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4. Representations in application for policy: use of vides for the assessment for such improvements intoxicating liquor: question for jury.-In an applica- upon the property benefited, "of all the expenses tion for a life insurance policy, the applicant in reply which shall have been paid or incurred. * * * And to questions as to his habits in respect to the use of the said board of assessors are hereby authorized and intoxicating liquor, stated that he did not use ale, required to assess, in the manner provided by law, upbeer or wine, that his habits of life were correct and on the property benefited by the several improveabstemious, a ments * temperate in all respects," that he was * respectively such expenses; free and generous liver." At the trial of an action and all the provisions of law in relation to making, on the policy, testimony was introduced by the de-entering and collecting assessments for local improvefendant showing that about the date of the application and before it applicant did drink whisky, and once to the point of intoxication. On the other side there was testimony from those who knew him well, or were very intimate with him, that his habits were good and he drank but very seldom and they never saw him intoxicated, that they had known him to refuse liquor, and never saw any thing to induce belief that he was not perfectly temperate. Held, to make a question for the jury, whether applicant made a fraudulent answer in his application for insurance. Judgment below affirmed. Van Valkenburgh, adm'r, v. American Popular Life Ins. Co. Opinion by Folger, J.

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5. What is use of intoxicating liquor.-A question whether one makes "use" of "intoxicating liquors or substance," held, a question which does not direct the mind to a single or incidental use, but to a customary and habitual use. Ib. [Decided June 19, 1877.]

NEGLIGENCE.

Injury done to trespasser: fire escape: child ten years old trespassing.- Plaintiff's intestate was a boy of ten years of age, and lived with his father in the upper story of a tenement of defendant. The window of the room occupied by the father opened upon a fire escape which had been constructed by the defendant in accordance with Laws of 1873, ch. 863, § 36. The window was about sixteen inches from the platform of the fire escape. Intestate stepped on the platform of the fire escape, which was about eight feet in length and three and one-half feet wide, aud had an iron railing around the outside portion of it, and then passed to the end, where there was a trap-door and a ladder leading to the platform on the next story below. The hinges of the trap-door, which were rusted and only fastened with a small wire and a string, gave away, and he was precipitated below and killed. By the statute above mentioned, landlords are required, under certain penalties, as a protection against danger from fire, to erect and keep in repair fire escapes to tenement houses. Held, that the intestate was a trespasser, and defendant owed no duty to him to keep the fire escape in repair, and defendant was not liable for intestate's death. Judgment below reversed and new trial ordered. McAlpin, Adm'r, v. Powell. Opinion by Miller, J. Church, C. J., dissented. [Decided June 12, 1877.]

NEW YORK CITY.

1. Assessment of property for local improvement: rule | governing: statutory construction.-By Laws of 1840, ch. 326, § 7, the assessment to be made for local improvements in the city of New York is limited to onehalf the value of the real estate, assessed as valued by the assessors of the ward. By Laws of 1872, ch. 580, provision was made in reference to the approval of certain contracts previously entered into with the city for local improvements, without the observance of the prescribed formalities; and the act further pro

ments in said city shall apply to every such expense and assessment." An assessment of more than onehalf the value of petitioner's lots was made thereon for local improvements authorized in 1871, and included within the purview of the act of 1872, and completed in 1873. Held, that the act of 1840, limiting assessments to one-half the assessed value of the property, was the general law governing all assessments for local improvements; that this provision was not abrogated by the act of 1872, and that the assessment on petitioner's lots was invalid and could not be enforced. Order of General Term reversed. In Matter of Petition of Cram. Opinion by Andrews, J.

2. Implied repeal of statute: rule as to. - The rule that a subsequent statute effects a repeal of a former one by implication "only so far as it is clearly and indisputably contradictory and contrary to the former act in the very matter, and the repugnancy such that the two acts cannot be reconciled" (Foster's Case, 11 Rep. 59), applies with great force, when the effect of holding the former statute repealed by implication would be to change the settled policy of the law upon the subject to which the latter statute refers. Ib. [Decided May 22, 1877.]

SERVICE.

1. Of summons on foreign corporation: cause of action arising in this State. Plaintiff made a contract with defendant, a Nebraska corporation, to enter its service for five years. His business was to procure Mennonites, who were expected to emigrate to this country from Russia, to purchase and settle upon defendant's lands in Nebraska. He was bound during the whole time to maintain at his own expense an office in the city of New York, and he was to go to Europe for two or three months to arrange for the emigration of Mennonites. There was no place specified where the contract was to be performed, but plaintiff's head-quarters were to be in New York. Held, in an action ou the contract, that the principal part of the contract was to be performed in New York, and the cause of action arose there, so as to render a service of a summons upon one of the directors of the defendant, while in this State upon his own private business, valid service upon the corporation (Code, § 134). Order below affirmed. Hiller v. Burlington & Missouri River R. R. Co. in Nebraska. Opinion by Earl, J.

2. Constitutional law: statutes regulating service of process. — Held, also, that the statute authorizing such service was within the legislative authority, and not in violation of any constitutional provision. Ib. [Decided June 19, 1877.]

RECENT BANKRUPTCY DECISIONS.
ATTACHMENT.

Not dissolved by composition.-An attachment in a State court, levied within four months of the commencement of involuntary proceedings, is not dissolved by a composition under the bankrupt law, without an adjudication and assignment. U. S. Dist. Ct., Iowa. In re Shields, 15 Nat. Bankr. Reg. 532.

BAR TO ACTION.

Discharge is: notice by publication.-Where notice has been duly given by publication, a discharge will bar the claim of a creditor whose name was omitted from the schedule, or was not furnished to the marshal, where such omission was not fraudulent. Sup. Ct., Georgia. Heard v. Arnold, 15 Nat. Bankr. Reg.

543.

DISCHARGE.

Jurisdiction of court to grant, presumed: fiduciary debt: pleading.-Where the discharge of a bankrupt is brought into question in a collateral action, and the record discloses nothing on the point, the jurisdiction of the court granting such discharge will be presumed. Prima facie, a judgment upon a promissory note is not for a fiduciary debt. In an action to enjoin the collection of a judgment on the ground that the debtor has been discharged in bankruptcy, a copy of the discharge need not be set forth in the complaint, but the discharge may be pleaded by a simple averment of the facts. Sup. Ct., Indiana. Hayes v. Ford, 15 Nat. Bankr. Reg. 569.

FRAUD.

Knowledge, when essential to constitute.-In a suit in equity brought by the assignee to set aside a sale as fraudulent under sections 5128 and 5129, the bill must allege that the defendant knew that such sale was made in fraud of the provisions of the act, and such knowledge must be proved in the evidence taken in support of the bill. U. S. Dist. Ct., E. D. Virginia. Crump v. Chapman, 15 Nat. Bankr. Reg. 571.

HOMESTEAD.

Jurisdiction of court of bankruptcy over: agreement to extend time of payment.-Where the homestead of the bankrupt has been sold, pursuant to an order of the bankruptcy court, to satisfy a debt secured upon it by a deed of trust or mortgage, such court has jurisdiction to order the bankrupt to deliver up possession of the property to the purchaser. An agreement to extend the time of payment of a debt secured upon real estate by a mortgage or deed of trust need not be in writing. U. S. Circ. Ct., E. D. Missouri. In re Betts, 15 Nat. Bankr. Reg. 536.

HUSBAND AND WIFE.

Mortgage by wife on separate property for husband's benefit: preference.-Where a wife executes a mortgage on her separate property for the payment of the debts of her husband, who thereby receives a greater sum than he would be entitled to by the courtesy in the residue of the amount realized on a sale of the property under the mortgage after payment of the mortgage debt, the heirs or representatives of the deceased wife are entitled to the fund in preference to the assignees of the husband. Sup. Ct., Pennsylvania. Shippen and Robbins' Appeal, 15 Nat. Bankr. Reg. 553.

JUDGMENT.

Lien of, not affected by bankruptcy.-A lien obtained under a judgment is not affected by proceedings in bankruptcy commenced thereafter. The fact that an appeal has been taken from the judgment does not alter the case, where no bonds have been executed by the appellant, as required by law. U. S. Dist. Ct., California. In re Gold Mountain Mining Co., 15 Nat. Bankr. Reg. 545.

JURISDICTION.

Bankrupt court and court of equity.-Prior mortgagees are not necessary parties to a bill to foreclose a junior mortgage where the only object of such bill is

a sale of the equity of redemption, and there is no substantial doubt as to the amounts due the prior incumbrancers. An adjudication in bankruptcy does not give the bankrupt court such exclusive jurisdiction over the property of the bankrupt as to prevent the entry of a decree of foreclosure on a bill filed prior to such adjudication. A pledgee of bonds as collateral to a loan is not deprived of his right to sell the same by any of the provisions of the bankrupt act, and a purchaser of such bonds, sold after the pledgor became bankrupt, holds them by absolute right. U. S. Sup. Ct. Jerome v. McCarter, 15 Nat. Bankr. Reg. 546.

PARTNERSHIP.

Right of partner to propose individually for composition: jurisdiction.-One member of a firm which has been adjudicated bankrupt may submit a proposition of composition to the creditors of the firm and his individual creditors. The jurisdiction of the bankrupt court is not affected by the fact that an assignment for the benefit of creditors under the State law had been made prior to the adjudication. U. S. Circ. Ct., N. D. Ohio. Pool v. McDonald, 15 Nat. Bankr. Reg. 560.

RECENT AMERICAN DECISIONS.

SUPREME COURT OF WISCONSIN.* HABEAS CORPUS.

Where

When writ denied: for what not designed. the facts stated in a petition for a writ of habeas corpus, and the papers thereto annexed, if established, will not warrant the discharge of the prisoner, the writ will be denied. The writ of habeas corpus is not designed to perform the office of an appeal or writ of error; and cannot be resorted to for the purpose of reviewing orders or judgments which are merely erroneous, made or rendered by a court which had jurisdiction of the subject-matter and of the person. Thus, one who is imprisoned in default of bail, by order of a circuit court of this State, in which a criminal information is pending against him for embezzlement of moneys in his possession as county treasurer, will not be discharged by this court upon habeas corpus, on the ground that the information is insufficient to charge him with any offense, and that the circuit court erred for refusing to quash it for that reason. In re Semler.

NEGLIGENCE.

1. Fires set by railroad locomotive: contributory negligence. Where a railroad is constructed at such a distance from a building that the latter is not likely to be set on fire by sparks from locomotives properly constructed and used, upon such road, it is not negligence in the owner not to remove such building. The railroad company, in such a case, cannot show, by parol evidence, that when it acquired by condemnation its right of way over the land of the owner of such building, he claimed that it would be necessary to remove the building by reason of the road being located so near it, and the cost of such removal was included in the appraisal of his damages. Caswell v. C., M. & St. P. Railway Co.

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21 Wis. 139, and Delaney v. Railway Co., 33 id. 67, distinguished; Kenworthy v. Town of Ironton.

NEGOTIABLE INSTRUMENT.

Promissory notes: transfer of part due notes: notes for purchase-price of land. — One who takes a promissory note, which shows that interest on the principal sum therein named is past due and unpaid, takes it subject to all equities between the original parties. If the vendee of land, under an executory contract, abandons the possession, and the vendor resumes possession, without any agreement between them for a rescission of the contract, it is not extinguished, and the vendee's notes for the purchase-money continue to be valid as between the original parties. Hart v. Stickney.

SALE.

Of personal property: sale to agent. -Where A orders, in his own name, but for the use and as the agent of B (being duly authorized thereto), a chattel from a distant market, and the same is so sent as to make A liable therefor to the vendor, he may pay for it, and, upon delivering it to B, may recover from him the amount so properly paid, although the chattel, on its arrival, was not in good condition, and the payment by A was made after he had notice of that fact from B, who refused to receive it. Green v. Feil.

TORT.

Wrong done by several jointly. -One wrong-doer, by whose fault damage is caused to a party free from fault, cannot relieve himself from liability therefor by showing that some other wrong-doer contributed to produce the injury. - Folsom v. Apple River LogDriving Co.

RECENT ENGLISH DECISIONS.

CONTRACT.

1. Cancellation of written agreement relating to land: breach of contract: measure of damages in contracts relating to realty.-In the absence of fraud the court will not entertain an application for the rescission or cancellation of an agreement in writing relating to land, although incapable of being performed. measure of damages for breach of contract is the same in contracts relating to realty as in contracts relating to chattels. Chanc. Div., Feb. 14, 1877. Noble v. Edwardes; Edwardes v. Noble, 36 L. T. Rep. (N. S.) 312.

The

2. Action by builder: architect fraudulently withholding certificate: collusion with builder's employer.-An action will lie by a builder against an architect who, fraudulently and in collusion with the builder's employer, refuses to certify that he is satisfied with the work done, whereby the builder is unable to obtain payment, if the architect has an interest in the contract between the builder and his employer. Semble, that such an action would lie without proof of special damages. C. P. Div., May 9, 1877. Ludbrook v. Barrett, 36 L. T. Rep. (N. S.) 616.

EASEMENT.

Obstruction of lights: contract.-A, the owner of two adjoining houses, granted a lease of one to B, there then existing in it a certain window, for a term which expired at Michaelmas, 1875; and afterward, in 1874, leased the other house to C. Semble, (1) that, during the currency of B's lease, C could not build so as to interfere with the light coming to B's window; (2) that, on the expiration of B's lease, C could build so as to interfere with the light coming to the window,

as the lease to C had been made by A without any reservation of the right to light. Effect of a proviso as to easements considered. Chanc. Div., March 7, 1877. Warner v. McBryde, 36 L. T. Rep. (N. 8.) 360.

JURISDICTION.

Bonds of foreign government: property of government in hands of agent in England: pledge in favor of bondholders: principal and agent.-Plaintiff was the holder of some of the bonds of a loan issued by the government of Peru, and the defendants were agents in England of that government. Each bond contained a statement that "as a guaranty for the fulfillment of the obligations contracted in this bond, the government of Peru, under the national faith, pledges the general revenue of the republic, and especially the free proceeds of the guano in Europe and in America after the engagements which it has contracted on them are covered; " and that "in all contracts which the government may enter into for the sale of guano, or under whatever form the sale may have, it binds itself to direct that there be set aside out of the proceeds of each half year a sum sufficient for the service of the half year; and, after such service being secured, to dispose freely of the surplus." The interest on the bonds had fallen into arrear. The plaintiff's statement of claim alleged that the guano had been forwarded by the government to the defendants, and received by them for the purpose of meeting the interest on the bonds; and that the guano, or the proceeds of sale in the hands of defendants, became applicable, and ought to have been applied by them, in the first place, in payment of the unpaid interest due on the bonds. Notice of the action had been given to the Republic, but they made no claim to the guano or moneys in the defendants' hands. The defendants claimed a charge or lien on the guano or the proceeds of sale thereof. On demurrer to the statement of claim, held (affirming the decision of Hall, V. C.), that the bonds were engagements of honor by the foreign government and did not contain any contract enforceable by the courts of this country, nor by the courts of the country which issued them, without the consent of the government. The bonds, therefore, gave the plaintiff no right of action. The pledge, such as it was, in the bonds, was made expressly subject to prior engagements, which must include the expense necessary for carrying on the government. The defendants were agents of the Republic, and an agent could not be sued in the absence of the principal; and as, in this case, the principal was a foreign government, it could not be sued at all. Ct. App., April 18, 1877. Twycross v. Dreyfus, 36 L. T. Rep. (N. S.) 752.

LEASE.

1. Restrictive covenant by lessee: disposition by owner of two tenements: easement.-The owner of an estate demised one plot of land for a term of years by a lease which contained a covenant by the lessee that he, his executors, administrators and assigns, would not during the term do on the premises any thing which should be an annoyance to the neighborhood, or to the lessor or his tenants, or diminish the value of the adjoining property, nor build on the land any building or erection without first submitting the plans to the lessor and obtaining his approval. He afterward demised an adjoining plot for a term of years by a lease which contained a similar restrictive covenant. The first lease was assigned to a company, who proposed, with the approval of the lessor, to erect a build

ing which would interfere with the access of light to the house on the plot of land comprised in the second lease. On a bill by the second lessee to restrain the company from erecting and the lessor from approving the proposed building, held (reversing the decision of Bacon, V. C.), (1) that the principle that a lessor can not derogate from his own grant did not compel him to refuse his approval of the proposed building, and (2) that the restrictive covenants in the first lease did not inure for the plaintiff's benefit; and that, consequently, he was not entitled to any relief. Ct. App., Dec. 19, 1876. Master v. Hansard, 36 L. T. Rep. (N. S.) 535.

2. Landlord and tenant: continuance of tenancy after expiration of lease: assignees of reversion: covenant to repair.-A tenant for life of an estate for 1,000 years demised from year to year, with six months' notice to quit, lessee covenanting to repair. After the death of the tenant for life the co-executor assigned the reversion of the estate for 1,000 years. The lessee continued to pay rent to the assignees of the reversion, and gave six months' notice to quit. Held, that this furnished evidence that the lessee held over upon the terms of the original agreement, and was bound by the covenant to repair. Held, also, that the executor of the tenant for life was properly joined as a plaintiff. C. P. Div., May 29, 1877. Wyatt v. Cole, 36 L. T. Rep. (N. S.) 613.

SHIPPING.

1. Material men: equipment: British ship: lien: purchaser with notice.-A material man, who supplies stores and materials for the equipment of a British ship, having no maritime lien, cannot enforce his claim against the ship in the hands of a subsequent purchaser thereof, even though such purchaser has notice at the time of purchase that the claim is still unpaid. Adm. Div., April 17, 1877. The Aneroid, 36 L. T. Rep. (N. S.) 448.

2. Salvage of life: liability of cargo: merchant ship-| ping act 1854 (17 & 18 Vict., c. 104), sections 458, 459.— Where life salvage is performed, cargo, subsequently salved from the same vessel as the lives, but by persons employed by the owners for the purpose and wholly distinct from the life salvors, is liable to contribute toward the reward due to the life salvors under the provisions of the merchants shipping act 1854, sections 458, 459. Ct. App., April 21, 1877. Cargo ex Schiller, 36 L. T. Rep. (N. S.) 714.

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members of the committee for their inability to attend the meeting.

A new edition of the Blue Book containing the act of incorporation, a list of the members of the society, etc., was presented to the meeting by Mr. Shepard.

Mr. Shepard presented to the meeting the report of the committee on prizes, which was accepted and filed.

The report of P. S. Danforth, chairman of the committee on admissions, was also received and filed. The following resolutions were then passed by the meeting:

By Mr. Shepard:

Resolved, That the Chairman appoint, with power to increase their own number and to fill vacancies, five members as a committee of arrangements for the annual meeting; that this committee prepare an order of exercises for that meeting; call in, arrange and print separately the various reports to be presented to the Executive Committee on the day preceding the annual meeting; employ a stenographer to report the proceedings of the annual meeting; invite the attendance of the honorary members and any distinguished lawyers from abroad; invite the reading of theses or the delivery of addresses by designated members on topics to be assigned by the committee; and take such other steps as they may deem best to secure a large attendance of the profession and give permanent interest to the proceedings.

By Mr. Shepard:

Resolved, That the Corresponding Secretary is directed to procure (as far as practicable) and submit with his annual report, copies of the acts of incorporation, articles of association, constitution, by-laws and proceedings of all the State and other Bar Associations and Legal Societies in this State, other States and countries, and that he is charged with the duty of carrying into practical operation the last clauses of our act of incorporation, which are in these words, viz.: "This corporation shall deposit a copy of its charter, constitution and by-laws, and of each of its annual reports in the State Library at Albany, and in each of the libraries provided for the use of the justices of the Supreme Court in the several counties of the State. It shall be the duty of every local Bar Association to deposit with the New York State Bar Association a copy of its act or certificate of incorporation, or its articles of association and its constitution and by-laws and its annual report"; and that the Corresponding Secretary certify the necessary expenses incident to the discharge of his duties, to this committee for audit and payment.

By Mr. Shepard:

Resolved, That the Vice-Presidents of the Association be requested to present at the annual meeting, November 20, 1877, nominations for honorary membership under article III of the Constitution, and for that purpose to correspond or confer with each other, and send their nominations to the Vice-President, Hon. Horatio Ballard, Cortland, N. Y.

And that the executive committee are of opinion that distinguished lawyers of other countries as well as of other States of the Union are appropriately eligible to such honorary membership.

And that the expense incidental to the performance of these duties be certified by Vice-President Ballard to this committee for audit and payment.

By Mr. Shepard:
Amendments to rules and regulations of Executive
Committee:

V. In addition to the above methods of transacting business by the general executive committee, any member thereof may transmit to the (chairman any resolution in writing upon any subject whatever, and if the chairman shall approve of submitting the same to the committee he shall forward it with such approval to the secretary, who shall thereupon print and submit the same to all the members of the committee by mail, who shall forthwith return their votes thereon to the secretary. Ten negative votes shall prevent the passage of any such resolution, and if that number shall not be received by the secretary within ten days after he shall have mailed it to the members, such resolution shall be adopted and so entered by the secretary in the minutes.

VI. The secretary shall promptly transmit to every officer of the Association (which includes all the standing committees), and also publish in the ALBANY LAW JOURNAL, a statement of every resolution of this committee adopted by correspondence, and a transcript of the minutes of every meeting of this committee.

VII. The resolution by Mr. Ivins on page 8 of the amendments to go in as No. VII.

By Mr. Sprague:

Resolved, That the committee on law reform be requested to report at the next annual meeting of the State Bar Association, to be held at Albany on the 20th day of November next, such suggestions as they may deem advisable, as to the action of the Legislature at its next session, in respect to the Code of Civil Procedure.

By Mr. Shepard:

Resolved, That the Executive Committee have learned that in various parts of the State some persons who have never been admitted to the bar, and others who have been disbarred, hold themselves out and solicit business as attorneys and counselors at law, either in their own names or associated with partners who are lawyers, thus imposing upon the public and injuring the fair fame of the profession.

That this Committee, deeming the subject of sufficient importance under the eighth article of the Constitution, present the same to the Committee on Grievances, and request that Committee to embody in their annual report to the Association, in November next, such recommendations for the redress of this grievance, the prevention of its continuance and the punishment of the guilty parties as they may deem best. By Mr. Shepard:

Resolved, That the minutes of the Convention to form this State Bar Association be corrected as follows:

On page 17, put Mr. Armstrong's resolution before Mr. Van Allen's, and strike out in its first line "as an amendment," and in the last line "amendment."

On page 20, insert "the last paragraph of" before "the XVth article was amended."

On page 25, third line, strike out the prefix "re" before convene.

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By John R. Putnam:

Resolved, That the secretary of the society be requested to send a copy of the third resolution to each of the Vice-Presidents of the Association, and a copy of the fourth resolution passed at this meeting to each member of the Executive Committee of the Association; also a copy of the fifth resolution passed at this meeting to each member of the Committee on Law Reform; also a copy of the sixth resolution passed at this meeting to each member of the Committee on Grievances.

The Committee then adjourned.

REPORT OF THE COMMITTEE ON PRIZES. NEW YORK, July 17, 1877.

MARCUS T. HUN, Esq.,

Sec'y Executive Committee

N. Y. State Bar Association:

DEAR SIR- Pursuant to your request, I would respectfully report that the Committee on Prizes has been organized by the election of the undersigned as Chairman; and that the vacancy caused by the declination of Mr. Mills, in the second district, has been filled by the election of Hon. Chauncey M. Depew, of Peekskill. The Committee have adopted certain regulations for the contention for the Post-Graduate Prize this year, and for the transaction of its business, a copy of which is hereto annexed. The subject for the prize contention is yet, and shortly, to be announced, and will then be reported to you.

Very respectfully,

Your obedient servant,

ELLIOTT F. SHEPARD, Chairman.

Rules and Regulations of the Committee on Prizes. First. The Post-Graduate Prize (of two hundred and fifty dollars) for 1877 will be awarded to the writer of the best thesis, argument or work upon the following subject.

Second. The essay must be sent to the Chairman of the Committee, at his office, Tribune Building, New York city, on or before the 25th day of October next, signed merely with a nom de plume, and accompanied with the real name of the writer in a sealed envelope. Only the envelope containing the name of the winning author will be opened; all others will either be destroyed unopened or returned with the accompanying manuscript to the author upon his request. The successful essay will be the property of the Association, and all other essays, not requested to be returned, will be filed for preservation in the archives of the Association.

Third. The prize will be awarded at the annual meeting of the Association, in Albany, November 20, 1877, and his Honor, Mr. Justice Hunt, Associate Justice of the Supreme Court of the United States, has consented to present the same, if his official duties will permit of his attendance at the time.

Fourth. Only those can compete for this prize who are members of the Bar of the State of New York, of not less than five years' standing, and the prize can only be awarded when there shall be at least five competitors.

Fifth. Notice of the subject for the prize contest, and the rules respecting the same, shall be given to the profession by such appropriate methods as the Chairman may deem best.

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