and inferentially even in the early reports in New York."

Thus it is very clear that lands in New York descended after 1664 according to the general rule of the common law to the eldest son until 1782, and not according to the custom of Kent." Abundant evidence of this fact may be obtained if desired. But, as in the case mentioned at the outset of this paper, the contrary is maintained, it may be of use to the profession to publish the documents procured from the office of Woods and Forests, through the kindness of its chief. They have never been published before, and they prove the object of the tenendum clause of the early patents. R. L. F.

NEW YORK, Feb. 2, 1900.

M

LAWYER AND SOLDIER.

R. TULLIVER, in the Mill on the Floss," was of opinion that a lawsuit was a species of cockfight in which it was the business of injured honesty, if it wished to succeed, to get a game-bird with the best pluck and the sharpest spurs. Mr. Tulliver was not a student of Glanville or Bracton or other sages of our early law, or he might have illustrated and justified his homely metaphor by a disquisition on the duellum and the champions who played the part of the gamecocks in the medieval lawsuit. Disguise it as we may, it is undeniable that the litis contestatio is a species of warfare - licensed private warfare - conducted according to certain recognized rules, written and unwritten, and waged with tongues instead of weapons, verba non verbera. "War," as Sir Henry Maine has said, is "the litigation of nations." The converse is equally true, that litigation is war or the image of war. What is the corollary from this? Surely it is that the same qualities which make the successful lawyer make also the successful general. Take, for example, the power of inspiring courage and confidence. What wins battles? The devotion of soldiers to their leader implicit confidence in him and his capacity. Napoleon's presence in an engagement was valued at 20,000 men. What wins verdicts? The faculty of persuading juries, as Scarlett did, that you are on the right side. The story is well known of how Wightman, then at the bar, found himself after a long Yorkshire Assize walking in the crowd by the side of a countryman who had been serving day after day on the jury, and getting into conversation with him, asked him what he thought of the leading counsel. "Well," was

"Jackson v. Hendricks, 3 Johns. Cas. 214. "It will be remembered that the Dutch inhabitants preserved for some time their peculiar rules of descent. But this was a mere exception which did not affect the general rule.

Then how much strategy may be exercised by the lawyer! One who had seen Erskine's briefs tells us that they had few notes and interlineations, but particular parts were doubled down and dashed with peculiar emphasis, his plan being to throw all his strength upon the grand features of the cases instead of frittering it away on details. These were exactly Napoleon's tactics to concentrate all his strength on one point. The born Nisi Prius lawyer, like the born general, is alert, ready, resourceful; if he finds himself hemmed in or hard pressed he pushes forward his trenches, makes a counter demonstration or feint, and covers his retreat; he can fight a losing battle, and has the presence of mind to utilize all chances that come in his way. What a lawyer was lost in the hero of Mafeking! The late Lord Coleridge was once in early days defending a prisoner on a capital charge. While he was addressing the jury the gas in court suddenly went out. The adroit advocate saw his chance, and when the light was restored, 'Gentlemen," he said, "you have seen how the light in court has been extinguished and how easily restored. It is in your power to extinguish the light of the prisoner's life; but if you do, it can never be renewed."

Like the general, the lawyer, too, knows that the paramount object is to win subject to the rules of the game, war game or law game, and that all tactics are to be subordinated to this end.

The old English justiciars are notable instances of how arms and the toga may go together. Chief Justices Odo and Fitz Osborne, Geoffrey and Fortescue, were all skilful campaigners, and as well able to lead a charge on the battlefield as to preside on the bench. Sir Matthew Hale trailed a pike in the Low Countries. Lord Erskine and Sir William Grant both did some soldiering before they rose to the highest dignities of the law; and very likely the experience helped them. Lord Eldon would doubtless have made another Fabius Cunctator. And what of Washington and many another fighting president of the United States?

Lord Brougham and Lord Campbell were both men who would have made able generals. Conversely, the soldier Raleigh, as he showed at his trial, would have made an admirable lawyer; so would Julius Cæsar, and Hannibal, and Cromwell, and Napoleon. Napoleon may, indeed, be reckoned among lawyers; did he not exclaim, “I shall go down to posterity with the code in my hand?" It is in its presiding genius that the true greatness of the general and of the advocate discovers itself; not in the wrangling of Nisi Prius or in petty

skirmishes, marches, and counter-marches, but in the calm survey of the whole field of action, in making everything co-operant to the main design. This is the fine picture which Addison draws for us of the Duke of Marlborough on the field of Blenheim, and it has its counterpart in the genius of the consummate advocate. - London Law Journal.

THE

ARMISTICES.

the interests of one force or the other, it would be only proper and reasonable in such a case that the commander of that force should decline to agree to any cessation of hostilities except that arising from an unconditional surrender.

The rules governing such partial armistices are similar in principle to those governing absolute armistices i. e., that either force may proceed only with those preparations and fortifications which it would be beyond the power of the enemy to prevent if the armistice did not exist.

There is one point in connection with armistices on which considerable difference of opinion ex

-

An armistice of the former kind is made by mutual agreement between the governments of the two belligerent powers, and binds every subject of such powers to abstain from hostilities until the termination of the armistice. It does not, however, affect the internal affairs of either belligerent, the rule being that all preparations for war, marching and drilling of troops, etc., may proceed without interruption except in so far as the enemy would have power to prevent them but for the existence of the armistice.

But it is under the second head that the armistice asked for by Commandant Cronjë would fall - namely, when the suspension of hostilities only affects a certain portion of the fores engaged on either side. In such a case as this the armistice is agreed upon by the commanders of the opposing bodies of troops, and only binds those troops to whom they are expressly stipulated as applying. Hence it would have been quite competent for Lord Kitchener to agree to an armistice with the Boer commandant had the circumstances of the case warranted his doing so, and, had he so agreed, such armistice would have been binding on all troops directly under his command at the time, though not upon those engaged elsewhere, as, for instance, the relief column then on the way to Ladysmith.

Partial armistices are usually agreed upon for some definite and temporary purpose, such as the holding of a parley or conference, or the burial of dead and the removal of wounded, and are usually granted by the commander holding the stronger position to his opponent whose position is less advantageous, always provided that the cause of the former will sustain no prejudice owing to the delay thereby incurred. It must, however, be borne in mind that in no case is the commander occupying the inferior position justified in demanding as a right that an armistice should be granted him, and, since instances must necessarily occur in which any delay must act prejudicially to

So.

In Wheaton's International Law, p. 531, the rule is laid down, on the authority of Vattel, that provisions may not be obtained during an armistice by one belligerent over roads held by the other, or by means which the other could, but for the temporary cessation of hostilities, prevent. On the other hand, in Hall's International Law, p. 545, the opinion is expressed that provisions may be obtained by either force, irrespective of the question whether their opponents could or could not have hindered them, the reason given being that, inasmuch as provisions are an exhaustible weapon of defense, the consumption of which continues each day whether an armistice exists or no, a force unable to replenish its supplies would therefore be in a worse position at the end of the armistice than it had been at the commencement; and this is contrary to the principle that each force shall be at the resumption of hostilities neither better nor worse off than at their temporary cessation.

This view of the case would appear to be the correct one, since the governing principle of all armistices, which must above all be adhered to, is the preservation of the statu quo. Law Times (London).

THE

RIGHTS OF A FINDER DEFINED.

THE suit at New Haven of the Fair Haven and Westville Railroad Company against Andrew McNerney, to recover by a writ of replevin the pocketbook of Arthur H. Day which was found by Mr. McNerney in one of the cars of the company, and which was decided the other day in favor of the defendant, is of much interest. The case was heard in the New Haven County Court, before Judge L. M. Hubbard, formerly secretary of the State.

The loss of articles of value in public conveyances and their finding is of common occurrence, but the right of the finder to the property is not generally understood. An epitome of Judge Hub

"1. The property must have been legally lost. "2. The finder must take legal possession.

3. The finder must act innocently in the matter and with entire honesty and good faith toward the owner.

"In order to constitute legal losing the thing must have been actually lost by the owner, not merely mislaid; that is, he must not voluntarily and purposely have laid it away for a time with the intention of retaking it, but it must have, involuntarily and accidentally, as respects the owner, got out of his possession.

"In order to make a man a finder of a lost chattel he must have possession of it; and to constitute this possession three things are necessary:

"A. The fact that the thing found is in his possession must be consciously known to him.

"B. He must have (at least at the time of finding) physical power and control over the thing found.

"C. He must intend to be and remain the owner of the thing found, or at least to exclude others from the object found.

W.

H. YOUNG, a prominent mining man of Butte, Mont., who started in life as a civil engineer, told the following story at the Gilsey house of an experience he once had in his early days: "We were building the line of the Northern Pacific Railroad," said Mr. Young. "and were running it through as rapidly as possible. Where we had the rights of way, well and good, and where for any reason we had them not. well and good also, for we none the less went ahead with the line, trusting to our ability to settle with the owners of the land afterward. I was in charge of the advance guard, and at Mullen. Idaho, we ran across the ground of a funny little justice of the peace named Meagher. Meagher promptly arrested me, for the purpose, as he explained, of holding me as a hostage until he could get service on President Oakes. Being unable to accomplish this praiseworthy purpose, he set a date for my trial, and I engaged Bill' Stoll to defend me. The trial came off in due time. Meagher, J. P., presiding, and in the course of it Stoll, to emphasize and back up his contentions in my behalf, began reading impressively and at

brought into court with him. Meagher, J. P., however, interrupted him with, ‘And phwat is that you're afther readin' from, Misther Stohle?' That, may it please your honor,' returned William, with great dignity, that is a volume containing the decisions of the Supreme Court of Idaho.' Politely, but with ominous calmness, Meagher then directed, Yez may sit down, Misther Stohle. At numerous and diverse times,' continued the learned justice, the Shuprame Coort of Idayho has taken it upon itself to revarse a noomber of my decaysions, and in my toorn I now revarse this decaysion of the Shuprame Coort of Idayho.' And I'm blessed if he didn't," concluded Mr. Young, with a reminiscent sigh. New York Tribune.

To make her fee commensurate. She has the instinct to embrace, (Now I don't mean the populace), But every vantage in the case; She's bound to win just by her face. OTTO M. Sternfeld. N. Y. U. LAW, '00.

THE SALARIES OF FEDERAL JUDGES.

THE

HE ALBANY LAW JOURNAL approves of Attorney-General Griggs' suggestion that the salaries of the Federal judges be increased all around the Supreme Court judges from $10,000 to $20,000, the Circuit Court judges to $10,000, and the district judges to $7,500. The suggestion is one in which The National Corporation Reporter heartily concurs, and we trust that the law journals generally will strengthen the hands of the attorney-general in his effort to bring about this very desirable reform.

We do not wish to be understood as assenting to the precise increases suggested, but to the broad general principle. We would much rather see the

the bench, instead of attempting to save a penny in the hundred dollars of taxation, with the risk of a poorly manned bench to offset it. National Corporation Reporter.

The reason why this measure should be favored by the entire bar is so well known that to repeat it seems a waste of words. We venture to say that in three cases out of four that are argued before the Supreme Court of the United States, the lawver who makes the argument, a lawyer whose fame does not extend, perhaps, beyond his State boundaries, is earning in practice a larger income than the judges who decide the case receive-in some cases ten times as much. If the disproportion in abilities is not as great, it is because the honor of the office tempts lawyers to forego the more sordid rewards of practice. We doubt if a lawyer can be found anywhere to dispute the proposition that the Supreme bench should be flled by the greatest lawyers the country produces. Yet it is beyond doubt that many of our ablest lawyers, who have earned the highest fame at the bar, have felt unable to make the pecuniary sacrifice which acceptance of a seat on the Supreme bench would have entailed a fact that probably has some connection with the occasional appointment of a judge who has not been able to meet the exacting requirements of the office.

sum

When we consider how very trifling a would correct this mistaken policy, as unjust to the judges as it is discreditable to the country, it would seem that there should be no opposition whatever to at least this feature of the attorney-general's programme.

The argument in favor of the Supreme Court applies, though perhaps in a lesser degree, to the Circuit and District Courts. Indeed, as to the Circuit Courts, we do not know that any difference of degree should be admitted, when we bear in mind the vast interests so frequently involved in litigation before those courts. A Federal judge should be paid such a salary that the appointment would be looked forward to as the crown of a successful career by the leaders of the bar.

It is worth while to recall, in this connection, the unpleasant contrast between our practice and that of England and her colonies. We speak subject to correction, but our recollection is that the lord chancellor and the lord chief justice of England receive salaries which almost equal the entire amount paid to the Supreme Court of the United States, and even the nisi prius judges receive larger salaries than our Supreme Court judges. Even the small and comparatively poor country of Canada pays her appellate court judges larger salaries than

Legal Notes.

A contract made over the telephone is legal and binding, according to a decision recently rendered in a Pennsylvania lawsuit, which arose over a deal in coke involving about $8,000. It was held that the telephone message was as binding as though it had been followed by a formal letter.

Hon. J. B. Cassoday, chief justice of the Supreme Court of Wisconsin, has accepted an invitation to deliver an address at the coming meeting of the Illinois State Bar Association on "John Scott and John Marshall," or 'Chief Justice Marshall contrasted with Lord Chancellor Eldon." The heirs at Central Village, Conn., of Philip Bessom, a merchant of the revolutionary period, have received $24,000 from congress in full payment for a vessel their ancestor lost during the war for independence. The descendants of the merchant of 1776 live in and around that village. The sums they receive respectively vary from $21 to $639. Each one has received a check for his or her share from the treasurer of the United States. The case was known in congress as the Killingly heirs' claim.

Subharama Swarminadhin, of Madras, a Brahmin, will in a very short time be the first Harvard Ph. D. who claims India as his home and Brahminism as his religion. He has been at Harvard only three months, but for eight years he has had a life of study. The procuring of the doctor's degree requires the passing of a strict oral examination and the writing of a thesis on an approved subject. Swarminadhin has passed his oral examination and it was commented upon as one of the brightest ever passed by a candidate. For his thesis he has written "Administration of Oriental Law by British Tribunals."

A California judge has rejected the application of an Englishman for naturalization papers because the applicant insisted that he thought a better government than the one we have could be established. On this ground every man who differed with a judge as to the fiscal policy of the nation should be denied the right of citizenship. To Republican judges all Democrats should not be citizens to a Democratic judge all Republicans would be put under the ban. That would stifle all convictions, such as did the Inquisition. Such men as that judge would make excellent officials for his imperial majesty the czar. - Exchange.

Speaking of the European judiciary, Judge Peter S. Grosscup, of the United States Circuit Court of Appeals, who returned recently from a trip