reasoning of those cases is based on familiar common law principles, which apply more strongly to provisions than to any other articles.

There is no doubt that modern ideas of trade have pratically abrogated some common law doctrines which are supposed to unduly hamper commerce. At the common law there is no doubt such transactions as were here contemplated, although confined to a single person, were indictable misdemeanors under the law applicable to forestalling and engrossing. Some of our states have abolished the old statutes which were adopted on this subject, and which were sometimes regarded as embodying the whole law of such cases. Where this has been done, as in New York, the statutes have replaced them by restraints on combinations for that purpose, leaving individual action free. In England there have been several statutes narrowing or repealing all of the ancient statutes, and more recently covering the whole ground. But so long as the early statutes only were repealed, it was considered that enough remained of the common law to furnish combinations to enhance the value of commodities. And when this doctrine became narrowed it seems to have been considered that such combinations to enhance the price of provisions remained under the ban. In Rex v. Waddington, 1 East, 143, and S. C. 1 East, 167, it was held the common law was still in force to punish engrossing the necessaries of life or provisions by single persons. The chief difficulty was in determining whether hops came within that rule, and it was held they did, and that the legislature only could change the law. The defendant was heavily fined. The case has been sharply criticised as not in harmony with modern political economy, and it no doubt goes beyond what would be considered proper among us. It has never, so far as the researches of Mr. Bishop have gone-and he seldom overlooked important cases-been judicially disproved, although statutes have been made to change the rule. See 1 Bish. Cr. L. §§ 527, 528, and notes to 6th ed. And he intimates that conspiracies for such purposes may perhaps be punished, even where the individual offence has been abolished. See, also, vol. 2, §§ 202, 206, 216, 220, 230, 231 and In Rex v. Hilbers, 2 Chitty, 163, it was held that there must be a combination of more than one person before an information will be granted for enhancing the price of necessaries. Mr. Russell gives it as his opinion that in our day single offenders would not be regarded as punishable unless their offence relates to provisions. 1 Russ. 170. But where there is a conspiracy, the law has been given a much wider application, and the case of Rex v. De Berenger, 3 M. & S. 67, has obtained celebrity from the high rank of the offenders who were convicted (and one of them at least, Lord Cochrane, unjustly) of conspiring to raise the price of stocks by false rumors. We have not referred to these cases, to assert the propriety of enforcing common law criminal penalties, contrary to the general understanding of the business community. While

these offences have never been abolished in this state by statute, and might theoretically be, therefore, within the possible range of our laws, there would be no toleration of their strict prosecution against single persons to the common law extent as crimes. But the general sentiment has not led to any change in legislation, as to the legal propriety of allowing every species of produce gambling, to be made susceptible of enforcement by contract. We must wilfully shut our eyes before we can fail to see that a combination between a man who furnishes money and dealers who manipulate the market, where the money invested is but a trifling percentage of the property to be handled, and where the only intent is to produce unnatural fluctuations in prices, is entirely outside the limits of buying and selling for honest trade purposes. It is the plainest and worst kind of produce gambling, and it is impossible for any but dangerous results to come from it.

We do not feel called upon to regard so much of the common law to be obsolete as treats these combinations as unlawful, whether they should now be held punishable as crimes or not. The statute of New York, which is universally conceded to be a limitation of common law offences, is referred to in the case in 68 N. Y., as rendering such conspiracies unlawful, and this had been previously held in People v. Fisher, 14 Wend. 9, where the subject is discussed at length. There may be difficulty in determining conduct as in violation of public policy, where it has not before been covered by statutes as precedents. But in the case before us the conduct of the parties comes within the undisputed censure of the law of the land, and we cannot serve the transaction without doing so on the ground that such dealings are so manifestly sanctioned by usage and public approval that it would be absurd to suppose the legislature, if attention were called to them, would not legalize them. We do not think public opinion has become so thoroughly demoralized; and until the law is changed we shall decline enforcing such contracts. If parties see fit to invest money in such ventures they must get it back by other than legal measures.

Reversed and new trial granted.

SUPREME COURT OF MINNESOTA.

THE STATE v. WILSON.

Criminal Law-Forgery-Attorney in fact. Where one signs a deed as attorney in fact, or agent for another, and it so appears on the face of the instrument, and such attorney or agent has in fact no authority to execute such inštrument, it is not a forgery.

Appeal from Hennepin County.

The defendant was indicted, under Sec. 2, Chap. 96, Gen. Stat., for uttering and publishing as true a false deed, knowing the same to be false, with intent to injure and defraud. The indictment sets out in hæc verba the alleged false deed, which purports on its face to be a deed of

conveyance of land by one James D. Hoitt to Joseph F. Miller, and to be signed by H. H. Wilson, per procuration of said Hoitt, the form of the signature being "James D. Hoitt, by H. H. Wilson, his attorney in fact." Upon the trial of the cause it appeared that the defendant signed the deed in question, claiming the authority so to do under a power of attorney from Hoitt. The falsity of the deed claimed by the State consisted not in any simulation or imitation of the signature of Hoitt, or in putting forth the instrument with the false pretense that the signature was the personal action of Hoitt, but in the false assertion contained in the instrument that he, the signer thereof, was authorized so to make and sign it in behalf of Hoitt, when in fact he had no such authority. The appeal is from a judgment of conviction. MITCHELL, J.

The question is whether an instrument, which appears on its face to have been executed by an agent authorized, while in truth he was not so, is a false instrument: or, to state the proposition in another form, when an instrument is really, in all its parts, written or signed by the individual by whom it purports to be written and signed, and the falsity consists not in the simulation or counterfeiting of the act of another, but in the false assertion which the instrument contains that he, the writer and signer thereof, is authorized so to make and sign it in behalf of another, as it purports to be, is it a false instrument within the meaning of the statute, and, upon negotiation of such instrument by the person who has so prepared it, is that person guilty of uttering a false instrument? In order to determine what is a false

instrument we must resort to the common law.

According to the ordinary and proper meaning According to the ordinary and proper meaning of the words "false or forged," as applied to a note or other instrument in writing, we always understand one that is counterfeit and not genuine-an instrument by which one has attempted to imitate another's personal act, and by means of such imitation to cheat and defraud, and not the doing of something in the name of another which does not profess to be the other's personal act, but that if the doer thereof, who claims by the act itself to be authorized to obligate the individual for whom he assumes to act. This definition of "false" and "forged" is abundantly sustained by authority. State v. Young, 46 N. H., 266; Rex v. Arscott, 6 C. & P., 408; Regina v. White, 2 C. & K., 404 (2 Cox C. C., 210); Heilbonn's case, 1 Park. Cr. Cas., 429; Commonwealth v. Baldwin, 11 Gray, 197; Commonwealth v. Foster, 114 Mass., 311; Mann v. People, 15 Hun., 155. Now, in the case under consideration, the deea does not purport to be the personal act of Hoitt. The instrument, on its face, purports to be defendant's own act, but one which he was authorized to do for and in the name of Hoitt. The reader of the deed could not misunderstand it. By its terms the defendant declares that he made the writing, but that he so made it for Hoitt. The

falsity, if any, consists in the claim of authority from Hoitt. The law, as we have seen, is well settled that if a person sign an instrument with his own name per procuration of the party whom he intends or pretends to represent, it is no forgery, it is no false making of the instrument, but merely a false assumption of authority. This deed, therefore, is not a false deed, and consequently in uttering or publishing it defendant was not guilty of uttering or publishing a false deed. If defendant made false and fraudulent claim of authority to execute this deed, and by means thereof obtained money or property from another, he might be guilty of obtaining money or property under false pretenses, but not of the crime with which he is charged in this indictment. We therefore are of the opinion that the court below erred in not granting a dismissal of the action upon motion of defendant when the State rested. The defendant was, upon the evidence, clearly entitled to a dismissal of the action, or to a verdict of acquittal under the direction of the court. Reversed and remanded.

A NEGLECTED DISTRICT.

In a recent trial in the Criminal Court of this District, the fact was disclosed that there was no statute operating here fixing a penalty for the crime of incest. The case was an outrageous one, such as the authorities could not afford to let go without an effort to punish; and so the government was driven to the necessity of bringing in an indictment charging rape, which, of course, required proof of force, or something tantamount thereto. The jury, not being able to agree as to the sufficiency of the proof on the question of force, were discharged.

Ordinarily, when a Legislature fails to provide punishment, the presumption is that they did not intend the crime to be punished; but we cannot visit such a presumption as this on the Congress of the United States. This is, of course, an oversight; but a very great one, and should be speedily provided

for.

The misfortune this district lies under isthat the attention of Congress is absorbed by such commanding National questions that they lose sight of small matters. Having to legislate for all the States and the District as well, they do not reflect that the States have their own Legislatures to provide for home affairs, but that the district has no such pro

tection.

It is not intended here to deny that the District receives a goodly share of Congressional attention; but this is not always directed in the best way.

The laws of this District, as to Courts of

This action was instituted for the purpose of obtaining an injunction against defendants, restraining them from levying and collecting extra taxes assessed upon the lands of these plaintiffs, for the construction of the Biddinger Free Turnpike. The plaintiffs allege that the preliminary steps were not properly taken; that the requisite majority of property-holders' names were not signed to the application, and, further, although their lands lie within one mile of said road, yet, that within two miles of the turnpike there is an unimproved country-road not connected. They further allege that the turnpike is of no benefit to them or to their lands. The defendants allege that all the proceedings for the construction of this road were regular; that the lands of the plaintiffs, which are assessed, lie within one mile thereof, and are within half the distance of any unimproved country-road, and are liable to said extra tax levied upon their land. To this answer a demurrer was interposed by plaintiffs, and the court below found the demurrer well taken, and the defendants not desiring to amend, a judgment that they be perpetually enjoined from collecting said tax was entered, from which they appealed to this

court.

The case is submitted here on the same pleadings, on the demurrer to the answer of the defendants.

It is argued by counsel for plaintiffs, that the act under which the turnpike was constructed is unconstitutional in that a tax is imposed upon their property, when no benefit is conferred. That the act should have been so framed, as to provide for taxing only such land as might be benefitted by the road, whereas it provided for taxing all land to the distance of one mile on either side of said pike without regard to benefits. This view seems to have been entertained of the act by the court below. The case is not here for review upon the petition in error and it is unnecessary for this court to say whether the court below took a proper view of the act under which this turnpike was constructed or not. Another view may be taken quite satisfactory to this court, that properly arises under the demurrer touching the constitutionality of the act. It is a well settled rule of practice that a demurrer, no matter by whom filed, searches the entire record, and that leads us to an examination of the petition as well as the answer. It is averred in the petition among other things" that there runs parallel with this free turnpike, a country-road unimproved, called the Biddinger road,' that it is unconnected with the free turnpike and within two miles of it." In the answer there is a substantial admission of this averment of the petition, for the defendants

among other things aver "that the lands of the plaintiffs are within one-half of the distance of any unimproved country-road and within one mile of said free turnpike road." Now the section of the act under which the extra tax was levied, reads as follows, Vol. 73, O. L., page 96, section 8: "Extra taxes when levied as herein before provided, shall be on all real and personal property within one mile on cach side of the free turnpike road, except where any such roads, or any toll road, or unimproved State or County road, being unconnected with the same, (free turnpike) shall lie, be or run upon either side of such proposed road within less than two miles, then the taxes shall only be levied upon such lands and personal property, as lie one-half the distance of such roads."

Thus it will be observed that if no unimproved, unconnected country-road run or be within two miles of the free turnpike built, or proposed to be built, then all lands and personal property to the distance of one mile upon either side thereof shall be taxed to pay for the saine. If, however, such unimproved, unconnected countryroad does exist within two miles then there is a discrimination in favor of all property lying beyond one-half the distance of such country road, and yet within one mile of the free turnpike, that is to say that only such real and personal property situate and being within half the distance between such county and free turnpike is subject to the extra tax. Thus property upon one side of the turnpike may be liable to the tax for a distance back of only a few hundred feet, while at other points where no such country-road exists, it is liable to the full distance of one mile, the uniform operation of the law and of the extra tax thus being broken.

The Supreme Court has recently passed upon this same act in the case of Bowles v. The State, to be reported in 36 O. S. Bowles, as is well known, was convicted in this County of forging bonds directed to be issued to pay for this same free turnpike road. What the record in that case showed further than appears in the decision we do not know, whether if there was any evidence showing that there was an unimproved unconnected county road within two miles of this free turnpike road at any point thercon, the report of that case does not show. It would seem that the unconstitutionality of the act was claimed, for the reason that this free turnpike was crossed by another free turnpike, and that therefore, only such land within a mile of such crossing benefitted by the proposed turnpike road should be taxed, or rather should be taxed only in proportion to the benefit derived therefrom. This discrimination it was claimed, rendered the act un

constitutional.

The Court after deciding that the Legislature in the exercise of the general taxing power as distinguished from the power of local assessment, may create a special taxing district without regard to municipal or political sub-divisions of the State, for defraying the expenses of constructing and maintaining public roads then proceed to say inferentially that if the record did show the existence of such other free turnpike, and that it crossed the turnpike in question, the act and its operation would be in that respect unconstitutional. We quote from the opinion: All property within the taxing district must be taxed by a uniform rule, according to its true value in money." Under the statute it is plain, that property within the taxing district and within a mile of the crossing of another free turnpike road, is not taxable by the same rule that applies to other property within the district. Under the statute now being considered,

66

the record does not show whether or not the taxes levied for the construction of the Biddinger road improvement would be uniform upon all the real and personal property within the taxing district, viz: within one mile on each side of the Biddinger road. learly the Biddinger road improvement did not cross any other free turnpike road, the rule of uniformity required by the Constitution is not violated. We do not know, and cannot assume that there was any such crossing." And th Court then proceed to say that an act will not be declared absolutely void, if under certain circumstances which may or may not exist, the operation of the statute would not violate the principle of uniformity required by the Constitution. Cooley's Const. Lim. Sect. 178.

Now, if for the reason suggested, this act would have beeu unconstitutional, unquestionably had the record shown the existence of such a county road as is admitted by the answer in this case, for that reason must it also have been declared unconstitutional, the uniformity required

by Section 2, of Article 12, of the Constitution being disregarded in both cases. The record in the Bowles case not showing that another turnpike crossed the one in question, the Court had the right to and did presume that the Commissioners had proceeded according to law; that the extra tax was properly levied for a distance of one mile upon either side, upon all real and personal property and that another free turnpike did not cross the road in question; thus the act having a Constitutional operationno discrimination being made in favor of any property within the mile on either side.

It appearing therefore upon a fair reading of the petition and answer in this case that an unimproved and unconnected county road lies within two miles of this free turnpike road, all property, real and personal, is not liable to be and we presume has not been taxed according to a uniform rule within the taxing district, and for that reason the operation of the Statute is in contravention of the uniform rule provided by Section 2, of Article 12, of the Constitution, and so far as this case is concerned, void. The demurrer is sustained and unless defendants desire leave to amend, denying that such a county road does in fact exist, a decree will be entered perpetually enjoining the collection of the extra tax against the plaintifr.

Cox and Longworth J. J., concurred.

ABSTRACT OF RECENT DECISIONS.

ACCOUNT.

Statute of Limitations does not run against each Item of Mutual Accounts.—Where there is an open, running, mutual account between two persons, each person does not bave a separate cause of action for each separate item of the accounts; but only the person in whose favor there is a balance due on the account has a cause of action for such balance against the other. In such a case, the Statute of Limitations does not run against each item separately; but only against the balance due; and it will commence to run only from the time of making the last item rightfully credited, to the party against whom the balance is due; each item thus credited to the party against whom the balance is due, is a payinent or part payment, not of any particular item agaiust him, but of the balance due against him; and is, in one sense, a payment or part payment of every item rightfully charged against him in the whole account: Waffle v. Short, 25 kaus.

ACTION.

· Payee may bring suit in his own name on Accepted Order. W. gave a writer order to the plaintiff for all that was due him, on the defendants, and it was accepted by them, by writing their names across the same. Held on denurrer, that the payee could maintain an action in his own naine, and recover of defendants whatever was due from then to W.: Bacon v. Bates, 53 Vt.

The giving of the order by W.; receiving and presenting it for acceptance by the plaintiff, and accepting it by the defendants, under the circumstances, completed a novation: Id.

When an order is given by one party, received and presented by another, and accepted by a third, the agreeinent of each party is a sufficient consideration for the agreement of every other party: Id.

The negotiability of the order was restricted, being for an uncertain amount; but this did not render it invalid, nor offect the payee's right to enforce the same:

CONFLICT OF LAWS.

Id.

Note made by Husband and Wife in another State.-A. and B., his wile, made and delivered their negotiable promissory note to the plaintiff. The note was made in Massachusetts, where the parties resided, and was valid there. Suit on this note was brought in Rhode Island, the writ being served, on the husband by attaching his interest in the reality of his wife, on the wife by attaching her realty, and on both, by attaching the wife's share of an intestate estate in the hands of an administrator. Pending the suit, the husband was adjudged a bankrupt and subsequently died. Held, that the wife being legally incapable in Rhode Island to make a promissory note, the action against her could not be maintained. Held, further, that as in Rhode Island the husband must be made co-defendant with the wife, and there was in

this case no service of the writ on the husband, the artion was fatally defective: Hayden ". Stone, 13 R. 1.

CRIMINAL LAW.

Confession.-Confession in a legal sense is, in effect, an admission of something which proves, or tends to prove, that the party making it was himself connected with the alleged crime, in a criminal or questionable manner; hence, adinissions which tend to criminate a third party, are not within the rules of law, that exclude confessions, induced by promises and hope of favor: State v. Carr, 53 Vt.

LENGTHY PLEAS

Eminent pleaders have always observed one rule which is inculcated by all writers upon oratory in general, namely, "say what you have to say, and then sit down." In this province, as elsewhere, no doubt, garrulous, voluble fawyers abound; not, we should say, in the higher ranks of the profession, but among the inferior members whose appearance in court is rather infrequent. Some lawyers imagine that an argument to be powerful must be lengthy, and a greater mistake was never made. Tacitus in his De Oratore, refers to a practice which obtained under the Roman emperors, of limiting the speeches of advocates to two hour-glasses in certain cases, a custom which now prevails in many courts, and notably in the New York Court of Appeals, where the addresses of counsel are limited to one hour. It is quite possible that such rules may at times work injustice, but a court should at least be allowed to exercise a certain discretion to limit the tedious harangues of long-winded practitioners. When one hears that a Montreal lawyer, whose most famous achievement is a speech of two hours on a motion in the Circuit Court, lately blocked the business of the Court of Appeals by speaking for over a day and a half in a comparatively unimportant case, one is inclined to censure the tribunal which permitted such an outrage quite as much as the lawyer who perpetrated it. With printed evidence and a well prepared factum there can possibly be no necessity for any such infliction; and if the court had peremptorily ordered the orator to desist, it would have given great satisfaction to those of the profession whose business was delayed in consequence, and have proved a salutary warning to others disposed to lengthy speeches. The fact that such an occurrence is the exception at the Montreal bar is our excuse for referring to it.—Montreal Star.

SUPREME COURT RECORD.

[New cases filed since our last report, up to Sept. 20, 1881.]

1170. George W. Spangler et al v. Elvira Dukes. Error to the District Court of Wood County. A. Blackford and J. H. Reid, attorneys for plaintiffs.

1171. Francis Dawson et al v. Milton Bartholomew. Error to the District Court of Morrow County. H. L. Beebe for plaintiffs; T. E. Duncan for defendant.

1172. John Johnson v. Trustees of Otterbein University. Error to the District Court of Wood County. J. A. Shannon for plaintiff.

1173. Elmira Hershey, admr'x &c. v. Rebecca_Bair. Error to the District Court of Stark County. A. C. Hiner and Lynch, Day & Lynch for plaintiff; Frease & Case for defendant.

1174. Andrew Brill v. Singer Mf'g Co. Error to the District Court of Hamilton County. Tilden, Buchwalter & Campbell for plaintiff; King, Thompson & Maxwell for defendant.

1175. John W. L. Brown et ux v. North-Western Life Insurance Co. Error to the District Court of Washington County. R. K. Shaw for plaintiff; Ewart, Sibley & Ewart for defendant.

1176. Patrick Brannan et al v. John B. Purcell et al. Error o the District Court of Hamilton County. Healy & Brannon, King, Thompson & Maxwell, Wilby & Wald and Stallo, Kittridge & Shoemaker for plaintiffs; Hoadley, Johnson & Colston and Mannix & Cosgrove for defendants.

1177. Joseph Coursel v. C. H. & D. R. R. Co. Error to the District Court of Hamilton County. Jordan & Bettman for plaintiff; Matthews, Ramsey & Matthews for defendant.