A 130-year-old bar exam: Could you pass?

In the 1890s, a very privileged handful of students was educated at Osgoode Hall Law School, in classes run by the Law Society of Upper Canada. The school had just five members in its faculty, three of whom had law degrees. Most of the classes seem to have been taught by R.E. Kingsford and P.H. Drayton. Kingsford had an LLB degree. Drayton did not.

In the 1890s, a very privileged handful of students was educated at Osgoode Hall Law School, in classes run by the Law Society of Upper Canada. The school had just five members in its faculty, three of whom had law degrees. Most of the classes seem to have been taught by R.E. Kingsford and P.H. Drayton. Kingsford had an LLB degree. Drayton did not.

Clerking and articling students had to attend Osgoode Hall — the actual hall, at Queen Street and University Avenue in Toronto — for three semesters. They were tested each semester, with exams in common law, property, equity, wills and estates, statute law, real estate law, mercantile law, contracts and torts, criminal law and statutory interpretation.

As a sort of continuing professional development and, likely, to show the bar that the teaching wasn’t being dumbed down, these exams — each consisting of 10 questions on each subject and almost certainly not open-book — were published in the Canada Law Journal.

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Parts of the 1890 bar exams were ripped from the headlines.

In torts, there were very few questions on negligence. Most dealt with the idea of contributory negligence, which was hotly debated in Canada and the U.K. British common law had little room for the concept, but courts in America recognized it.

A standard scenario used in the exams and law journal articles involved a man leaving a donkey tied in the middle of a busy road, where it was run over by a speeding carriage. In British law, the donkey owner was entirely at fault. In some American jurisdictions, liability was split between parties.

There were far more questions about defamation on the bar exams than questions about the law of negligence.

Libel had made headlines in the past few years. Charles Stewart Parnell, head of the Irish home-rule delegation in Britain’s House of Commons, had sued the London Times, mouthpiece of England’s landed classes, for buying and printing a collection of letters under the headline “Parnellism and Crime.” The letters, connecting Parnell and other respectable politicians with anti-landlord violence in the Irish countryside, were fake.

Parnell sued. By 1890, the case was in discovery. The Times refused to divulge the name of the forger or its circulation figures. A motions judge allowed the Times to protect its source, but it forced the paper to cough up its circulation numbers. Since the numbers were a trade secret, the paper settled, giving Parnell $1,107,069.23 (£5,000 or $8,677.48 at the time) and absorbing a crippling $44,282,769.11 (£200,000 or $347,099 at the time) of legal fees

The exams were also heavy on wills, real estate and trusts, since those were the kind of cases most lawyers dealt with. Canada was a rural country, and the buying and selling of farmland kept registry offices busy.

Some of the questions are antiquated. There were far fewer spousal rights for women, and what they called “lunatics” were still housed in “asylums” across the country, and these outdated legal concepts are reflected in the questions posed to the law students. But many of the questions could show up on a modern law school or bar exam. And some lawyers would have a very tough time getting them right.

So, how would you do?

Criminal law

On an indictment against an accessory, it is proposed to use as evidence against him the confession of the principal. Can this be done? Why?

How far is the proprietor of a newspaper criminally liable for the publication of a libel supposing him to have had no part in the publication?

What rule is there as to the precedence of criminal prosecutions over civil actions for the same offence? How, when and by whom can the precedence be insisted on?

Enumerate the cases in which an officer may lawfully kill a person charged with a crime.

 

Torts

In trespass and assault against two persons, it is asked to sever the damages because the assault is proved to have been committed by one with more violence than the other. Can this be done? Why? What is the proper course?

What difference is there between a man’s right to use force to turn out a trespasser who has entered peaceably and his right to use force to prevent a forcible entry?

Explain how far the animus is regarded in cases of breach of contract, tort and crime, respectively.

Distinguish absolute privilege from qualified privilege as affecting communications.

 

Contracts

A and B are co-sureties. A verbally promises B that he will indemnify him. On being sued, he claims that not being in writing, he is not liable. Is he right? Why?

Are contracts entered into with lunatics void or voidable?

What is the liability of a carrier for delivery to a fraudulent purchaser?

What is the effect, if any, as regards the statute of limitations of a written acknowledgment of a debt containing a promise to pay it upon a certain condition?

 

Real estate and property

Where there is an agreement for the sale of farm property, which is silent as to the crops, what are the rights of the vendor and purchaser in respect thereof?

A testator who died last December devised his house and lot in Toronto to A. Would you, acting for a purchaser, accept title through A? Reasons for your answer.

What difference is there between the rules regulating the right to subterranean water and those applicable to the enjoyment of streams and rivers above the ground?

A, a married man, owns two estates, Blackacre and Whiteacre. Blackacre is sold under an execution. Whiteacre is sold for arrears of taxes. What effect has each sale upon the wife’s right to dower?

   

Corporate law

A question arises on the true construction of an arbitration agreement. Who must decide this question? Explain.

A covenants with B to insure his (A’s) life within a given time. Before the end of that time, his health becomes so bad as to be uninsurable. What is the effect of this covenant?

From what losses is a carrier by water exempt at common law, and against what species of losses will not even the usual express exemptions in the carriage agreement exempt him?

A is agent for B, and as such effects a sale for B by fraudulent misrepresentation at a high price. A is subsequently compelled by the purchaser to refund the money. He is then sued by B to recover the price. How far should he succeed? Why?

Mark Bourrie is an Ottawa-based lawyer and historian who has written a dozen books on topics ranging from Great Lakes shipwrecks to Stephen Harper’s attempts to control government information. His next book, Bushrunner: The Adventures of Pierre Radisson, will be published by Biblioasis this spring.

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