so on; and the law and legal topics and occurrences are not excluded from the range of newspaper enterprise. A paper devoted to the gathering up and dissemination of legal news among its readers is, or at least may be, a newspaper. I regard the Legal Record as a newspaper of that character."

But then, again, a law weekly is not a newspaper." This was held in Beecher v. Stevens, 25 Minn. 146, under a statute requiring publication of summons in a newspaper, in regard to the Northwestern Reporter. The court observed: "This is a twelvepage weekly publication, somewhat different in size and shape from an ordinary newspaper, though the difference is not such as to render it improper to denominate it a newspaper, provided its usual contents are, in general character, like the usual contents of newspapers. It purports to be and is 'devoted specially to the interests of the legal profession.' Its usual contents are the general laws of the State, published shortly after their passage, the 'decisions' of the Supreme Court of this State, the 'decisions' of the Supreme Court of Wisconsin, and occasional decisions of other courts, a court directory, cards of attorneys and counsellors-at-law, a list of transfers of real estate in Ramsey county, advertisements and notices of law books, about a page of miscellaneous advertisements, and legal anecdotes. Except as above, it does not publish, nor assume to publish, what is understood by the current news, or news of the day. Newspapers are of so many varieties that it would be next to impossible to give any brief definition which would include and describe all kinds of newspapers. We are not called upon to incur the risk of giving any such definition at this time. It will be sufficient for all the purposes of this case to say, that in the ordinary understanding of the word, a newspaper is a publication which usually contains, among other things, what is called the general news, the current news, or the news of the day; and nothing which does not usually contain such news, and is intended for general circulation, is a newspaper, in the ordinary sense of the word. Such a newspper is a publication adapted to the general reader. Now, in the absence of some controlling consideration to the contrary, the statute is to be taken to have used the word 'newspaper' in this its ordinary sense, or as Gen. Stat., ch. 4, § 1, expresses it, according to the common and approved usage of the language;' and when the object of the publication of a summons is considered, the reasonableness of such a construction of the word 'newspaper' as requires the publication to be made where it will be likely to meet the eye of the general reader, is quite apparent. For these reasons, we are of opinion that the 'Northwestern Reporter,' though it may properly enough be denominated a 'legal newspaper,' is not a newspaper within the meaning of the statute above cited." The court had the Illinois and the Missouri case before it.

each in turn whirling a hand fastened in the center, the one at whose whirl the hand registers the highest number taking all the money, the owner of the board sometimes putting up money and sometimes charging the winner a small sum for the use of the board, this is not a lottery.

In Cronin v. People, ante, 430, the New York Court of Appeals held that under a power to "regulate" slaughter-houses, a municipal corporation may prohibit them from specified areas in a city. We have known the word “regulate” to have been held synonymous with "suppress," as in the case of the famous Texan "regulators."

In Goodman v. Cody, 1 Wash. 329, a verdict of damages was arrived at by averaging the separate markings of all the jurors. This was held to be arrived at by "chance." But in Turner v. Tuolumne Water Co., 25 Cal. 397, the contrary was held, and so Chief Justice Kent thought. See ante, 443. It seems then that a judicial decision is a matter of chance."

In Poor v. Hudson Ins. Co., 2 Fed. Rep. 432, a policy of insurance upon a summer hotel provided that a family should live in it throughout the year. It was destroyed by fire, and at the time two menservants and employees of the insured were staying therein, taking their meals at an adjoining hotel, and working around the premises. Held, that this was a "family." The court said: "The most comprehensive definition of a 'family' is, a number of persons who live in one house and under one management or head. There is no specific number required to constitute a family; but they must live together in one house and under one head. Nor is it necessary that they should eat in the house where they live. There are many families, it is well known, who live in one place and eat outside of it. was it necessary that they should be employed in the house or about it; nor was it material that they were hired. The precise question is, were they living there together, under one head or management? This is one of fact and not of law." "Many persons have residences in town, and at the seaside, or at the mountains, at the same time, and may be said to live at both places." So the absence of the plaintiff, his wife, and his sons, was held to make no difference.

Nor

In Yerkes v. Nat. Bank of Port Jervis, 69 N. Y. 383; S. C., 25 Am. Rep. 208, it was held that a National bank, under the power to "negotiate" evidences of debt, might exchange government bonds for registered bonds. The court said: "To negotiate means, among other things, 'to transfer, to sell, to pass, to procure by mutual intercourse and agreement with another, to arrange for, to settle by dealing and management.'' The same meaning was approved in the dissenting opinion of Tappan, J., in Nat. Bank of Gloversville v. Wells, 14 Hun, 51; S. C., Browne's Nat. Bk. Cas. 333.

We find a negative definition of "town," in Chicago and Northwestern Ry. Co. v. Town of Oconto, Wisconsin Supreme Court, ante, 373, where it is held that a "town" cannot consist of two separate and detached tracts of land.

66

pas

A mail agent, travelling on a railway, is a senger," although no specific fare is paid by or for him. Price v. Penn. R. Co., Phila. Com. Pleas, ante, 391. The court remarked: "Webster defines a passenger: 'One who travels in some conveyance as a stage coach or steamboat.' The fact that a man is employed on his travels does not exclude him from being a passenger in the popular acceptation of the term, nor does it in view of the statute, else why the proviso excepting passengers? While in our view of the case the deceased was carried for hire, in view of the many authorities, some of which will hereafter be referred to, we deem it immaterial as to whether or not he was carried for hire or carried free, nor is it material that he was carried on the contract of another with defendant."

A wife is not an "other person" from her husband, within the meaning of a statute forbidding malicious damage of the property of "any other person." So a husband may smash his wife's sewing-machine with impunity. So held in State v. Nugent, New Jersey, ante, 410. But we believe that it has never been held that if a husband murders his wife he simply commits suicide. At all events the courts generally hang him for such suicide. See also, Brooks v. Cook, ante, 442.

A racing-park association does not carry on a "public exhibition of feats of horsemanship," nor a “show." U. S. v. Buffalo Park, 16 Blatchf. 189.

W

"RYE AND ROCK."

E have been favored with a copy of the brief of appellant's counsel, in the case of Van Beil v. Prescott, lately decided in our Court of Appeals. Counsel sometimes doubt whether the judges read their briefs, but there can be no doubt in this case that the judges read every word, and ought to have laughed at every page of the fifty brilliant pages. It seems difficult to select passages from such a production, but there are some things here which the profession would not willingly let die if once they knew them. So we will select a few of the most striking passages. We premise by explaining to the unsophisticated that "Rye and Rock" means (so we are told) rock candy dissolved in rye whisky. We believe it is a medicine. The peroration is as follows:

"Plaintiff adopted Rye and Rock' as a trade-mark in December, 1877, and immediately commenced advertising it for sale on a plan large and liberal enough to spread its fame in ninety days as far and wide as the light of the press could travel. Its fame as a curative, and that too of a disease that had heretofore baffled medical skill, seems to have come forth, Minerva-like, full-grown and fledged at a single bound, and in the suddenness of its development as well as in the universality of its popularity, it stands to day without a rival outside of elevated railroads. By the first of September, 1878. plaintiff had made by the dint of persistent publications those three words 'Rye and Rock,' words of magic, and the demand for it among pulmonary and malarial invalids universal. The loud, long and lusty cry that went up and kept going up, not merely from waste places, but from populous cities not only from restaurants and sample rooms, but also from drug stores. was bound, as a natural matter of course, to attract the attention and stimulate the ag

ally of that class whose brains were only equal to the recognition of results. In other words, with just foresight enough to appreciate a demand another man's money wisely invested in a bold advertising venture had created just liberal enough to commence advertising after another man, by the dint of dollars, had spread

'From earth's remotest bound to ocean's loneliest shore,' enough of that genial and germinating light to warm into life every seed scattered upon the earth's broad face by timid hands, and with just integrity enough not only to stealthily lay their felonious fingers upon the legitimate offspring of another man's genius and enterprise, but even to stoop to purloin the pet appellation with which, when he stood purse in hand, solitary and alone, sponsor for the child's legitimacy at the baptismal altar, its christening was consummated. Had the young stranger succumbed to any one of the mortal maladies such juvenility is heir to, no one of them would have worn crape at the funeral or followed after that hearse. They would all have been found ready to swear that the brat was reputed to be Van Beil's foundling, about whose nativity they knew and about whose fate they cared nothing. But since, unlike frail flesh, it does not seem to have been born to die, but is destined to flourish in immortal youth, it would seem every old superanuated tipple vender in the land is ready to swear to its legitimacy, and when and where it was born and christened, and who is its father and its god-father."

The argument that the words in question are merely descriptive is answered as follows:

Is

"On the trial of this case General Foster insisted that 'Rye and Rock,' like 'mess beef' and salt pork' was descriptive, and I answered him then and there thus: 'On this point plaintiff's counsel feels too little concern to tax his time with an answer. When a court can be found capable of holding that the word 'rock' don't mean and describe rock, but does mean and describe not only rock candy,' but crystallized rock candy and nothing else, and that the word 'rye' does not mean 'rye,' but is bound to mean 'rye whisky' and nothing else, and that those two words united can under no probable or possible contingency, be made to refer to any thing else but crystallized rock candy dissolved in whisky distilled from a cereal heretofore supposed by lexicographers to have been symbolized by those three letters, r-y-e, then the General's theory of the similitude between mess beef,' 'salt pork' and 'Rye and Rock' will not sound quite so quizzical as it now does." "But let us go at once down to the very bed rock of this assumption that our trade-mark is descriptive. What do we sell? Candy dissolved in whisky. either of those words in our trade-mark? No. Is there a synonomist living able to demonstrate, either through the origin, separate use or symbolism of these words a similar significance? Down to this date no effort of the kind in the wide world of letters has ever been made. Our first word is 'rye.' What is rye? It's a cereal. What are its constituent elements? An analysis will show albuminoids, ash, carbo-hydrates, crede fibre and fat. Now, how is whisky made? By distillation of grain in water. What is water? Hydrogen and oxygen. nothing more. Then in 'rye' it would seem there is not a single liquid element. and distillation does not dissolve rye, but simply extracts its essence. By what authority, then, can it be pretended that the name of a cereal that contains neither hydrogen or oxygen describes a liquid 90 per cent of which is hydrogen and oxygen? What is the other word that has been held to be descriptive? 'Rock.' What does the learned geologist tell us rock is? Calcite, dolomite, gypsum, anhydrite, salt, quartz, orthoclase, albite and the related triclinic, feldspars, nephe

It

line and certain zeolites, the micas, chlorites, talc, serpentine, olivine, pyroxene, hornblende, garnet, epidote, staurolite, kyanite, andalusite, tourmaline, graphite, magnetite, hematite, corundum and pyrite. What are the constituent properties of candy? would take four pages to give a proper definition of sugar alone. I'll spare you the infliction by simply stating that there is not in candy a single constituent found in rock, nor in rock one found in candy. How, then, can rock be judicially held to symbolize candy, and the words 'Rye and Rock,' while simply tied together with a conjunctive conjunction, and owing no allegiance to the tyranny of context, nevertheless held to mean and describe rye whisky and rock candy and nothing else? What does plaintiff sell under his trade-mark? Rye? No. Rock? No. If he did, no wise, learned and just court could be expected to give us a reversal. This decision amounts to the conclusion that 'rock' don't mean or describe 'rock,' but something more, to wit: not only candy, but a rare quality of crystallized candy; and that the word 'rye' does not mean or describe 'rye,' but something more, to wit: rye whisky.' It has invaded the broad fields of science, the hoary history of mythology, the blooming gardens of horticulture, the ornithological kingdom, the earth's bowels, mountain tops and river beds, and by the dint of a single assumption driven the word 'rock' from all its old haunts. There are over 250 cities, towns, post-offices and railroad stations, the names of which are 'Rock' or 'Rye,' or either commence or end with one or the other of those two words, saying nothing of mountains, rivers and ravines which have been similarly christened. Ornithologists tell us of the 'rock-dove,' 'rock-pigeon,' and that enormous bird the Roc,' which has lived in Arabian tradition thousands of years. Horticulturists speak of the rockplant,' rock-cress,' 'rock-wood,' 'rock-moss,' 'rockrose' and 'rock-cork,' which is a variety of the asbestos, the fibers of which are loosely interlaced. The sea swarms with 'rock-cod' and 'rock-fish.' gists speak of 'rock-ruby,' 'rock-crystals,' rock-salt,' 'rock-shell,' 'rock-soap,' 'rock-milk,' 'rock-water,' 'rock-butter' and 'rock-alum.' Naturalists speak of the 'rock-doe,' 'rock-goat' and 'rock-rabbit.' Petroleum is described by lexicographers as 'rock-oil' and 'rock-tar.' Then the word 'rock' is known to every ten-year-old country boy on the continent whose mother does her own spinning, as the name of the distaff of her spinning-wheel.

Geolo

"What 'rock' may happen to mean, depends entirely upon the context in which it is found.

Shakespeare employs the word 'rock' 53 times, and every time it is dependent for its meaning upon the context. Frequently he introduces it with an adjective, which, when you think of the havoc Prescott's Rye and Rock' has made among his patrons, could you believe Avon's immortal bard capable of meddling with the business projects of men unborn, you would have to accept as a prophetic warning, especially in their disjecta membra, against Prescott's patronage. For instance, in 'Two Gentlemen of Verona,' Julia speaks of a ragged, fearful, hanging rock.' If defendants could not find a living witness forgiving enough to testify for them, what must we naturally infer from such a strange and suspicious circumstance? Certainly if their rock was not 'ragged,' that it must have made his patrons so, and if so, that it must have been indeed a 'fearful' rock, aud from the number of executions with which it was probably mixed up, is well described as a 'hanging' rock. Then Bottom seems to have his eye on Prescott's property when he alludes to a 'raging rock. Saltar (in the 'Merchant of Venice') seems determined to be understood as wanting to be offensive to defendants as he bluntly blurts out the descriptive phrase 'dangerous rock.' Shakespeare seems to have had Prescott's rock on the brain,

for in his Henry V,' and also 'VI,' such allusions as 'galled rock,' 'dreadful rock' and 'fatal rock,' point almost malignantly at poor Prescott, whose coming rock was then sending its shadows centuries in advance of its own arrival. Pistol, who had lost the courage to live without finding enough to die, asks death for a farewell treat at Prescott's bar in these memorable words, 'rock me to sleep.' Poor Pistol sleeps no sounder now than he soon would sleep were he living today and permitted Prescott to rock' him often. Were Burns living he'd apologize to Dr. Hornbook in an apostrophe to Prescott. Prescott's rock must be that 'mortal mineral' with which Cymbeline's queen intended to take his life. The effect of the one is precisely that of the other. But Shakespeare in looking into the future saw our rock' as plainly as he did Prescott's. In 'Cymbeline' Belarius says, 'I pr'ythee to our rock.' Then in 'Julius Cæsar' occurs this allusion, I will rest on this rock.' Had he said under instead of on we would have readily understood the allusion to have been intended for Prescott's rock. He again alludes in 'Two Gentlemen of Verona' to 'rocks of pure gold,' and in his 'Comedy of Errors' to a 'mighty rock,' and in 'Henry VI' to how the 'rocks cheer,' which sounds so like a prophetic puff for plaintiff's rock, that he holds himself ready to forward a case of his Rye and Rock' to any lineal or collateral descendant of the Shakespeare family able to identify himself as such. Then the Bible contains over 30 sentences which the word 'rock' points, subject in each instance to the laws of context, and brimful of reproaches for Prescott, as I read and interpret them, but I will close this phase of this rock discussion with the 31st verse from the 32d chapter of Deuteronomy, which is in these words: For their rock is not our rock, even our enemies themselves being judges.'

"History and romance abound in incidents and events which have christened thousands of rocks and made their names immortal, from the Tarpeian rock in Rome down to the Logan rock between Penzance and Lands End, and the Menamber at Sithney, which Oliver Cromwell had destroyed because of the superstitious adoration with which the people regarded it. The Scilly Isles are full of christened rocks. Webster gives over fifty compound words, one-half of each of which is rock. How can mortal wisdom undertake to say to which one our rock belongs, if to either, and the truth is it does belong to neither. Why? Because there is no such word in our language as rock-candy.

"The court below did not only hold that the word 'rock' had such a peculiar association and identification with rock-candy, that it must be understood wherever employed alone to refer to candy and nothing else, enough so to amount to a description of candy, so full, so unmistakably that it could not be reasonably conjectured that it could have the slightest reference to any single one of all the tediously numerous objects, animals, minerals, flowers, oils, fish, birds, cities, towns, post-offices, railroad stations, mountains, and rivers with which it is associated, but must mean rockcandy only when such a word as 'rock-candy' is not known to our nomenclature. Before it gets legitimately into our vocabulary at all, it is judicially introduced to the world clothed with a mysterious power, and pregnant of a peculiar significance, with which its derivation has nothing to do. They introduce into an already densely populated world of words an utter stranger, and then slashing it in twain declare half means legally all the whole can literally. Nor do they stop there, but go on to say that to this new comer belongs a breadth of significance never claimed for fifty of its predecessors to which half of its title belongs. That having given rock away to candy, it's now got to mean rock no more, but candy forever more. Having given this hard word a sweet throne, they intend it shall enjoy a long reign in its new dominions. That

because in the ruts of context it may have to obey certain arbitrary laws, it shall, to compensate its involuntary serfdom there, enjoy elsewhere a reign of absolute dominion over confections. They cut a compound word in twain, and dropping the half that indicates its meaning, take the half that belongs to fifty other words and declare it cannot by possibility have any reference to those other fifty better halves, but is descriptive of something not meant at all. There stand the words Rye and Rock.' What mortal mind can say that the rye may not mean rye alone, or rye flour, rye grits, rye bread, rye cakes, or rye biscuit; or that the rock does not mean simply rock, or refer to rocktar, rock-milk, rock-water, or rock-oil?"

666 'Rock' may be so employed as to refer to a ship or a cradle, to a child or a cargo. It may mean rocking windows or stoning disciples, rocking the household's hope to sleep, or pelting the poor little prattler's paternal ancestor to death.

"It may be made equally as graphically to describe mountains or atoms, birds or beasts, fowls, fishes or flowers that is to say, if the lexicographers have not been heretofore mistaken. I admit, if they have, the decision I ask you to reverse must be affirmed, but if they have made no misuse of this word 'rock,' then the restriction that has been put by the court below upon the range of its significance cannot be sustained."

Then comes a trenchant comparison of the virtue of the rival concoctions:

"Life insurance companies should add to their already prolix catalogue of printed questions: Whose Rye and Rock do you drink?' All rivals will have their followers. No undertaker or gravedigger can consult his interest and depreciate Prescott's 'Rye and Rock.' No life insurance officer can fail to feel a lively interest in the popularity of Van Beil's Ryo and Rock.' In the name of longevity, in the name of women and children thus exposed to, if not threatened with widowhood and orphanage; in the name of every illustrious publicist, jurist or physicist whose learning, genius, patriotism and ambition are useful to mankind, and who while in the fruition of perfect health are liable to be suddenly cut down, summoned hence, gathered to their fathers, by simply mistaking one bottle of Rye and Rock' for another, I enter my solemn and earnest protest against the longer fluttering of Prescott's false flags upon commercial high seas. The mischief that has already been done is beyond redress. Its extent never can be known. 'Dead men tell no tales.' Tombstones simply relate their own stories in their own way and then defy cross-examination.

Those deluded victims whom Prescott 'rocked' to sleep will wake no more till Gabriel's golden trumpet summons them to tell on Prescott's final trial, about the deep damnation of their taking off.'

"Van Beil's 'Rye and Rock' restores health. Prescott's deals death. The one inspires, the other blasts hope. Do you want to live? Patronize Van Beil. Are you tired of life? Cultivate Prescott. If you would stimulate your tenacity to life and enjoy the luxuries of a green old age, drink Van Beil's 'Rye and Rock.' If you want to perpetrate the crime but escape the ignominy of suicide, vote early and often at Prescott's precinct. If we were living in a 'pent up Utica'→ had too little land and too many people, then politic possibly it might become to pet Prescott-to pat his presumption on the back. He could atone for his incapacity to increase the acres by exercising his undoubted capacity to decrease the population. But even then, could it amount to less than a deliberate outrage to put in his pocket profits resulting from plaintiff's patronage of the press ?"

Then the peroration:

"I beg to assure the court that Prescotts do not have on their death-roll either kith or kin of mine; that I

Now will our readers credit us when we say, that in spite of this argument, the Court of Appeals affirmed the judgment? This result shakes our faith in the elective judicial system. We do not like to suspect our courts, but this looks as if Prescott had been dispensing his compound not at the bar alone, but also upon the bench. Such things are not unprecedented, for in the brandy-bottle trade-mark case of Hennessy v. Wheeler, a brandy bottle, if not a bottle of brandy, was publicly handed up to the bench- so we are informed - and was passed about, professedly for inspection. After such a public exhibition, how can we be sure that "Rye and Rock" may not have had a deleterious secret influence with the court-rocked their senses asleep or twisted their judgments awry?

No name of counsel is signed to or appears upon this unprecedented brief. We wish we knew the author's name. We would sound it forth so loud that heaven and earth might hear. He is a man after our own heart. But if he sees these lines, let us whisper in his ear a word of gratuitous advice founded on personal experience - our highest court are sadly impervious to a joke.

CUMULATIVE SENTENCES.

ENGLISH COURT OF APPEAL, JUNE 25, 1880.

CASTRO, Plaintiff in Error, v. THE QUEEN. Where a defendant is convicted of separate misdemeanors charged in separate counts in the same indictment, the court has power to pass separate sentences exceeding in the aggregate the maximum punishment for one offense.

By 2 Geo. II, ch. 25, § 2, and the Penal Servitude Acts, a person convicted of perjury may be sentenced to penal servitude "over and besides such punishment as shall be adjudged to be inflicted on such person agreeable to the laws now in being." Held, that a sentence of penal servitude may be inflicted for perjury without any other punishment.

Plaintiff in error was charged in the first count of the indictment with perjury in a trial at Westminster, and in the second count with perjury before a commissioner in London, the same false statement being charged in both counts. He was tried in the Court of Queen's Bench at bar, convicted on both counts, and sentenced on the first count to seven years' penal servitude, and on the second count to a further term of seven years' penal servitude, to commence immediately on the expiration of the first term. A writ of error having been brought, held, by tho Court of Appeal, that the sentences were warranted by law.

WRIT

RIT of error on the judgment of the Court of Queen's Bench, dated the 28th February, 1874, after a trial at bar, sentencing the plaintiff in error to two consecutive terms of seven years' penal servitude each. The indictment was for perjury, and contained two counts. The first count charged that the plaintiff in error had committed perjury by falsely swearing that he was Roger Tichborne in an action of ejectment (Tichborne v. Lushington and others) tried before Bovill, C. J., and a special jury in the Court of Common Pleas at Westminster. The second count charged that the plaintiff in error had committed perjury, also by swearing that he was Roger Tichborne, in an affidavit sworn before a commissioner appointed to administer oaths in chancery in the city of London.

There were other assignments of perjury in the indictment, but they are not material to the present report.

The plaintiff in error was tried at bar in the Court of Queen's Bench before Cockburn, C. J., and Mellor and Lush, JJ., and a special jury. On 28th Feb. 1874, the jury found him guilty on both counts, whereupon sentence was passed by Mellor, J., as follows: "The sentence of the court is that for the perjury alleged in the first count of this indictment, upon which you have been convicted, you be kept in penal servitude for seven years; and that for the perjury alleged in the second count, of which you have also been convicted, you be kept in penal servitude for the further term of seven years, to commence immediately upon the expiration of the term of penal servitude assigned to you in respect of your conviction upon the first count of the indictment." Judgment was entered on the record in the following terms: "The jurors, on their oaths, say that the said Castro, etc., is guilty of the premises above charged in and by both the said counts. Whereupon all and singular the premises being seen and understood by the court, it is considered, adjudged, and ordered that he, the said Castro, alias Orton, etc., for the offense charged in and by the first count of the indictment, be kept in penal servitude for the term of seven years now next ensuing; and that for and in respect of the offense charged in and by the second count of the indictment, he be kept in penal servitude for the further term of seven years, to commence immediately upon the expiration of the said term of penal servitude for his offense in the first count charged; and he is now committed into the custody of the keeper of the jail of Newgate, to be by him kept in safe custody in execution of this judgment."

The following grounds of error were assigned: (1) That the alleged perjuries constituted one offense only; (2) That the second count did not disclose a separate perjury from that disclosed in the first count; (3) That the offense in general being the same could not be treated as several offenses in the same indictment; (4) That without statutory provision several distinct offenses could not be charged in the same indictment; (5) That two distinct and several indictablo offenses could not be tried collectively; (6) That without statutory provision there cannot be two judgments on one indictment; (7) That on one indictment the maximum penalty assigned by statute cannot be cumulatively exceeded; (8) That on one indictment without statutory provision a sentence of penal servitude or imprisonment cannot be made to begin and to run from a future day; (9) That penal servitude as a punishment for perjury is additional only.

Benjamin, Q. C., and Atherly Jones (Hedderwick and Russell Spratt with them), for the plaintiff in error, cited Reg. v. Lundgrun, Court Cr. Ct. Sess. Papers, vol. 79, pp. 336, 353, 359; People ex rel. Tweed v. Liscomb, 60 N. Y. 559.

The Attorney-General, Sir Henry James, Q. C. (with him the Solicitor-General, Sir F. Herschell, Q. C., Poland and A. L. Smith), for the Crown, cited Rex v. Wilkes, 4 Burr. 2527.

In addition to the authorities mentioned above the following were referred to and commented on in the course of the argument: O'Connell v. The Queen, 11 Cl. & F. 155; Rex v. Rhenwick Williams, 1 Leach's C. C. 529; Rex v. Robinson, 1 Moody's C. C. 413; Gregory v. The Queen, 15 Q. B. 974; Rex v. Cutbush, 10 Cox's C. C. 489; L. Rep., 2 Q. B. 379; Campbell and Haynes v. The Queen, 1 Cox's C. C. 269; Rex v. Heywood, L. & C. 451; Ryalls v. The Queen, 11 Q. B. 781; Rex v. Burch, 4 F. & F. 407; Rex v. Galloway, 1 Moody's C. C. 234; Rex v. Benfield, 2 Burr. 980; Rex v. Jones, 2 Campb. 130; Rex v. Clendon, 2 Strange, 870; Rex v. Roberts, Car

thew, 226; Rex v. Johnson, 3 M. & S. 539; Rex v. Powell, 2 B. & Ad. 75.

JAMES, L. J. I am of opinion that this writ of error was improvidently issued. The question seems tɔ me (subject to the one point as to the American decision, People v. Liscomb, ubi sup., with which I will deal presently) to be settled by a current of authorities, and a course of practice which are not open to question; and I think that the rule is not subject to the supposed limitation or condition which has been contended for. The law of this country is and always has been that several misdemeanors may be joined in several counts in one indictment, but each charge is, in point of law, a distinct indictment, on which the defendant may be convicted or acquitted. It is true that a practice has prevailed in cases of felony, where the judges thought it not right in capital cases (when almost every felony was capital) that charges should be joined of quashing the indictment, or putting the prosecutor to his election upon which charge he would proceed, for they thought it desirable that a man should not be tried for more than one felony at one time. But no such practice has ever prevailed as to trials for misdemeanors, though in a proper case, if the judge saw that substantial injustice would be done by compelling the prisoner to meet different charges at the same time, he would have power to put the prosecutor to his election upon which count he would proceed; but that is a mere exercise of discretion, and the question how much discretion ought to be exercised is not one for a court of error. To my mind there is no reasonable distinction between trial and conviction on several charges contained in different counts in one indictment, and several separate trials for the same charges charged in different indictments. In Rex v. Wilkes, 4 Burr. at p. 2577, it was distinctly held by the House of Lords (who were advised by all the judges), as an unqualified proposition, that for several misdemeanors separato sentences could be passed, one to take effect after the expiration of the other. That is the law thero laid down, which from that time to this has been unquestioned, and it is too late now to attempt to dispute the propriety of the law so laid down. That law is not questioned in the case in the State of New York (People v. Liscomb, ubi sup.), on the authority of which we are told the late attorney-general gave his fiat for this writ of error. There it was laid down that the law does not permit several sentences exceeding in the aggregate the amount of punishment prescribed by law as the extreme limit of punishment for a single misdemeanor, to be inflicted in the case of a conviction for several misdemeanors charged in different counts in the same indictment. It is conceded that the law is not so laid down in any English book. Then, must we follow that decision? I always have felt great respect for the courts in America, and for their decisions, but with reference to this question confess I am startled at the way in which the judges dealt with it. They say that no case in their own courts has laid down that cumulative sentences can be imposed on a conviction for several offenses under one indictment, and that this view is in accordance with the English common law of 1775. They say that they cannot accept any later decision of an English court which is inconsistent with their own practice. That is the ground of their decision, and this present case was cited to them, and they disregarded it. I think that judgment is not binding on us; it is true it was a decision of a court of appeal, but we cannot measure the judgment with reference to that fact or to the number of judges who took part in the decision. We must look upon their judgments merely as the opinions of eminent and learned men. Then, what is the principle upon which that decision rests? I have asked in vain and am unable to discover any. The result of what