
 
 Donnelly v. Brooklyn, 121 1ST. Y. 139. 
 
 Sage v. Brooklyn, 89 1ST. 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 1ST. Y. 608. 
 
 9 Cyc. 316, 356. 
 
 Kenss Glass Factory v. Beid, 5 Cowen, 
 588, 619, 620. 
 
 Smith v. Ware, 13 Johns. R 257. 
 
 Beach on Contracts, sec. 153. 
 
 The rule of " payment for honor supra protest " has no 
 relation to the question. 
 
 Eaton & Gilbert on Commercial Paper, 
 p. 625. 
 
Bab Examinations and Coubses of Study. 253 
 
 361. 
 
 Judgment for plaintiff. 
 
 "A hiring at so much 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 1ST. T. 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 1897, chap. 
 
 420), sec. 30. 
 Durant v. Abendroth, 69 1ST. Y. 148. 
 Hotopp v. Huber, 160 1ST. Y. 528. 
 Met. Nat. Bank v. Sirret, 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 the 
 action." Yerkeg v> McFaddenj 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 
 
254 Bab Examinations and Coueses of Study. 
 
 notwithstanding that from want of capacity the * * * 
 infant may incur no liability thereon." 
 
 Negotiable Instruments Law (Laws 1897, 
 
 chap. 612), 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 act, reissue 
 and further negotiate the same. But he is not entitled to en- 
 force payment thereof against any intervening party to whom 
 he was personally liable." 
 
 Negotiable Instruments Law (Laws 1897, 
 
 chap. 612), 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 C 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. 157, 158 
 
 (5th ed.), and cases cited. 
 Nelson v. Cowing, 6 Hill, 336. 
 Smith v. Tracy, 39 N. Y. 79. 
 Bierman v. City Mills Co., 151 N. Y. 
 
 489. 
 Wait v. Borne, 123 N Y. 592. 
 Sandford v. Handy, 23 Wend. 266, 267. 
 
Bab Examinations and Coubses of Study. 255 
 
 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. yide: Higging v> Moor6) 34 K 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. B.ep. 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. Memeewiecz, 11 Wend. 312. 
 Fifth National Bank v. Woolsey, 21 Misc. 
 761, 762. 
 
 369. 
 
 A, the surety, can recover from 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- 
 
256 Bab Examination's and Courses of Study. 
 
 edy which the creditor possesses to enforce payment from the 
 principal debtor." Hayeg y Ward; 4 ^ ^ ^ 
 
 Griswold v. Jackson, 2 Edw. Ch. 468. 
 Grow v. Garlock, 97 1ST. Y. 81. 
 State Bank v. Smith, 155 K Y. 197, 200. 
 Pitts v. Congdon, 2 1ST. Y. 352. 
 Sternbeck v. Friedman, 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 
 abode of human beings or used as such. 
 
 Herman v. Adriatic Fire Ins. Co., 85 
 
 K Y. 162. 
 Barry v. Preseott Ins. Co., 35 Hun, 604. 
 Huber v. Manchester Fire 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 Fire 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. Mtn& Life Ing Co y Franc6j 91 n s 
 
 510. 
 Kenyon Case, 1'22 K Y. 247. 
 Barteau v. Phoenix M. L. Ins. Co., 67 
 
 N. Y. 595. 
 Cook on Life Insurance, sec. 20, pp. 32, 
 
 37. 
 
Bar Examinations and Coueses of Study. 257. 
 
 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 hound 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 heen seized hy virtue of an attachment against a 
 third person * * * of which the principal had no notice." 
 Barnard v. Kobbe, 54 K Y. 516. 
 Rogers 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 IS!". Y. 500: 
 Battler 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. Frankfort, 4 Misc. 275 ; Id. 
 
 624. 
 Hayes v. Gross, 9 App. Div. 12, at p. 17 ; 
 
 affd., 162 N. Y. 610. 
 Rhodes 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 
 
 17 
 
258 Bar Examinations and Courses of Study. 
 
 price at the time and place of delivery. He followed the 
 second course and was well within his rights. 
 
 Ideal Cash Register Co. v. Zunino, 39 
 Misc. 313. 
 
 Windnraller v. Pope, 107 1ST. 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 toVriminal 
 cases only. 
 
 Kurz v. Doerr, 86 App. Div. 507; affd., , 
 
 180 N. 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/9.5 IStNy. 575, 578. 
 Wheeler v. Billings, 3.8/lSr. % 263, 264. 
 Arnot v. The Erie Railway Co., 67 K 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- 
 tae was the accident of which the declarations were no part, 
 not being made at the same time or place, nor were they so 
 
Bab Examinations and Coukses op Study. 259 
 
 nearly contemporaneous with it as to characterize the acci- 
 dent or throw any light upon it. 
 
 Waldele v. Railroad, 95 K T. 274. 
 
 People v. Driscoll, 107 1ST. Y. 414, 424. 
 
 Martin v. Railroad, 103 1ST. Y. 626. 
 
 People v. Smith, 172 1ST. Y. 242. 
 
 Austin v. Bartlett, 178 N. T. 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 K. 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- 
 
 mg xt Mils v. Davis, 113 K 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. PeQple y> Si]]liyjm> ng ^ y lg5> 
 
 382. 
 
 It was sufficient. Section 29 of the Penal Code 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- 
 
260 Bab Examinations and Coueses of Study. 
 
 f endant through the agency of another still it was the act of 
 the defendant. 
 
 People v. Bliven, 112 K Y. 79. 
 
 People v. Mills, 178 K Y. 274, 288. 
 
 People v. Peckens, 153 K Y.*"576. 
 
 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 K 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 K Y, L. E. & W. R, E. 
 
 Co., 95 1ST. Y. 562. 
 Cosulich v. S. O. 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 K Y. 199. 
 Moore v. M. K Bank, 123 1ST. Y. 420. 
 Bornman v. Star Co., 174 K Y 219. 
 Triggs v. Sun P. & P. Assn., 179 1ST. Y. 
 144. 
 
Bab Examinations and Courses of Study. 261 
 
 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 
 
 lot " 
 
 Vanderwiele v. Taylor, 65 IS. Y. 341. 
 
 Yynch v. Mayor, 76 N Y. 60. 
 
 Barkley v. Wilcox, 86 K 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 1898, 
 
 chap. 272), sec. 64. 
 Van Beck v. Thomsen, 44 App. Div. 
 
 373 ; affd., 167 K 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 T. 337. 
 Matter of Allen, 151 1ST. 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. 
 
 2 R.. S. 60, sec. 21, ae amended by Laws 
 1867, chap. 82, sec. 4. 
 
262 Bar Examinations and Coubses of Study. 
 
 An infant cannot make a valid will devising his or her 
 real estate. 
 
 2 E. S. 56, sec 1, as amended by Laws 
 1867, chap. 82, sec. 3. 
 
 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. 
 
 Heal Property Law (Laws 1896, chap. 
 547), sees. 170, 287. 
 
 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, 3 Edw. Ch. 330. 
 Lorillard v. Coster, 5 Paige Ch. 172; 
 Hawley v. James, 5 Paige Ch. 318. 
 Bolton v. De Peyster, 25 Barb. 539. 
 Am. & Eng. Encyc. Law (2d ed.), Vol. 
 7, p. 465. 
 
Bae Examinations and Courses of Study. 263 
 
 " Money directed by will to be employed in tbe purchase 
 of land is to be considered as land." 
 9 Cyc. 840. 
 
 As to the distribution, Vide Eeal Property Law (Laws 
 1896, chap. 547), sees. 170, 281. 
 
 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 sat- 
 isfaction, 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. 
 
 Kellog v. Ames, 41 N. Y. 259. 
 Wallach v. Schulze, 22 App. Div. 60. 
 Bogert v. Bliss, 148 N. 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 1890, 
 chap. 564, as amended, L. 1892, chap. 
 688, and L. 1901, chap. 354), sec. 20. 
 
 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 K Y. 179. 
 
264 Bab Examinations and Courses of Study. 
 
 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 1890, 
 chap. 563, as amended Laws 1892, 
 chap. 687), sec. 29. 
 
 (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 K. 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 Relations Law (Laws 1896, 
 chap. 272), sec. 18. 
 
 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. 272, 
 Laws 1896), sec. 51. 
 
Bab Examinations and Courses of Study. 265 
 
 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. 
 
 Fraudulent representations made by an infant to induce 
 another to enter into a contract with him will not give it 
 validity. 
 
 Studwell v. Shaffer, 54 1ST. Y. 249. 
 K Y. Building Loan Co. v. Fisher, 23 
 App. Div. 363. 
 
 399. 
 
 " Every male citizen of the age of twenty-one years, who 
 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 * ' * *." 
 
 K Y. Const., art. II, sec. 1. 
 
 400. 
 
 The court should deDy the motion. 
 
 " ]STo person shall be subject to be twice put in jeopardy 
 for the same offense." 
 
 N". 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. 
 
THE STATUTES AND RULES REGULATING ADMISSION 
 TO THE BAR IN THE STATE OF NEW YORK. 
 
 STATUTES. 
 
 CODE OF CIVIL PROCEDURE. 
 (Chapter 1, Title 2, Article Second.) 
 
 § 56. [Am'd, 1895.] Examination and admission of 
 attorneys. 
 
 A citizen of the State, of full age, applying to be admitted 
 to practice as an attorney or counselor in the courts of rec- 
 ord of the State, must be examined and licensed to practice 
 as herein prescribed. A State board of law examiners is 
 hereby created, to 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, ex- 
 cept under the first appointment which shall be for terms 
 of one, two and three years respectively, until the appoint- 
 ment of his successor. Such court shall prescribe rules 
 providing for a uniform system of examination which shall 
 govern such board of law examiners in the performance of 
 its duties and shall fix the compensation of its members. 
 There shall be examinations of all persons applying for ad- 
 mission to practice as attorneys and counselors-at-law at least 
 twice in each year in each judicial department and at such 
 other times and places as the court of appeals may direct. 
 Every person applying for such examination 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 ap- 
 plicant shall be entitled to the privilege of not exceeding 
 three examinations. Such board shall certify to the appel- 
 late 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 
 
268 Bab Examinations and Coueses of Study. 
 
 person stall have in other respects complied with the rules 
 regulating admission to practice as attorneys and counselors, 
 which fact shall be determined by said board before exami- 
 nation. Upon such certificate, if the appellate division of 
 the supreme court shall find such person is of good moral 
 character, it shall enter an order licensing and admitting 
 him to practice as an attorney and counselor in all courts 
 of the State. Race or sex shall constitute no cause for 
 refusing any person examination or admission to practice. 
 Any fraudulent act or representation by an applicant in 
 connection with his application or admission shall be suffi- 
 cient cause for the revocation of his license by the appellate 
 division of the supreme court granting the same. Such 
 board shall render during the month of January, an annual 
 account of all their receipts and disbursements to the court 
 of appeals. The court of appeals may make such provisions 
 as it shall deem proper for admission of persons who have 
 been admitted to practice in other States or countries. 
 
 L. 1895, ch. 946. 
 
 § 57. [Am'd, 1895.] Eules, how changed. 
 
 The rules established by the court of appeals, touching 
 the admission of attorneys and counselors 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; who must transmit a printed copy thereof to the 
 clerk of each county, and to the presiding justice of the 
 appellate division of the supreme court, in each judicial 
 department, and also cause the same to be published in the 
 next ensuing volume of the session laws. 
 
 L. 1895, ch. 946. 
 
 § 58. [Am'd, 1893.] Exemptions to graduates of certain law 
 ichools. 
 
 Nothing contained in the last two sections prevents the 
 eourt of appeals from dispensing, in the rules established 
 bjg it, with the whole or any part of the stated period of 
 clerkship, required from an applicant, or with an examina- 
 
Bab Examinations and Courses of Study. 269 
 
 tion, where the applicant is a graduate of the Albany law 
 school, the law department of Union university, or of the 
 law department of the university of the city of New York, 
 or of the law school of Columbia College, or of the law 
 department of Hamilton College, or of the law school of 
 the University of Buffalo, and the New York law school, and 
 produces his diploma upon his application for admission. 
 L. 1893, ch. 163. 
 
 § 59. [Am'd, 1895.] Attorney's oathof office, and certificate 
 of admission. 
 
 Each person, admitted as prescribed in the last three sec- 
 tions, 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. The clerk, 
 upon the payment of the fees allowed by law, must deliver 
 to the person admitted, a certificate under his hand and 
 official seal, stating that such person has been so admitted, 
 and that he has taken and subscribed the constitutional oath 
 of office as prescribed in this section. 
 
 L. 1895, ch. 946. 
 
 § 60. Attorneys residing in adjoining states. 
 
 A person, regularly admitted to practice as attornejj 
 and counsellor, in the courts of record of the State, whose 
 office for the transaction of law business is within the State, 
 may practice as such attorney or counsellor, although he 
 resides in an adjoining State. But service of a paper, which 
 might be made upon him at his residence, if he was a resi- 
 dent of the State, may be made upon him, by depositing the 
 paper in a post office in the city or town where his office ia 
 located, properly inclosed in a post-paid wrapper, directed 
 to him at his office. A service thus made is equivalent to 
 personal service upon him. 
 
 L. 1866, eh. 175, § 1 (6 Edm. 706). 
 
 § 61. Clerks, etc., not to practice. 
 
 The clerk, deputy-clerk, or special deputy-cleric of a court 
 shall not, during his continuance in office, practice as attorney 
 or counsellor in that court. 
 
 1 K. S. 109, S 26, ain'd. 
 
270 Bab Examinations and Coubses of Studt. 
 
 § 62. Sheriffs, etc., not to practice. 
 
 A sheriff, under sheriff, deputy-sheriff, sheriff's clerk, con- 
 stable, coroner, crier, or attendant of a court, shall not, dur- 
 ing his continuance in office, practice as an attorney or coun- 
 sellor in any court. 
 
 Id., | 27, extended. 
 
 § 63. [Am'd, 1879, 1898.] None hut attorneys to practice 
 in New York city. 
 
 A person shall not ask or receive, directly or indirectly, 
 compensation for appearing as attorney in a court or before 
 any magistrate in the city of New York, or make ft a busi- 
 ness to practice as an attorney in a court or before a magis- 
 trate in said city, unless he has been regularly admitted to 
 practice, as an attorney or counsellor, in the courts of record 
 of the State. 
 
 L. 1862, eh. 484, J 1; and id., ch. 53, f 1; L. 1898, ch. 316. In effect 
 June 1, 1898. 
 
 § 64. [Am'd, 1898.] Penalty for violation, or suffering 
 violation of last section. 
 
 A person who violates the last section is guilty of a misde- 
 meanor, and shall be punished by imprisonment in the 
 county jail, not exceeding one month, or by a fine of not less 
 than one hundred dollars or more than two hundred and 
 fifty dollars, or by both such fine and imprisonment. A 
 judge, justice or magistrate within the city of New York 
 who knowingly permits to practice in his court, a person 
 who has not been regularly admitted to practice in the courts 
 of record of this State, is guilty of a misdemeanor, and shall 
 be punished as prescribed in this section. But this and the 
 last section do not apply to a case where a person appears 
 in a cause to which he is a party. 
 
 Id.; and § 2 of ch. 484; L. 1898, ch. 316. In effect June 1, 1898. 
 
 § 193. Court (of Appeals) may make rules. 
 
 The court may from time to time make, alter, and amend, 
 rules, not inconsistent with the constitution or statutes of the 
 State, regulating the practice and proceedings in the court, 
 and the admission of attorneys and counsellors at law, to 
 practice in all the courts of record of the State. 
 
 L. 1870, ch. 203, § 2; and L. 1871, ch. 486, § 1. 
 
Bab Examinations and Coubses of Study. 271 
 
 REGISTRATION LAW. 
 
 !A2T ACT for the registration of all persons duly admitted 
 and licensed to practice as attorneys at law or as attorneys 
 and counsellors at law in the courts of record of this State. 
 (Chapter 165, Laws 1898, as amended by chap. 225 of the 
 Laws of 1899, and by chap. 588, Laws 1900.) 
 
 The People of the State of New York, represented in 
 Senate and Assembly, do enact as follows: 
 
 Section 1. Every person duly licensed and admitted to 
 practice as an attorney at law or as an attorney and counsel- 
 lor at law in the courts of record of this State must, before 
 the first day of July, 1899, subscribe and take an oath or 
 affirmation which must be substantially in the following 
 form; the blanks being properly filled: 
 
 Yss.: 
 
 STATE OF NEW YOKK 
 
 County, 
 
 I, , being duly sworn (or affirmed)", do depose 
 
 and say that I am a natural born 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 eourts of record of this State, and 
 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 attorney and counsellor at law in the courts of record 
 
 of this State at the term, 18 . ., of the general term 
 
 (or Appellate Diviskm) 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 1 
 day of 189... ) 
 
 Which oath or affirmation shall be filed in the office of 
 the Cleric of the Court of Appeals by the person making the 
 same, provided, nevertheless, that snch affidavit or affirma- 
 tion may state that the deponent or affirmant believes that 
 he took the constitutional oath of office in lieu of stating un- 
 
272 Bab Examinations and Coubses of Study. 
 
 qualifiedly that he did so, where the affidavit or affirmation 
 states, or in substance shows, the deponent's or affirmant's 
 lack of positive or certain recollection of having taken such 
 oath, or shows other substantial reasons for thus qualifying 
 the affidavit or affirmation on that subject. And provided 
 further, in respect of persons who were solicitors in chan- 
 cery or attorneys of, or in the Supreme Court on the first 
 Monday of July, 1847, and who therefore became entitled to 
 the benefit of the provisions of section seventy-five, of 
 chapter two hundred and eighty of the Laws of eighteen 
 hundred and forty-seven, commonly called the judiciary act, 
 entitling them to practice as attorneys, solicitors, and counsel- 
 lors in all the courts of this State, that the affidavit or 
 affirmation required from such persons by this section in lieu 
 of stating their license and admission prior to July first, 
 eighteen hundred and forty-seven, to have been as attorney at 
 law or as attorney and counsellor-at-law in the courts of rec- 
 ord of this State may state such admission and license to have 
 been as attorney of, or in the Supreme Court, or as solicitor 
 in chancery or solicitor of the Court of Chancery accord- 
 ing to the fact. And said affidavit or affirmation may state 
 correctly the court and term of court in, or at which the 
 admission prior to July first, eighteen hundred and forty- 
 seven, took place. After July first, eighteen hundred and 
 ninety-nine, 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 show- 
 ing reasonable grounds therefor, grant an order permitting 
 the applicant to make and file the oath or affirmation required 
 herein, with the same effect as if the same had been made 
 and filed within the time above stated, and relieving him 
 from penalties and prosecutions by reason of failure to make 
 and file such oath or affirmation within the time required. 
 (As amended by chap. 225, Laws 1899.) 
 
 § 2. Every person who is hereafter duly licensed and ad- 
 mitted to practice as an attorney and counsellor at law in 
 the courts of record of this State, by an Appellate Division 
 of the Supreme Court, shall subscribe and take and file the 
 aforesaid oath or affirmation as provided in the first section of 
 
Bab Examinations and Coubses of Study. 273 
 
 this act, before he begins or is entitled to begin to practice for 
 another as an attorney and counsellor at law in the courts of 
 record of this State, or in any court in the county of New 
 Torik or in the county of Kings. A person who practices 
 any fraud or deceit or knowingly makes any false statement, 
 in the oath or affirmation in and by this act required to ha 
 made and filed is guilty of felony. 
 
 § 3. It shall be the duty of the Clerk of the Court of Ap- 
 peals to file in his office the said oaths or affirmations, afore- 
 said, 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 
 counsellors at law in the State of New York," in the alpha- 
 betical 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 
 aforesaid was filed, of all persons who have filed in his said 
 office the oath or affirmation as aforesaid, which said "of- 
 ficial 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 anyj eourt 
 in the counties of New York and Kings. 
 
 § 4. On and after July first, eighteen hundred and ninety- 
 nine, it shall be unlawful for any person to practice or appear 
 as an attorney at law or as attorney and counsellor at law 
 for another in a court of record in this State, or in any 
 court in the county of New York, or in the county of Kings, 
 or to make it a business to practice as an attorney at law or 
 as an attorney and counsellor at law for another in any of 
 said courts, or to hold himself out to the public as being 
 entitled to practice law as aforesaid, or in any other manner 
 or to assume to be an attorney or counsellor at law, or to 
 assume, use, or advertise the title of lawyer or attorney and 
 counsellor at law, or attorney at law, or counsellor at law, 
 or attorney or counsellor, or attorney and counsellor, or 
 equivalent terms in any language in such manner as to con- 
 vey the impression that he is a legal practitioner of law, or 
 18 
 
274 Bab Examinations and Coubses of Study. 
 
 in any manner to advertise that he either alone or together 
 with any other persons or person, has, owns, conducts or 
 maintains a law office, or law and collection office, or office 
 of any kind for the practice of law, without having first 
 been duly and regularly licensed and admitted to practice 
 law in the courts of record of this State, or, in case of 
 persons licensed and admitted prior to July first, eighteen 
 hundred and forty-seven, without having first been duly and 
 regularly licensed and admitted to practice as attorney of, 
 or in the then Supreme Court or as solicitor in chancery or 
 of the Court of Chancery, and without having taken the 
 constitutional oath and without having subscribed and taken 
 the oath or affirmation required by the first section of this 
 act, and filed the same in the office of the Clerk of the Court 
 of Appeals as required by said first section of this act. Any 
 person violating the provisions of this section is guilty of a 
 misdemeanor and it shall be the duty of the district attorneys 
 to enforce the provisions of this act and to prosecute all 
 violations thereof. 
 
 § 5. 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 
 twenty-five cents to defray the necessary disbursements in- 
 curred by him in carrying out the provisions of this act. 
 It shall be the duty of the said clerk of the Court of Appeals, 
 on or before the first day of November, eighteen hundred 
 and ninety-nine, to cause the said "official register of at- 
 torneys and counsellors at law in the State of !New York," 
 to be printed, and to file a certified copy thereof in the office 
 of the county clerk of each county within the State, and 
 with the clerk of each of the appellate divisions, and annually 
 thereafter to print and file as aforesaid, all additions to the 
 said official register made during the preceding twelve 
 months, the expense thereof to be paid out of the fees col- 
 lected by him pursuant to the provisions of this act, after de- 
 fraying the necessary disbursements incurred by him under 
 section three thereof. (As amended by chap. 558, Laws 
 1900.) 
 
 § 6. This act shall take effect on the first day of Septem- 
 ber, eighteen hundred and ninety-eight 
 
Bab Examinations and Coubses oj? Study. 275 
 
 RULES 
 
 In Relation to the Admission of Attorneys and Counselors-at-Law. 
 
 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 
 to date. 
 
 KTJLE I. 
 
 No person shall be admitted to practice as an attorney or 
 counselor in any court of record in this State, without a 
 regular admission to the bar and license to practice granted 
 by an Appellate Division of the Supreme Court 
 
 BUIEII. 
 
 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 Amer- 
 ican citizen and domiciled in a foreign country, has received 
 such diploma or degree therein, as would have entitled him 
 if a citizen of such foreign country to practice law in its 
 courts, may, in the discretion of an Appellate Division of the 
 Supreme Court, be admitted and licensed without an exami- 
 nation. But he must possess the other qualifications 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 persons 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. (Amended June 
 24, 1903.) 
 
276 Bab Examinations and Coueses of Study. 
 
 ETJIEm. 
 
 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 satisfactorily 
 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 may be shown by the cer- 
 tificate of the attorney with whom he has passed his clerk- 
 ship, or by some attorney in the town or city where he resides, 
 but such certificate shall not be conclusive, and the court may 
 make further examination and inquiry. 
 
 ETTLE IV. 
 
 To entitle an applicant to an examination as an attorney 
 and counselor, he must prove by his own affidavit, to the satis- 
 faction 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 a resident of the State, and 
 that he has not been examined for admission to practice and 
 been refused admission and license within three months im- 
 mediately preceding. 
 
 Second. That he haB studied law in the manner 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. 
 
 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. : 
 
Bab Examinations and Coubses of Study. 277 
 
 1. The provisions for requisite periods of study must be 
 fulfilled by serving a regular clerkship in the office of a prac- 
 ticing attorney of the Supreme Court in this State after the 
 age of eighteen years ; or after such age, by attending an in- 
 corporated law school, or a law school connected with an 
 incorporated college or university having a law department 
 organized, with competent instructors and professors, in 
 which instruction 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 university, 
 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 pre- 
 scribed period of study after having remained an attorney in 
 such other State or country for the period of one year. 
 
 3. Applicants who are not graduates of a college or uni- 
 versity, or members of the bar as above described shall, before 
 entering upon the clerkship or attendance at a law school 
 herein prescribed, or within one year thereafter, have passed 
 an examination conducted under the authority and in accord- 
 ance with the ordinances and rules of the University of the 
 State of New York in English composition, advanced 
 English, first year Latin, arithmetic, algebra, geometry, 
 United States and English history, civics and economics, or 
 in their substantial equivalents as defined by the rules of the 
 University, and shall have filed a certificate of such fact, 
 signed by the secretary of the University 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 equiva- 
 lent of and substitute for the examination in this rule pre- 
 scribed 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 au- 
 thenticated, of having satisfactorily completed a three years' 
 course of study in any institution registered by the Regents 
 as maintaining a satisfactory academic standard ; or, third, a 
 Regents' diploma. The Regents' certificate above prescribed 
 
278 Bab Examinations and Cotjbses of Studt. 
 
 shall be deemed to take effect as of the date of the completion 
 of the Eegents' examination, as the same shall appear upon 
 said certificate. 
 
 Attendance at a law school during a school year of not less 
 than eight months in any year shall be deemed a year's at- 
 tendance under this rule; and in computing the period of 
 clerkship a vacation actually taken, not exceeding two months 
 in each year, shall be allowed as 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 commence at 
 the time of such filing, and shall be computed by the calendar 
 year. The same period of time shall not be duplicated for 
 different purposes, except that a student attending a law 
 school as herein provided, 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 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. 
 
 UTILE 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 exe- 
 cuted 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 
 
Bab Examinations and Coubses of Study. 279 
 
 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. 
 
 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, which proof must be satisfactory to the Board of 
 Examiners. 
 
 5. That the applicant has passed the Begents' examination 
 or its equivalent, must be proved by the production of a cer- 
 tified copy of the Begents' 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 record 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 Ap- 
 peals adopted October 28, 1892. 
 
 euie vn. 
 
 When the filing of a certificate as required by these rules 
 has been omitted by excusable mistake, or without fault, the 
 court may order such filing as of the proper date. All cer- 
 tificates heretofore issued to law students by the Board of 
 Begents 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. 
 
280 Bab Examinations and Cotjeses of Study. 
 
 i 
 
 euie vm. 
 
 The State Board of Law Examiners shall he 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 $2,000 per year shall be allowed for necessary 
 disbursements of the Board. Every applicant for examina- 
 tion shall pay to the examiners a fee of ten dollars, which 
 shall be applied upon the compensation and allowance 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 examinations held by such 
 State Board of Examiners may be conducted by oral or writ- 
 ten questions and answers, or partly oral and partly written, 
 but shall be as nearly uniform in the knowledge and capacity 
 which they shall require, as is reasonably possible. An ap- 
 plicant who has failed to pass one examination cannot again 
 be examined until at least three months after such failure. 
 
 RULE IX. 
 
 The State Board of Law Examiners shall hold at least one 
 examination in each judicial department, at the cily or vil- 
 lage in which the Appellate Divisions of the Supreme Court 
 are held, between the 10th day of June and the 20th day of 
 July in each year, and one examination in each department 
 at the places above named, during the month of January in 
 each year. They may appoint other times and places for 
 additional examinations, and may hold some or all of such 
 additional examinations concurrently with the regular or an- 
 nual examinations of any law school in this State, and any 
 applicant entitled to be examined may be so examined, in anv 
 department, whether a resident therein or not. 
 
 These rules shall take effect on January 1, 1896. 
 
 RULE X. 
 (Adopted December 13, 1898.)' 
 In all cases where, after the applicant shall have com- 
 menced his period of law study as provided by these rules, 
 
Bab Examinations and Coubses of Study. 281 
 
 he has engaged in the military or naval service of the United 
 States of America, in its late war with Spain, the time of 
 such service shall be included as a part of the period of study 
 required by Kule TV. 
 
 The proof of compliance with preliminary requirements 
 under Rule VI, with respect to such service, shall be made to 
 the satisfaction of the Board of Law Examiners. 
 
 SUPREME COURT RULE, 
 General Rules of Practice. 
 
 RULE I. 
 
 Applicants for admission as attorneys Applicants for ad- 
 mission as attorneys and counselors who have passed the ex- 
 amination prescribed by the rules of the Court of Appeals 
 shall file the certificates of the examiners with evidence of 
 character with the clerk of the Appellate Division of the 
 proper department at such times as shall be directed by spe- 
 cial order, or by rules of the court in such department 
 
 (For special rule in Second Department, vide p. 12.) 
 
 RULES OF STATE BOARD OF LAW EXAMINERS. 
 
 EULEL 
 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, the preliminary proofs required by the " Kules for the 
 admission of attorneys and counselors-at-law," as amended 
 and adopted by the judges of the Court of Appeals, Decem- 
 ber 2, 1895, to take effect January 1, 1896, from which it 
 must appear affirmatively and specifically that all the pre- 
 liminary conditions prescribed by said rules have been ful- 
 filled, 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 before 
 
282 Bab Examinations and Courses of Study. 
 
 it, or some member thereof, and be examined concerning his 
 qualifications to be admitted to the examinations. The ex- 
 amination fee of $10 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 such examination an 
 actual and not constructive resident of this State, giving the 
 place of such residence, and street and number, if any. (Ap- 
 proved November 22, 1904.) 
 
 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 will be certified 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 intends to apply for examination. 
 
 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 ILL 
 
 In applying the provisions of Rules IV and V of the Rules 
 of the Court of Appeals, " For the admission of attorneys 
 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 respect 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 appli- 
 cant 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. 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 character of the college or university of which ha 
 claims to be a graduate. 
 
Bab Examinations and Coueses of Study. 283 
 
 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, 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 
 the highest court of original jurisdiction of another State or 
 country, and who has remained therein as a practicing at- 
 torney for at least one year, may prove the latter fact by his 
 own affidavit, and must present also a certificate from a judge 
 of the court in which he was admitted or from a county 
 judge in said State, certifying that the applicant had re- 
 mained in said State or country as a practicing attorney for 
 said period of one year, after he had been admitted as an 
 attorney therein. The signature of the judge must be certi- 
 fied to by the clerk of the court or by the county clerk under 
 the seal of the court. 
 
 RULE VI. 
 
 An applicant whose clerkship or attendance at a law school 
 was already begun, as shown by the records of the Court of 
 Appeals, or of any incorporated law school or law school estab- 
 lished in connection with any college or university, and who 
 thereafter engaged in the military or naval service of the 
 United States of America in its late war with Spain, may have 
 the time of such service included as a part of the period of study 
 required by the Eules of the Court of Appeals in relation to the 
 admission of attorneys and counselors-at-law, on proof of the 
 facts of such service ; which shall be made by his own affidavit, 
 showing the branch of the service, the place, and the date of 
 his enlistment or commission, and the end, or probable time of 
 the duration of his term of service, and by the production of his 
 honorable discharge from such service, in case of his discharge, 
 executed by the proper authorities — which discharge shall be 
 returned when the application for examination is approved. 
 (Approved December 19, 1898.) 
 
 Note. — Applicants should file their papers at the earliest possible 
 moment; amendable defects may be discovered, which can be corrected 
 if attended to promptly. 
 
FORMS. 
 
 (Printed blank forma, the use of which is urgently recom* 
 mended, can be procured from the librarians of any of the 
 kw schools in this State). 
 
 CERTIFICATE OF COMMENCEMENT OF CLERKSHIP. 
 
 (To be filed in office of Olerk 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 that I am (or we are) a 
 practicing attorney(s) of the Supreme Court of this State, 
 and maintain an office for the transaction of law business at 
 
 , and that , who is eighteen years of 
 
 age and upwards, 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. 
 
 Bated , 190.. 
 
 (Signed) . . . ... ... . . ... ... . . ... ... . 
 
 AFFIDAVITS TO OBTAIN ORDER FILING CERTIFICATE OF 
 COMMENCEMENT OF CLERKSHIP NUNC PRO TUNC. 
 
 Note.- — The rules of the Court of Appeals (Rule V) 
 make it 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 commence 
 at the time of such filing, and shall be computed by the 
 calendar year. 
 
 The rules further provide (Rule Vll) that when the filing 
 of a certificate as required by the rules has been omitted 
 by excusable mistake or without fault, the court may ordei 
 
286 Bab Examinations and Coueses of Study. 
 
 such filing as of the proper date. A certificate of com- 
 mencement of clerkship may be filed nunc pro tunc, upon 
 the affidavit 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. 
 ET COURT OF APPEALS, STATE OF NEW YOKK 
 
 In the Matter of the Application 
 of 
 
 for Admission to the Bar. 
 
 STATE OF NEW YOKK, } 
 City and 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 eighteen 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 that date until on or about the day of 
 
 That deponent did not, at the time when said clerkship 
 was commenced, as aforesaid, file or cause to be filed a 
 
Bab Examinations and Coubses of Study. 287 
 
 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 why the cer- 
 tificate was 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 . . . ... .1. . . ... ., 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. 
 
 J 
 
 STATE OF NEW YOKE, ) 
 City and County of j 
 
 ., 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 Secretary of the Uni- 
 versity of the State of New York, as required by the rules 
 of the Court of Appeals, heretofore issued to him, and that 
 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 
 gears he began the service of a regular clerkship in the law 
 
288 Bab Examinations and Courses of Study. 
 
 office 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 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 YOKE, IN COURT OF APPEAIfi. 
 
 At a Court of Appeals for the State of New York, held 
 
 at the Capitol in the city of Albany, on the day 
 
 of ,..:.., A. D. 19. . 
 
 Present — Hon. Alton B. Pabkeb, Chief Judge, pre- 
 siding. 
 
 In the Matter of the Application 
 for Admission to the Bar. 
 
 On reading and filing the certificate and the affidavit of 
 > an attorney and counselor-at-law, veri- 
 fied the day of ., 190.., showing the 
 
 time of commencement with said of a regular 
 
 clerkship by the said ; and the affidavit 
 
 °f ■••• verified the day of 
 
 • • • • , 190 . . On motion of 
 
 attorney for said applicant, 
 
 It is ordered that the certificate of the commencemen* 
 
Bab Examinations and Cotteses ov Study. 289 
 
 of clerkship of the said , be and the 
 
 Bame is hereby filed nunc pro tunc as of the ....... dag of 
 
 ,19.. 
 
 [« .>• • . .;. . . . . . . . , 
 
 Deputy Clerk. 
 
 [L. S.] 
 
 APPLICANT'S AFFIDAVIT. 
 
 (To be filed with the Secretary of the State Board of Law 
 Examiners, when applicant applies for examination). 
 
 TITLE. 
 
 IN THE APPELLATE DIVISION OF THE SUPKEME 
 COURT, EOE THE JUDICIAL DEPART- 
 MENT. 
 
 In the Matter of the Application 
 of 
 
 49. .•••<«••••••••••■••••■■••••«,'• a.....: 
 
 For Admission to the Bar. 
 
 GENERAL CLAUSE. 
 
 STATE OE NEW YOEK, -| 
 
 County of 3 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 
 aforesaid, for the six months past, and that such residence 
 is and was during the said six months actual and not con- 
 structive. 
 
 That he ia years of age, and has not been examined 
 
 for admission to practice and been refused admission and 
 19 
 
290 Bab Examihations and Cotibses ov Sttoy. 
 
 license "within the three 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 university) 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. 
 
 LAW STUDENTS CERTIFICATE. 
 
 Deponent further states that he has passed an examination 
 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, 
 
 No , signed by the Secretary of the University, as 
 
 required by the rules of the Court of Appeals. That depo- 
 nent completed his said Regents 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 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 Exhibit " " 
 
Bab Examinations and Cotteses of Study. 291| 
 
 LAW STUDENTS CERTIFICATE ON EQUIVALENTS. 
 
 Deponent further states that on the day of ....... 
 
 190. ., the University of the State of New York duly issued 
 
 to deponent a Law Students Certificate, ITo , signed by 
 
 the Secretary of the University, as the equivalent of, and sub- 
 stitute for the Regents 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 New 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 the 
 Court of Appeals. That a certified copy of said certificate 
 of commencement of clerkship and proof of filing in the 
 office of the Clerk of the Court of Appeals are hereto an- 
 nexed and marked Exhibit " " 
 
 That deponent served a regular clerkship in the law of- 
 fice of , a practicing attorney of the Supreme 
 
 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 service of said clerkship deponent did not 
 take more than two months vacation in any one year, the 
 
 vacations taken by deponent began 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 . . 
 
 That hereto annexed is the affidavit of the attorney, with 
 
292 Bab Examhstatioks and Coueses of Sttjdt. 
 
 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 during 
 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 Exhibit 
 
 • • • 
 
 LAW SCHOOL ATTENDANCE. 
 
 Deponent further alleges that he was in regular attend- 
 ance upon the law lectures and exercises of the 
 
 one 
 
 Law School, situated at during two school 
 
 three 
 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 has not 
 
 entirely completed the school year last above-mentioned, 
 but that he is still in attendance upon the sessions of said 
 school and that it is bona fide his intention to complete the 
 full time of attendance required for the said school year 
 last above mentioned, on or before the date of the exami- 
 nations as fixed by the State Board of Law Examiners, to 
 
 wit, by the day of in the year last above 
 
 mentioned.) 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 Eaculty (or by the of the 
 
Bab Examinations and Coueses op Study. |293 
 
 said school), as proof of such time of studg and attendance 
 upon said law school is hereto annexed and marked Ex- 
 hibit " " 
 
 FOR ATTORNEY OF ANOTHER STATE. 
 
 (Eule IV. Kules. Court of Appeals. Eule V. State 
 Board of Law Examiners.) 
 
 Deponent further states that he was duly admitted aa 
 
 an attorney in the Court of the State of ... ... ., 
 
 that being the highest court of original jurisdiction in said 
 
 State, on the day of , 190. ., and that he 
 
 remained therein as a practicing attorney for at least one 
 
 year, viz., from the day of to the day 
 
 of , at , in said State, where he 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 Exhibit "....," 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 said State), cer- 
 tifying that deponent had remained in said State of 
 
 at aforesaid as a practicing attorney for said period 
 
 of one year after he had been admitted as a practicing at- 
 torney 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 his certificate thereof hereto 
 annexed marked Exhibit " . ." 
 
 Sworn to before me, this . ... . 
 day of ,190... 
 
1294: Bab Examinations and Coueses of Study, 
 
 ATTORNEY'S AFFIDAVIT. 
 
 (To accompany applicant's proofs, when necessary.) 
 
 IN THE APPELLATE DIVISION OE THE SUPREME 
 COURT, FOR THE JUDICIAL DEPART- 
 MENT. 
 
 In the Matter of the Application 
 of 
 
 i ••••••* 
 
 For Admission to the Bar. 
 
 STATE OF NEW YORK, ) 
 
 County op >ss.: 
 
 City of , ) 
 
 , being duly sworn, deposes and says: 
 
 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 
 
 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 and 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... 
 
 ........... ... ... .!. .v...*) 
 
 Sworn to before me, this . ... ., 
 day of ...... .,19... 
 
Bab Examinations and Coueses ov Study. 1295 
 
 CERTIFICATE OF GOOD MORAL CHARACTER. 
 
 IN THE APPELLATE DIVISION OF THE SUPEEME 
 
 COUET FOE THE JUDICIAL DEPAET- 
 
 MENT. 
 
 In the Matter of the Application 
 of 
 
 For Admission to the Bar. 
 
 I do hereby certify that I am an attorney and counselor-at- 
 law of the Supreme Court of the State of New York, and have 
 
 known , the above-named applicant, for 
 
 years last past, and that he is to my knowledge a person of 
 good moral character. 
 
 The facts upon which my knowledge, as aforesaid, is based 
 are as follows : (State in detail the facts and the acquaint- 
 ance with the applicant which justifies the opinion expressed.") 
 
 Dated, , 190.. 
 
 (Signed.) 
 
 Note — In the Second Department the above certificate must be ac- 
 knowledged ; in the Fourth Department it must be verified or in the form 
 of an affidavit. 
 
296' Bab Examinations and Coueses of Study, ' 
 
 REGISTRATION OATH. 
 
 (To be Filed in the Office of the Clerk of the Court of Ap- 
 peals After Admission and Before practicing. Fee, 
 25 cents. Vide p. 210.) 
 
 EST COURT OF APPEALS — STATE OF NEW YORK. 
 
 In the Matter of the Registration 
 of 
 
 As an Attorney and Counselor-at-Law, 
 
 STATE OF NEW YORK, ) 
 
 County of ,...., >• 
 
 City of , ) 
 
 I, / , being duly sworn, af jirmed ,(ctf do 'deposei 
 
 and say : 
 
 That I am a natural born citizen of the United States, natur- 
 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 within this State(b). 
 
 That I was duly and regularly licensed and admitted to 
 practice as an attorney and counselor-at-law, an attornoy-at- 
 
 , lawr in the Courts of Record of this State, at the . .' 
 
 Term, 19. v ., of the G cn e i- al T eiu i , Appellate Division, of 
 the Supreme Court of this State, ^ri^J. 
 
Bab Examinations and Coueses of Study. 297 
 
 held at the .tH, of . trrCfr. . ., in this State,, and 
 
 that I took the Constitutional oath of office (d). 
 
 Subscribed and sworn to, affirmed before me, 
 this day of , 189 . . 
 
 (a) Erase words in italics, if not necessary. 
 (6) Section 60, Code of Civil Procedure. 
 
 (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 sec. 1, chap. 165, Laws 1898, as 
 amended by chap. 225, Laws 1899. 
 
 (d) Oath must be "substantially" in the above form, the blanks 
 being properly filled (id). 
 
 As to the requirement as to stating that the affiant took the consti- 
 tutional oath, vide sec 1, same act. 
 
 fat J)^S** *4-+—Cy 
 
COURSES OF STUDY FOR LAW CLERKS. 
 
 [A paper read by Fbankmn M. Danaher before the Section of Legal 
 Education of the American Bar Association, at Saratoga Springs, N. T., 
 August 29, 1903.] 
 
 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 
 work 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 1 
 fact that the majority of those who endeavor to raise the 
 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 
 
300 Bar Examinations and Coueses of Study. 
 
 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 highest 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 New 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 New 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 New 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 modern conditions exist- 
 ing in 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 clerks, laboriously made five, ten or fifteen 
 
Bab Examinations and Coubses of Study. 301 1 
 
 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 knowledge 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 clerk 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, well 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 with; there are 
 so many cases to be considered, rules to learn, and excep- 
 
302 Bab Examinations Aim Cotjeses 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 every 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, 
 iN". Y., in 1898 (Reports 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 New 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 scientific 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 Study. i303 
 
 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 is 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 New 
 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? 
 
304 Bab Examinations and Courses of Study. 
 
 It would be a waste of time for us to endeavor to establish 
 the proposition that a law clerk cannot combine 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 ia as good nor as efficient in results, 
 as could be obtained by personal attendance upon the exer- 
 cises and lectures of the schools. 
 
CORNELL UNIVERSITY. 
 
 ITHACA, N. Y. 
 
 PROPOSED OUTLINE OF STUDY FOR STUDENTS IN 
 LAW OFFICES. 
 
 Prepared by the Faculty of Cornell University College of 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. 
 Robinson'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 
 Huffcut and Woodruff's American Cases on Con- 
 tract (2d Ed.); or Clark or Harriman (2d Ed.) 
 on Contract. 
 
 Huffcut on Agency (2d Ed.), Book I, with Huff- 
 cut's Cases on Agency. 
 
 III. Torts (including Master and Servant). 
 
 Bigelow on Torts (7th Ed.), with Bigelow's Cases 
 
 on Torts. 
 New York Code of Civil Procedure, §§ 1899-1908 
 
 and cases thereunder. 
 Huffcut on Agency (2d Ed.), Book IL 
 20 
 
306 Bar Examinations and Cotteses ov Study, 
 
 IV. Domestic Relations and Law of Persons. 
 
 Tiffany on Domestic Relations, with 
 Woodruff's Cases on Domestic Relations and Law 
 
 of Persons. 
 New York Domestic Relations Law. 
 New York Code Civil Procedure, §§ 1742-1774. 
 
 V. Crimes and Criminal Procedure. 
 
 Clark and Marshall on Criminal Law, with Beale'a 
 Cases on Criminal Law, or 
 
 May 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. 
 
 VI. The Law of Property. 
 
 z. Real Property. 
 
 Tiffany on Real Property, 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. 
 
 a. 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. (1899) of Benjamin on Sales, are 
 valuable for reference or study. 
 
 VI. Wills and Administrations. 
 
 Chaplin on Wills, with Page on Wills, for collat- 
 eral reading. 
 
Bab ExAMHTATioira aot> CoxrEaBs ov Study. 307 
 
 VII. Wills and Administrations — continued. 
 
 Croswell on Executors and Administrators (1897). 
 New York Code of Civil Procedure, §§ 1814-1870 
 
 and 2472-2860. 
 [New York Revised Statutes, Part II, ch. VI, 
 title I. 
 
 (a) Art, 1, § 1 (as am. by L. 1867, ch. 782), 
 
 2-5. 
 (J) Art. 2, § 21 (as am. by L. 1867, ch. 782), 
 
 22. 
 '(e) Art. 3, §§ 40-48, 49 (as am. by L. 1869, 
 ch. 22), 50-53, 69-71. 
 New York Revised Statutes, Part II, ch. VII, title 
 Ht, §§ 67-70. 
 
 New York Laws. 
 
 L. 1853, ch. 238, § 1 (as am. by L. 1879, 
 
 ch. 316). 
 L. 1860, ch. 360, §§ 1 and 2. 
 L. 1865, ch. 368, § 6. 
 L. 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. 
 
 I. Bailments and Carriers. 
 
 Browne's, or Lawson's, or Hale's texts, with 
 McQain's Cases on Carriers, and article II 
 of the New York Railroad Law. 
 
 a. 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. 
 
308 Bar Examinations and Courses ov Studt, 
 
 IX. Special Contract Subjects — continued. 
 
 3. Negotiable Instruments. 
 
 BigeloVs Bilk, Notes and Cheques r (2d 
 
 Ed.). 
 Huffcut's Negotiable Instruments. 
 
 X. The Law of Association. 
 
 x. Partnership. 
 
 Burdictk on Partnership, with Burdick's 
 
 Cases. 
 New York Partnership Law. 
 
 2. 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. 
 
 XL Constitutional Law. 
 
 Cooley's Principles of Constitutional Law, with 
 
 MoClain's Cases on Constitutional Law. 
 United States Constitution. 
 New York Constitution. 
 
 B. 
 CIVIL PROCEDURE AND EVIDENCE. 
 
 (Note. — 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.) 
 
 I. Civil Procedure. 
 
 1. Introductory. 
 
 Bryant's Code Pleading. 
 
Bab Examinations and Coueses of Study. 309 
 
 I. Civil Procedure — continued. 
 
 2. Courts. 
 
 New York Constitution, art. VT. 
 New York Code Civil Procedure, §§ 1-103, 
 190-198, 217-262, 340-361. 
 
 3. Limitations. 
 
 New York Code Civil Procedure, §§ 362- 
 415. 
 
 4. Commencement of Actions. 
 
 New York Code Civil Procedure, §§ 416- 
 477. 
 
 5. Pleadings. 
 
 New York Code Civil Procedure, §§ 478- 
 
 546. 
 Bliss, Code Pleading. 
 
 6. Interlocutory Proceedings. 
 
 New York Code Civil Procedure, §§ 548- 
 827. 
 
 q. Trials. 
 
 New Yoiik 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. 
 
 SO. Foreclosure by Advertisement. 
 
 New York Code Civil Procedure, §§ 2861- 
 3158, 2231-2265. 
 
 zz. Actions in Justices' Courts. 
 
 New York Code Civil Procedure, §§ 2861- 
 3158, 2231-2265. 
 
310 Bar Examinations and Coubses ob 1 Study, 
 
 I. Civil Procedure — continued. 
 
 12. State Writs. 
 
 New York Code Civil Procedure, §§ 1991- 
 2102. 
 
 13. Vacating Judgments. 
 
 New York Code Civil Procedure, §§ 1282- 
 1292. 
 
 14. 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 Civil Procedure, §§ 2120- 
 2148. 
 [I. 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 "Evi- 
 dence." 
 
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 
 ia 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 all 
 respects that which is followed in 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. 
 
 The student may begin his legal study with ROBINSON'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 a3 
 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 CRIMINAL 
 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 BIGELOW ON TORTS. 
 
 He may then pass to the subject of CONTRACTS, and it is 
 advised to read HTTFECUT'S EDITION OF ANSON'S LAW OF 
 
312 Bar Examinations and Courses of Study* 
 
 CONTRACT, and follow it with CLARK'S CONTRACTS, HUFF- 
 CUT'S AGENCY, lAWSON'S BAILMENTS, and SCHOULER'S 
 DOMESTIC RELATIONS may next be read in the order 
 named. 
 
 Thereafter the law of PROPERTY may be taken up. The 
 student is recommended first to read DARLINGTON ON PER- 
 SONAL PROPERTY, and then TIEDEMAN ON REAL PROP- 
 ERTY. 
 
 By this 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 himself with the main rules of 
 pleading and evidence in civil actions. He should now care- 
 fully study the first volume of GREENLEAF'S EVIDENCE; 
 then HEARD'S CIVIL PLEADING, following it with BRY- 
 ANT'S CODE PLEADING. 
 
 The subject of EQUITY 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 EQUITY. 
 
 This may be followed by a work on NEGOTIABLE PAPER. 
 BIGELOW ON BILLS AND NOTES, or NORTON ON BILLS 
 AND NOTES (3d Edition), or HUFFCUT'S 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; MORAWETZ, TAYLOR, or EL- 
 LIOTT ON PRIVATE CORPORATIONS; COOLEY'S PRIN- 
 CIPLES OF CONSTITUTIONAL LAW; and POMEROY ON 
 REMEDIES AND REMEDIAL RIGHTS. 
 
NEW YORK LAW SCHOOL. 
 
 MEW YORK CITY, N. Y. 
 
 CURRICULUM FOR LAW CLERKS, RECOMMENDED BY 
 THE DEAN OF THE NEW YORE LAW SCHOOL. 
 
 Elementary Law ,. Robinson. 
 
 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. . . Huffcut. 
 
 Bailments Lawson or Halo. 
 
 Sales Tiffany. 
 
 Partnership George* 
 
 Negotiable Paper .... Norton. 
 
 Insurance Richards. 
 
 Principal and Surety. ., Baylies. 
 Equity Jurisprudence Eaton, or Bispham. 
 Law of Corporations. . Elliott, or Clark. 
 Wills and Administra- f Schouler on Wills. 
 
 tions "^ Croswell on Exrs. and Admrs. 
 
 Real Property , Tiedeman. 
 
 Pleading and Practice K T. Code Civil Procedure. 
 Evidence Greenleaf (1st volume), or Chase's 
 
 Stephen's Digest of Evidence; 
 Constitutional Law . . . Oooley. 
 Legal Ethics ...... %mt Sharswood. 
 
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 Cases on Property. 
 
 IDigby's History of the Law of 
 Keal Property. 
 Williams on Eeal Property. 
 „ , , j Harriman on Contracts. 
 
 ( Keener's Cases on Contracts. 
 
 _ . ( Keener's Oases on Equity. 
 
 MmtJ , j Bispham's Equity. 
 
 Trusts Ames's Oases on Trusts. 
 
 _, . , ( Thayer's Cases on Evidence. 
 
 * " " ' " ( Greenleafs 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 bjj logical processes will lead up to that 
 
Bab Examinations and Coubses of Study. 315 
 
 which may come a year later. The learned gentlemen who 
 constructed each of the courses made it a wort perfect in 
 itself, a finished structure from foundation to roof; the dis- 
 turbance of a single item would destroy its usefulness, and 
 the student who attempts to form from either a system to 
 suit himself will 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 books suggested; 
 if not, buy at least one of them on each topic; you cannot 
 work without tools. You will acquire a law library some 
 time. Why not begin with the volumes here recommended? 
 Every dollar so spent will be advantageously invested, and 
 its 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 reacLin 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." 
 
316 Bab Examinations and Coueses of Studt. 
 
 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, hut 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- 
 sponding 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- 
 riculum 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 else. 
 
 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 reproach, either to 
 himself or to his calling. 
 
Bab Examinations and Coueses of Study. 317. 
 
 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 of 
 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. 
 
INDEX. 
 
 PAGE. 
 
 ADMISSION; PRACTICE ON, AFTER EXAMINATION 10 
 
 First Department 11 
 
 Second Department 12 
 
 Third Department 13 
 
 Fourth Department 14 
 
 ANSWERS 141-265 
 
 BAR EXAMINATIONS: 
 
 Preparation for 1 
 
 Subjects of examination 4 
 
 How to take the examination 5 
 
 Questions given on examinations, considered 7 
 
 CHARACTER: 
 
 Good moral character necessary for admission. . . 268, 275, 276, 281 
 of those admitted on motion 275 
 
 Certificate of, what to contain II 
 
 not conclusive 10, 276 
 
 by whom to be made 11, 276 
 
 in First Department 11 
 
 in Second Department 12 
 
 in Third Department 13 
 
 in Fourth Department 14 
 
 Certificate of, to be filed when 10, 276 
 
 Form of certificate 295 
 
 COURSES OF STUDY FOR LAW CLERKS 299 
 
 Cornell Law School ; course recommended by faculty of 305 
 
 Yale Law School } course recommended by faculty of 311 
 
 New York Law School; course recommended by faculty of 313 
 
 University of Pennsylvania Law School; course recommended 
 by faculty of 314 
 
 FORMS: 
 
 Certificate of commencement of clerkship 285 
 
 Applicant's affidavit 289 
 
 Attorney's affidavit 294 
 
 Certificate of good moral character 295 
 
 Registration oath 296 
 
 Affidavit by attorney to obtain order filing clerkship certificate 
 
 nunc pro tunc 286 
 
 by law clerk 287 
 
 Order ; filing certificate of clerkship nunc pro tunc 288 
 
 [319] 
 
320 Index. 
 
 QUESTIONS: page. 
 
 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, 256, 301, 302, 303, 304, 305, 306, 351, 
 352, 353, 354, 355, 356. 
 Real 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. 
 Contracts : 
 
 Nos. 10, 11, 60, 61, 110, 111, 160, 161, 210, 211, 260, 261, 310, 
 311, 360, 361. 
 Partnership : 
 
 Nos. 12, 13, 62, 63, 112, 113, 162, 163, 212, 213, 262, 263, 312, 
 313, 362, 363. 
 Negotiable Instruments : 
 
 Nos. 14, 15, 64, 65, 114, 115, 164, 165, 214, 215, 264, 265, 314, 
 315, 364, 365. 
 Principal and Agent: 
 
 Nos. 16, 17, 66, 67, 116, 117, 166, 167, 216, 217, 266, 267, 316, 
 317, 366, 367. 
 Principal and Surety: 
 
 Nos. 18, 19, 68, 69, 118, 119, 168, 169, 218, 219, 268, 269, 318, 
 319, 368, 369. 
 Insurance : 
 
 Nos. 20, 21, 70, 71, 120, 121, 170, 171, 220, 221, 270, 271, 320, 
 321, 370, 371. 
 Bailments : 
 
 Nos. 22, 23, 72, 73, 122, 123, 172, 173, 222, 223, 272, 273, 322, 
 323, 372, 373. 
 Sales : 
 
 Nos. 24, 25, 74, 75, 124, 125, 174, 175, 224, 225, 274, 275, 324, 
 325, 374, 375. 
 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. 
 Criminal Law: 
 
 Nos. 31, 32, 33, 81, 82, 83, 131, 132, 133, 181, 182, 183, 231, 232, 
 233, 281, 282, 283, 331, 332, 333, 381, 382, 383. 
 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. 
 Wills and Administration: 
 
 Nos. 37, 38, 39, 87, 88, 89, 137, 138, 139, 187, 188, 189, 237, 238, 
 239, 287, 288, 289, 337, 338, 339, 387, 388, 389. 
 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. 
 
Index. 321 
 
 QUESTIONS— Continued. page. 
 
 Corporations : 
 
 Nos. 43, 44, 45, 93, 94, 95, 143, 144, 145, 193, 194, 195, 243, 244, 
 245, 293, 294, 295, 343, 344, 345, 393, 394, 395. 
 Domestic Relations: 
 
 Nos. 46, 47, 48, 96, 97, 98, 146, 147, 148, 196, 197, 198, 246, 247, 
 248, 296, 297, 298, 346, 347, 348, 396, 397, 398. 
 Constitutional Law: 
 
 Nos. 49, 50, 99, 100, 149, 150, 199, 200, 249, 250, 299, 300, 349, 
 350, 399, 400. 
 
 REGISTRATION LAW: 
 
 Attorneys and counselors to take and subscribe registration 
 
 oath 271 
 
 Oath, form prescribed 271 
 
 form of 296 
 
 to be filed in office of clerk of Court of Appeals 271 
 
 Attorneys of Supreme Court, admitted prior to July 1, 1847, 
 
 must register 272 
 
 Solicitors in chancery, admitted prior to July 1, 1847, must 
 
 register 272 
 
 Oath may be filed nunc pro tunc 272 
 
 Fraud or deceit in oath, a felony 273 
 
 False statement in oath, a felony 273 
 
 Attorney not entitled to practice until oath is filed 273 
 
 Official register of attorneys, etc., created 273 
 
 Attorneys ; persons not licensed as, must not practice 27$ 
 
 penalty for unlawfully practicing 274 
 
 district attorney to prosecute violations 274 
 
 Fee for filing oath 274 
 
 Official Register to be printed each year and filed with county 
 clerks and clerks of each Appellate Division by clerk of Court 
 of Appeals 274 
 
 RULES, COURT OF APPEALS: 
 
 Attorneys or counselors to be admitted and licensed by Appel- 
 late Divisions 275 
 
 those admitted in another State for three years or more . . . 275 
 
 may be licensed without examination 275 
 
 those admitted in another State one year or more 276 
 
 conditions on which such are admitted 276, 277 
 
 latter need not have Law Student's Certificate 276 
 
 attorneys residing in adjoining State may be admitted . . . 275 
 conditions on which such admission is granted 275 
 
 Applicants for admission: 
 
 must produce and file certificate of State Board of Law 
 
 Examiners 276 
 
 certificate of good moral character required 276 
 
 qualifications required of, for examination 276 
 
 21 
 
322 Index. 
 
 RULES, COURT OF APPEALS— Continued. 
 
 Applicants for admission — Continued. page. 
 
 citizen, must be 276 
 
 of full age 276 
 
 resident of the State 276 
 
 of Department for six months 267, 281 
 
 may be examined in any Department 280, 282 
 
 must not have been examined and refused within three 
 
 months 280 
 
 period of law study three years 276 
 
 period of law study must be after eighteen years of age. . . 277 
 period of law study for graduates of college or university. 276 
 period of law study fulfilled by clerkship or by attending 
 
 a law school, or part by clerkship and part by law school. 277 
 period of law study by graduate of college or university 
 
 must be after his graduation 277 
 
 period of law study required of attorneys admitted in 
 
 other States 277 
 
 Regents' examinations, provided for 277 
 
 passing of, how proved 279 
 
 subjects of examination of 277 
 
 to be taken within one year after commencement of law 
 
 study 277 
 
 Law student's certificate, provided for 277 
 
 may be granted on passing Regents' examinations 277 
 
 may be granted on a year's study in a college or university. 277 
 may be granted on three years' study in high school or 
 
 academy 277 
 
 may be granted on Regents' diploma 277 
 
 to be filed in office of clerk of Court of Appeals 277 
 
 certificate of such filing to be procured 277 
 
 certified copy 277 
 
 when filed, takes effect, when 277, 278 
 
 to be attached to application papers 279 
 
 if lost, or destroyed, or refused 279 
 
 Law Schools, qualification of, required 277 
 
 length of school year required 278 
 
 attendance for a school year, equivalent to twelve months 
 
 of law study 278 
 
 time of study, how proven 279 
 
 vacations, three months' clerkship during, when allowed . . 278 
 if certificate of attendance is lost, destroyed, or refused. . 279 
 
 Clerkship, a regular law clerkship required 277 
 
 in office of a practicing attorney in this State 277 
 
 after eighteen years of age 277 
 
 to be educationally qualified 277 
 
 certificate of commencement of clerkship to be filed by 
 
 attorney 278 
 
Index. 323 
 
 RULES, COURT OF APPEALS— Continued. 
 
 Clerkship — Continued. page. 
 
 certificate of commencement of clerkship, what to contain. 278 
 
 clerkship not commenced until certificate so filed 278 
 
 time of clerkship computed by calendar year 278 
 
 vacations during clerkship 278 
 
 clerkship during law school vacations 278 
 
 time of clerkship, how proven 278 
 
 certificate of commencement may be filed nunc pro tunc. . . 279 
 if lost, destroyed, or refused 279 
 
 State Board of Law Examiners, qualifications of applicants to 
 
 be passed upon by 267, 276 
 
 proofs of compliance with rules must be furnished to 276 
 
 if proofs are lost, destroyed, or refused, may accept other 
 
 proofs 279 
 
 compensation of 280 
 
 examinations by, oral or written, or either or both 280 
 
 examinations, when and where to be held 280 
 
 examinations to be uniform 280 
 
 College or university graduate ; period of law study required of. 276 
 
 must be after graduation 277 
 
 need not pass Regents' examinations 277 
 
 proof of graduation, how made 278 
 
 if proof of graduation is lost, destroyed, or refused 279 
 
 degree must be certified to by Board of Regents 282 
 
 Spanish- American war veterans 280, 283 
 
 RULES, STATE BOARD OF LAW EXAMINERS : 
 
 Applications for admission to be filed with Secretary 281 
 
 when to be filed 281 
 
 to state certain requirements 281 
 
 Residence for six months prior to application 281 
 
 Residence to be actual and not constructive 2S1 
 
 Residence, proof of, how made 281 
 
 Examination fee, amount of 280, 282 
 
 when to be paid 282 
 
 Applicant may be examined in any Department 282 
 
 to be certified to Department of residence 282 
 
 to entitle papers in Department of examination 282 
 
 College or university graduate must have degree certified to by 
 
 Board of Regents 282 
 
 if certification is refused 279, 282 
 
 Application papers to be attached together 283 
 
 to be indorsed 283 
 
 to be entitled 283 
 
 form of title 283 
 
 Vacations, beginning and end of each to be stated in applica- 
 tion 283 
 
324 Index. 
 
 RULES, STATE BOARD OF LAW EXAMINERS— Continued, page. 
 Law School, beginning and end of each term to be stated in ap- 
 plication 283 
 
 Attorneys, of other States, special proof required of 283 
 
 Spanish- American war veterans 283 
 
 RULES, SUPREME COURT: 
 
 General rule 281 
 
 Certificate of law examiners to be filed 281 
 
 Certificate of good moral character to be filed 281 
 
 Second Department; special «»ule 12 
 
 STATUTES REGULATING ADMISSION TO THE BAR: 
 
 Attorneys or counselors, qualifications for 267 
 
 must be a citizen 267 
 
 of full age 267 
 
 residence ; . 267 
 
 must be examined and licensed 267 
 
 State Board of Law Examiners created 267 
 
 number of 267 
 
 qualifications of 267 
 
 to be appointed by the Court of Appeals 267 
 
 term of office of 267 
 
 to certify those who pass to the Appellate Division 267 
 
 to report to Court of Appeals 268 
 
 uniform examinations provided for 267 
 
 court to fix compensation of examiners .- 267 
 
 Examinations, number of, in each year 267 
 
 examination fee limited 267 
 
 three examinations for one fee 267 
 
 applicants for admission must pass examination 267 
 
 applicants for admission must comply with rules 268 
 
 applicants for admission must reside in Department six 
 
 months 267 
 
 applicants must be of good moral character 268 
 
 Race, no cause for refusing examination or admission 268 
 
 Sex, no cause for refusing examination or admission 268 
 
 Fraudulent act or representation cause for revocation of license. 268 
 Court of Appeals to make provision for admission of persons 
 
 admitted to practice in other States or countries 268 
 
 to make rules regulating admission, how changed 268 
 
 Law School graduates, may be excepted from rules 268 
 
 Attorney to take constitutional oath 269 
 
 to subscribe roll or book of attorneys 269 
 
 to receive certificate of admission 269 
 
 admitted, who resides in an adjoining State, may practice. 269 
 
 must maintain an office in this State 269 
 
 service on such non-resident attorney 269 
 
 no person allowed to practice except attorneys 270, 273 
 
Index. 325 
 
 PAGE. 
 
 STATUTES REGULATING ADMISSION TO THE BAR— Continued. 
 Deputy clerk; not to practice in court of which he is deputy 
 
 clerk : 269 
 
 Special deputy clerk; not to practice in court of which he is • 
 
 special deputy clerk \ 269 
 
 Sheriffs; not to practice in any court during office \ 270 
 
 Under sheriff ; not to practice in any court during office 270 
 
 Deputy sheriff ; not to practice in» any court during office 270 
 
 Constable; not to practice in any "court during office 270 
 
 Coroner ; not to practice in any court during office 270 
 
 Crier ; not to practice in any court during office 270 
 
 Attendant of a court ; not to practice in any court during office. 270 
 New York; none hut regularly admitted attorneys to practice 
 
 in 270, 273 
 
 violations, a misdemeanor • 270, 274 
 
 judge, in New York city, who permits such, guilty of mis- 
 demeanor 270 
 

 
 
 •K