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?"

"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

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. Wo 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 per son 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 the Court of Appeal, that the sentences were warranted by law.

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

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 to 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 I 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

is said that on other trials which have been referred to I took another view, and gave a short sentence of im prisonment in addition to a term of penal servitude, but that was only by way of precaution, and is no authority to the contrary of what we are now deciding. It is obvious that the judge has power to add a previous sentence of imprisonment to a sentence of penal servitude, but this does not show that he has not power to omit such previous sentence. According to our unanimous construction it is an enabling section. Then there is the main objection. It is argued that there were not two offenses. It is not necessary to consider what the law is with regard to two perjuries taking place on one trial. Here there were two absolutely distinct and separate offenses. It is said that because they are charged in the same indictment they are only one offense; but I think that during the last three hundred years the contrary has been the law, and it has often been so ruled, and it seems to me that separate counts are equivalent to separate indictments. Then it is said that the counts do not end "against tho form of the statute," otc., if the offense is the result of a statute, that must be put in; otherwise it need not. Then, can the punishment for the second offense be postponed until after the first punishment is over? This has been decided by the House of Lords in Wilkes' case. A specific question was there put to the judges by the House of Lords in these words: "Whether a judgment of imprisonment against a defendant, to commence from and after the determination of an imprisonment to which he was before sentenced for another offense, is good in law?" There was no reference there to one of several indictments, and the question was answered in terms by the judges: "That a judgment of imprisonment against a defendant, to commence from and after the determination of an imprisonment to which he was before sentenced for another offense, is good in law." 4 Burr. at p. 2579; 19 Howell's State Trials, 1127-1136. That question and answer are entirely irrespective of whether the offenses were included in one indictment or two, and the law has been so interpreted ever since. The question of the House of Lords in that case was whether the court could postpone the commencement of the second sentence until the expiration of the first. The judges gave one limitation, "that the punishment shall take place before a total dismission of the party; a punishment shall not hang over a man's head when he has once been discharged." 19 Howell's State Trials, 1133. They seemed to consider it not right to postpone the commencement of the second term of punishment to a period later than the prisoner's dismission from the first. But then they continue, "But whilst he remains under a state of punishment, whilst he is suffering one part of his punishment, he is very properly the object of a different kind of punishment to take place during the continuance of the former, or immediately after the end of it." Id.; Rex v. Williams, Gregory v. The Queen, and Rex v. Robinson (ubi sup.) are all to the same effect. Mr. Benjamin cited 7 and 8 Geo. IV, ch. 28, § 10, and said that because that provision was required for cases of felony, something of the kind is also required for cases of misdemeanor. That section was passed after the answer of the judges in Wilkes' case had been given, as Blackburn, J., says in Rex v. Cutbush, L. R., 2 Q. B. at p. 381, "to give the courts the same power in cases of felony as they had at common law in misdemeanors." Therefore this argument is turned against Mr. Benjamin by this opinion of Blackburn, J. Mr. Benjamin says that this rule applies only where the defendant is in prison; but he is really in prison when the sentence is passed; the sentence always begins from a date prior to the time at which it is passed. What Blackburn, J., says shows that the law is the same as to felony and misdemeanor, and that is a strong authority against the view adopted by the

American judges. It is said that by statute three felonies are expressly allowed to be joined in cases of embezzlement. But that enactment relates to procedure, not to punishment, and it only took away the power to quash the indictment for misjoinder, or put the prosecutor to his election in cases to which it applies. Then there is the American decision, People v. Liscomb (ubi sup.). I am always anxious to hear what has been decided by the courts and judges in America, and what views they have taken on any points coming before us; but here the proposition seems to be that if one sentence follows another the two together shall not exceed the extreme amount which could have been awarded for one of the offenses. With deference, and with candor, I confess that I can see no reason in form or in substance for the conclusion arrived at in that case; it seems to me to be only a judicial declaration that it is so. The question is dealt with by Patteson, J., in O'Connell v. The Queen, 11 Cl. & F. at p. 261, and what he says there shows that it was his opinion that where the commencement of the second sentence is posponed till the conclusion of the first, it is no objection that the aggregate exceeds the maximum which could be awarded for one offense. This seems to me to be an irresistible inference from the language used. In Rex v. Robinson (ubi sup.), while deciding that a sentence of two years' imprisonment was incorrect, the judges said "that there should have been consecutive judgments of one year's imprisonment each." It is true that it is not a decision, but it shows very clearly what the opinion of the judges on this point was, and what Blackburn, J., said in Rex v. Cutbush (ubi sup.) is also a strong authority to the same effect. I am therefore of opinion that this is a perfectly clear case, and that the sentence imposed was warranted by law. Judgment affirmed

NATIONAL EXCHANGE BANK V. HILLS.

A State statute, independent of and designed as a substitute for all other provisions for taxation, which permits any debtor, assessed upon personal property, to deduct the amount of his debts from the valuation of all his personal property, including money capital, except bank shares, is wholly unconstitutional and invalid as to National bank shares, and affords no authority for making any assessment upon such shares; and an injunction to restrain the enforcement of such tax will issue at the suit of a bank the shares of whose capital are thus illegally assessed against the shareholders.

NUIT to restrain the collection of a tax against shareholders. The opinion states the case. Matthew Hale, for complainant.

R. W. Peckham, for defendant.

WALLACE, J. The complainant has filed its bill in equity to enjoin the collection of a tax assessed in 1879 against its shareholders by the board of assessors of the city of Albany, the defendants being the officers of the city charged with the collection of taxes.

The bill proceeds upon the theory, first, that the assessment against the shareholders is void, because there was no legal authority for making any assessment; second, if not void, for want of original authority, it was based upon a rule of unequal valuation of different classes of property, intentionally adopted by the assessors in order to discriminate unjustly against shareholders of National banks, and was excessive, and as to the excess the collection of the tax should be restrained.

Both of these theories are grounded on that section

of the act of Congress relating to National Banking Associations, which restricts taxation of shares in such associations imposed by the authority of the State within which the association is located, by providing "that the taxation shall not be at a greater rate than is assessed upon other money capital in the hands of individual citizens of such States."

The assessment complained of was made under color of an act of the legislature of this State, passed April 23, 1866, entitled "An act authorizing the taxation of banks and surplus funds of savings banks." This act, as construed by the highest court of the State, in view of previous legislation and upon consideration of the various provisions and directions of the act itself, established a system of taxation for bank shares "peculiar to itself and independent of the general system of taxation in existence in the State," and upon this ground it was decided by the Court of Appeals (Dolan v. People, 36 N. Y. 59; Thomp. N. B. Cas. 684), that a bank shareholder, who had been assessed upon the value of his shares, was not entitled to any deduction on account of his debts, although the general laws of the State and the local law relating to assessments in the city of Albany contained provisions whereby in the assessment of personal property a deduction should be made for the debts owing by the person assessed.

So far as this act contravenes the law of Congress by imposing a tax upon shares of National Banking Associations, at a greater rate than is assessed upon other moneyed capital in the hands of individuals, concededly it cannot stand, but the point in controversy is whether an assessment made under the act is void for want of power in the assessors to make any assessment, or is only erroneous when made without granting the deductions allowed by the general laws of the State. If the assessors have no power to make a valid assessment of the shares eo nomine, or against the owners for the value of their shares, the whole foundation of the taxation fails. On the other hand, if the assessors have authority to assess under the statuto in question or under the other statutes of the State, then the inquiry arises, whether the assessment is erroneous, because the proper deductions were denied, or because a rule of valuation which discriminated unfairly against the stockholders was adopted; and this being so, whether there is any remedy except in a direct proceeding to review the assessment. Obviously if the first theory of the complainant is sound, it is of no importance whether the shareholders of the complainant were, in fact, owing debts which should have been deducted from tho assessment or not, because there was no jurisdiction for any action on the part of the

assessors.

In the view of the case which I am constrained to adopt, it will not be necessary to examine the second theory which has been alluded to, a theory which, upon the facts, involves several difficult and doubtful questions of law; but I am of the opinion that the only authority for the assessment is to be found in the statute of 1866, and that act, as respects the taxation of shares in National banking associations, is radically vicious and can have no operation. This conclusion is predicated upon the decision in Dolan v. People, and upon People v. Weaver, 100 U. S. 539.

The construction given to the act in Dolan v. The People is explicitly to the effect that the act is intended to establish a system of taxation for bank capital peculiar to itself, and independent of the general system of taxation in existence in the State. It is there declared that "the act was intended as a substitute for the then existing mode of assessing and taxing that portion of the property of the State invested in the capital of these moneyed corporations." If this is the correct exposition of the statutory intent, it cannot be questioned that the act must stand or fall upon its own provisions, and cannot be sustained by

treating it as a part of the general system of taxation, and reading it as though it contained these provisions found in other parts of the system which would secure to the holder of bank shares the same exemptions and privileges allowed to the holders of other money-capital. Accepting this as the true construction of the law, it was held by the Supreme Court of the United States, in People v. Weaver, that the operation of the laws to impose upon a citizen of the State, whose money was invested in bank shares, a greater rate of taxation than was imposed upon those whose capital was otherwise invested, in violation of the prohibition of the law of Congress. It was only necessary to decide in the particular case that the person assessed was entitled to the deduction from his assessment on account of his debts, which he claimed, and the question was not before the court whether or not the whole assessment was void; but the opinion proceeds upon the ground, and expressly declares that the statute of the State is in conflict with the act of Congress, because it does not permit such deduction on account of debts.

It would seem that these discussions are conclusive to the effect that the act of 1876 is to be regarded as though it in terms declared not only that the shares in National banking associations should be taxed at a rate, and upon an assessment prohibited by the act of Congress, but also as though it declared that no other tax should be imposed on account of such shares, because being a substitute for the existing provisions of the general laws as respects the taxation of capital represented by bank shares, it is by implication a repeal of those provisions.

The decisions of the courts of a State in the construction of a State statute, where no Federal question is involved, aro conclusivo upon the courts of the United States, and the construction which was given by tho Court of Appeals to this statute has been recognized as controlling and final by the Supreme Court of the United States.

But it is urged on behalf of the defendants that the Court of Appeals may reconsider its views in the light of the decision of the Supreme Court, and the consequences which ensue from that decision. Undoubtedly these consequences may be serious, as shareholders of National banks may in some instances escape the payment of taxes upon their personal property to the extent such property is invested in bank shares. This consideration, as well as thoso graver ones which lead courts to seek for some construction of a law, which will uphold it if possible, would appeal with great force to any tribunal before which the question originally presented might come. But this court must take the law as it finds it, and must accept tho decision of the Court of Appeals as authoritativo. This court cannot substitute in the place of that decision its own judgment as to what the Court of Appeals might possibly decide upon a reconsideration of the questions involved.

Besides the decision of tho Court of Appeals, reference should be made to the act of the Legislature of June 26, 1880, as a legislativo exposition of the act of 1866. The later act is clearly intended as a substitute for the act of 1866, and does not vary essentially in its provisions from the earlier act except that it expressly declares that in the assessment of bank shares each stockholder shall be allowed all the deductions and exemptions allowed by law, in assessing the value of other taxable personal property owned by individual citizens of the State, and the assessment and taxation shall not bo at a greater rate than is made or assessed upon other moneyed capital in the hands of individual citizens of this State. This act was wholly unnecessary, if, as is contended for the defendants, the original act should be construed as though the provisions of the general laws relating to reductions were incorporated in it.