fendant's colliery. In 1868 plaintiff named purchased the premises through which this stream ran and erected a house thereon. The stream was one of pure water running from a spring above the grounds. This stream constituted one of the inducements to plaintiff for purchasing, and the improvements on the place made by him, which included a fish pond, water pipes and dam for forcing the water into his house, cost about $80,000. Soon after the improvements were completed the defendants opened a colliery about three miles above plaintiff's grounds and commenced pumping the water therefrom, which water found its way without being directed by defendants into the stream in question. This water so polluted the stream as to render it unfit for drinking or washing and so injurious to the fish in plaintiff's ponds that they died, and so as to cause injury or destruction to the dam and pipes put down by plaintiffs. On the first trial of the case plaintiffs were nonsuited, but the nonsuit was reversed on appeal (5 Nor. 401; see, also, 18 Alb. L. J., 162). From a judgment in favor of plaintiffs defendants took a writ of error. Other facts as disclosed by the opinion. A. T. McClintock, 1. J. Post and Samuel Dickson, for plaintiffs in error.

A. Ricketts, for defendants in error.

GORDON, J. The material points in this case have been most fully and carefully discussed in the opinion delivered by our late lamented brother Woodward in this same case, when here before, and which may now be found in 5 Nor. 401. As that opinion has been faithfully followed in the court below, we are relieved of any extended examination of the case as now presented. Whether or not the injury complained of resulted from the act of the defendant in pumping deleterious mine water into the Meadow Brook was fairly submitted to the jury, and that body found that that was the immediate cause of the injury. When, in 1868, Mrs. Sanderson purchased her property on Meadow Brook, she found the water of this stream pure and valuable for domestic purposes. Her right to have and use these waters as she found them is undoubted. This right, though of an incorporeal character, was as absolute as her right to the land through which they flowed. But that right has been destroyed, or its value seriously impaired, by the direct act of the defendant. As then it has been the cause of the injury, why should it not be held to an account therefor? The answer is twofold: (1) It is said this pollution of this brook results from the necessities of coal mining, and, as that is an industry important to the welfare of this Commonwealth, the right of the plaintiff must yield to it. But this argument is fallacious in this, the mining operations of the defendant do not involve the public welfare, but are conducted purely for the purposes of private gain. Incidentally all lawful industries result in the general good; they are, however, not the less instituted and conducted for private gain, and are used and enjoyed as private rights over which the public has no control. It follows that none of them, however important, can justly claim the right to take and use the property of the citizen without compensation.

(2) It is urged that the customary mode of disposing of water pumped from the mines in the Lackawanna and Wyoming coal regions has been to allow it to flow into the adjacent natural watercourses. Of this proof was offered, and that for the purpose of showing a general custom thus to use the rivers, creeks and sinaller streams of this part of the State, and, it may be added, so to destroy the rights of riparian owners. As a local custom or prescription, this has no application to the case in hand, for the colliery of the defendant appears to be the only one within the territory

drained by Meadow Brook, and the pollution of its waters has occurred since the plaintiff's purchase. As a general custom, it lacks the necessary age, for the beginning of deep coal mining in the regions above named is quite within the memory of men yet living. Wanting this it fails in a particular essential to the establishment of such a custom. Jones v. Wagner, 16 P. F. S. 429. But more fatal still to the defendant's pretension is the fact that the effort is thus to justify the disturbance of private property for the advancement of the private interests of the defendant corporation, and that, not under the plea of an ancient customary use, arising before the plaintiff acquired title, but of a general custom which would authorize the present injury or destruction of the rights of riparian owners. But a custom such as this would not only be unreasonable, but also unlawful, and therefore worthless. It is urged that mining cannot be carried on without this outflow of acidulous water, hence of necessity the neighboring streams must be polluted. This is true, and it is also true that coal mining would come to nothing without roads upon which to transport the coal after it is mined; therefore roads are necessary; but it does not follow that for such purpose the land of an adjacent owner may be taken, or his right of way incumbered, without compensation. If indeed the custom set up were to prevail, then, at least so far as coal mining companies are concerned, there would be an abrogation of the 8th section, art. 16 of the Constitution, which provides that "municipal and other corporations, invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured, or destroyed by the construction and enlargement of their works, highways, or improvements." Not only would we thus have a custom superior to the supreme law of the land, but one reaching even beyond the possible sovereignty of the State, in that it would empower private persons, for private purposes, to injure or destroy private property, and that without compensation. A custom such as this is radically bad, and cannot be sustained.

Judgment affirmed.

Paxson and Sterrett, JJ., dissent. Sharswood, C. J., and Green, J., absent.

FELONIES UNDER FEDERAL LAWS.

UNITED STATES CIRCUIT COURT, W. D. TENNESSEE. JANUARY 31, 1880.

UNITED STATES V. COPPERSMITH.

A defendant indicted for making counterfeit coin is entitled to only three peremptory challenges of jurors under section 819 of the Revised Statutes. The offense is not a felony under any existing act of Congress. All offenses against the United States being statutory, they are not felonies if the punishment be less than capital, unless they are by the statute so declared to be, either in express terms or by necessary implication. In the criminal jurisprudence of the Federal law there are three distinct classes of felonies, not capitally punished. 1. Where the offense is declared by statute, expressly or impliedly, to be a felony. 2. Where Congress does not define an offense, but simply punishes it by its common. law name, and at common law it is a felony. 3. Where Congress adopts a State law as to an offense and by that law it is a felony.

Congress has power to create felonies or reduce commonlaw felonies to misdemeanors, but such gradation is inapplicable to our system of jurisprudence; and in the present state of legislation, to declaro an offense a felony is brutum fulmen, except that it may incline the legislative mind to more severe punishment. In other respects it seems an advantage to the offender, for he then has ten challenges instead of three, and possibly may be entitled to be proceeded against only by indictment and not by information.

INDICTMENT for counterfeiting. The facts appear in the opinion.

W. W. Murray, district attorney, and J. B. Clough, assistant district attorney, for the United States.

George Gantt, for defendant.

HAMMOND. J. The defendant being on trial for counterfeiting the coin of the United States, has peremptorily challenged three of the jurors tendered to him, and claims the right to challenge another and any number to the extent of ten, under section 819 of the Revised Statutes. He insists that the offense of making counterfeit coin is a felony at common law and therefore a felony in the purview of that section; he also insists that being punishable by imprisoment at hard labor, which necessarily implies confinement in a penitentiary, it is a felony according to the ordinary acceptation of the term in American law; that Congress used the term in that sense in this statute, and did not intend to indicate capital offenses already provided for by the same section of the Revised Statutes.

Section 819, above referred to, is as follows: "When the offense charged is treason or a capital offense, the defendant shall be entitled to twenty and the United States to five peremptory challenges. On the trial of any other felony, the defendant shall be entitled to ten and the United States to three peremptory challenges; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges," etc.

It is apparent that it was here intended to designate by the term "any other felony," other offenses than capital offenses, for they are otherwise specially provided for by this section.

Prior to legislation by Congress this matter of peremptory challenges in the Federal courts was in some confusion until the Supreme Court declared that they might, by rule, adopt the State practice. United States v. Shackelford, 18 How. 588; United States v. Douglass, 2 Blatchf. 207; United States v. Reed, id. 435, 447, and note; United States v. Cottingham, id. 470; United States v. Tallman, 10 id. 21; United States v. Devlin, 6 id. 71.

When we could resort to the State practice, it was generally found that legislation had accurately regulated the right of challenge by distinctly classifying offenses with such statutory definitions as left no room for doubt. But since Congress has legislated we can no longer look to the State laws for guidance, nor to the common law, but only to the acts of Congress themselves, which unfortunately have only increased the confusion by the use of an indefinite term. I am not advised of any reported case construing this section, nor of the practice in regard to it, except that it is said at the bar that heretofore in this district, ten challenges have not been allowed in any case where the offense charged was not, by the statute creating it, declared to be a felony. The first act of Congress, passed March 3, 1865 (13 Stats. 500), after providing for treason and capital offenses, as is done by this section 819, provided that "on the trial of any other offense in which the right of peremptory challenge now exists, the defendant shall be entitled to ten and the United States to two peremptory challenges." The criticism of Judge Conkling, in the fifth edition of his Treatise, page 632, on this act, demonstrates how indefinite were the terms used, and he concludes that the section was nugatory as to all crimes except treason and capital offenses; because the right of peremptory challenge, he says, only exists in cases of felony, and now nothing is felony except capital offenses. In this criticism the learned district judge of Oregon seems to concur, for he also declares the section nugatory. United States v. Randall, 1 Deady, 524, 548. Yet, strange to say, the act of June 8, 1972 (17 Stats. 282), substitutes this word

felony for the phrase in the act of 1865 which was thus condemned because it limited the right of peremptory challenges to cases of felony and thereby left it impossible to determine under the act of 1865 to what cases it should apply. Perhaps a proper construction of the act of March 3, 1865, taken in connection with the law as it then stood under the decision in the case of United States v. Shackelford, supra, and the act of 1840, would have been to look to the State practice to determine in what cases the right of peremptory challenge "now exists," and to allow ten challenges in all such cases; for the State practice then furnished not only the rule as to number but the rule as to the kind of offense in which the right of peremptory challenge existed, as we have already seen. There would have been some certainty in this, but now there is no other course but to determine by the common law what Congress meant in this section of the Revised Statutes by the words " any other felony." If Congress uses a common-law term in defining a crime, or in any statute, we must look to the common law for a definition of the term used. 2 Abb. Prac. 171; Conk. Treatise, 178 (5th ed.); United States v. Palmer, 3 Wheat. 610; United States v. Wilson, Baldw. 78, 93; United States v. Barney, 5 Blatchf. 294, 296; United States v. Magill, 1 Wash. C. C. 463. The Massachusetts Code commissioners, many years ago, in enumerating felonies within the provisions of their Code, in a note, add that the meaning "of the word 'felony' (as by them defined), is limited to the use of the word in this Code, and is not to be confounded with the common-law signification of the same term, whatever that meaning may be, for it is a matter of no little difficulty to settle it." Report; Title Explanation of Terms cited 1 Hale's P. C. (A. D. 1847) 575, note.

The Supreme Court of Alabama said, in Harrison v. State, 55 Ala. 239, 241, that it is not easy to determine in all cases what are felonies and crimen falsi. "To predicate of an act,' says the Supreme Court of Ohio, "that it is felonious, is simply to assert a legal conclusion as to the quality of the act; and unless the act charged, of itself, imports a felony, it is not made so by the application of this epithet. Indeed, the term felony has no distinct and well-defined meaning applicable to our system of criminal jurisprudence. In England it has a well known and extensive signification, and comprises every species of crime which at common law worked a forfeiture of goods and lands. But under our Criminal Code, the word ‘felonious,' although occasionally used, expresses a signification no less vague and indefinite than the word 'criminal.'" Matthews v. State, 4 Ohio St. 539, 542. In the Constitution of Tennessee the words "criminal charge' are held to be synonymous with "crimes," which is said to mean, technically, "felonious" offenses. McGinnis v. State, 9 Humph. 43.

The term "felony " appears to have been long used to signify the degree or class of crime committed rather than the penal consequences of the forfeiture occasioued by the crime according to its original signification. 1 Archb. Cr. Pl. 1, note; 1 Russ. on Crimes, 43.

Capital punishment by no means enters into the true definition of felony. Strictly speaking the term comprised every species of crime which occasioned at common law the total forfeiture of either lands or goods, or both. That was the only test. Felonies by common law are such as either concern the taking away of life, or concern the taking away of goods, or concern the habitation, or concern the obstruction of the execution of justice in criminal and capital causes, as escapes, rescues, etc. 1 Hale's P. C. 411. These crimes were of such enormity that the common law punished them by forfeiture. 1. The offender's wife lost her dower. 2. His children became base and ignoble and his blood corrupted. 3. He forfeited his goods and chattels, lands and tenements.

The superadded punishment was either capital or otherwise according to the degree of guilt, that is, the turpitude of the offense. There were felonies not punishable with death, and on the other hand, there were offenses not felonies which were so punishable. However, the idea of felony was so generally connected with capital punishment, that erroneously, it came to be understood that all crimes punishable with death were felonies, and so, if a statute created a new offense and declared it a felony, but prescribed no punishment, by implication of law it was punishable with death. This has been changed by statute, and now where a felony is created and no punishment prescribed, it is transportation for seven years, or imprisonment, with or without hard labor, not exceeding two years, and for a second felony, transportation for life. 7 and 8 Geo. IV. The punishment for a misdemeanor at common law was fine or imprisonment, or both, unlimited, bot in the most aggravated cases seldom exceeding two years. Tomlin's Dict., title "Felony;" 4 Black. Com. 94; 3 Inst. 43; 4 Bacon's Abridg., tit. "Felony" and tit. 'Forfeiture;" Viner's Abridg., tit. Forfeiture;" 1 Hale's P. C. 411, 574; 1 Archb. Cr. Prac. 1 and note, and p. 185; 1 Russ. on Crimes, 42; 1 Bish. Cr. Law, §§ 580-590; U. S. v. Williams, 1 Cranch's C. C. 178; Adams v. Barrett, 5 Ga. 404, 412; State v. Dewer, 65 N. C. 572; United States v. Smith, 5 Wheat. 153, 159; United States v. Staats, 8 How. 41.

Tested by the common law then this term has no very exact and determinate meaning and can apply to no cases in this country except treason where limited forfeiture of estate is allowed. But technically that is a crime of a higher grade than felony, although it imports also a felony. If it be conceded that capital punishment imports a felony there can be none, at common law, except capital crimes. But that test is untechnical and founded in error. It does not always apply, and it is as arbitrary to say that a crime punished capitally is a felony, as it is to say that one punished by imprisonment in the penitentiary is a felony. Our ancestors brought with them the common-law gradations of crime, as they stood in their day, and although they organized a government which is wholly destitute of a criminal common law, its influence has always prevailed to produce incongruities arising out of an attempt, even when creating new offenses, unknown to any law except our own peculiar system, to keep up its gradations of crime. The Supreme Court, in the case last cited, points out the distinction between the use of the word "felony" as descriptive of an offense, and as descriptive of the punishment; pronounces it the merest technicality and holds that where a statute creates an offense and declares it a felony it is not necessary to plead a felonious intent. Bouv. Dict., "Feloniously." The court also speaks of "the moral degradation attaching to the punishment actually inflicted," and intimates that it is about all that is left to us of the common-law idea of felony. There is just as much of moral degradation in an offense called by the statute-makers a misdemeanor, if punished degradingly, as if with the same character of punishment they call it a felony.

In American law, forfeiture as a consequence of crime being generally abolished, the word "felony " has lost its original and characteristic meaning, and it is rather used to denote any high crime punishable by death or imprisonment. Burrill's Dict., tit. "Felony." The term is so interwoven with our criminal law that it should have a definition applicable to its present use; and this notion of moral degradation by confinement in the penitentiary has grown into a general understanding that it constitutes any offense a felony, just as, at common law, the idea of capital punishment became inseparably connected with that of felony. The e is therefore much force in the suggestion of counsel that since we cannot define this word, as used in this

statute, by the common law, it must be understood that Congress used it in this modern sense. Because, where the words of a statute construed technically would be inoperative, but construed according to their common signification would have a reasonable operation, the courts do sometimes adopt the latter construction. Yet, it will be found that this modern idea of felony has come into general use by force of State legislation on the subject, so far as it is legally established. From a very early day, and as a necessity, the State Legislatures have passed laws defining and enumerating felonies as those crimes punishable by confinement in the penitentiary; and this has come to be the law in nearly every State. In Tennessee the law of 1829 elaborately enumerates felonies, and punishes them with hard labor in the jail or penitentiary, and the act of 1873, ch. 57, makes all crimes, punishable by confinement in the penitentiary, felonies, aud so defines the term. C. & N. 316; Acts of 1873, p. 87. We have no such legislation by Congress; section 5391 of the Revised Statutes is limited to offenses committed in places ceded to the United States, and adopts the State law as to such offenses if not otherwise provided for; and of course, in such cases, if the offense is a felony by State law, it becomes a felony by this section.

There is no uniformity in the legislation of Congress as to the punishment of criminal offenses, and we often find statutory misdemeanors punished more severely than statutory felonies; and while some of the statutes prescribe hard labor as a part of the punishment, when necessarily the confinement must be in some prison where it can be so enforced, on the other hand the simple imprisonment prescribed may become confinement with hard labor by selecting a prison where it is a part of the discipline; so that we often find prisoners convicted of the same offense and sentenced to the same punishment, undergoing in fact different punishments. Ex parte Karstendick, 93 U. S. 396. In this case it is held that it is not the intention of our statutes to limit confinement in the penitentiary to those offenses where hard labor is imposed. Rev. Stats., § 5539. We find it, therefore, impracticable to apply any such text as that prescribed by the State legislation above mentioned, as the legislation of Congress now stands, to the determination of the meaning of the word "felony" as used in section 819 now under consideration.

But aside from this, nothing is better settled than that we cannot look to the State laws, in the criminal jurisprudence of the United States, for the characteristic elements which go to make up an offense, and enter into it as a part of its legal status; nor to the common law, nor even to the character of the punishment. The Federal courts take no cognizance of State statutes in criminal proceedings, and deduce no criminal jurisdiction from the common law, which has no force, directly or indirectly, to make an act an offense not made so by Congress. Though in all matters respecting the accusation and trial of offenders, not otherwise provided for, we are referred to the laws and usages of the State when the judicial system was organized. 1 1 Abb. Prac. 197; 2 id. 171; U. S. v. Reid, 12 How. 361; U. S. v. Lancaster, 2 McLean, 431; U. S. v. Peterson, 1 Wood. & M. 306, 309; U. S. v. Shepherd, 1 Hughes, 520, 522; U. S. v. Taylor, id. 514, 517; U. S. v. Maxwell, Dill. 275, 276; U. S. v. Shepherd, 1 Abb. 431; U. S. v. Cross, 1 McArth. 149; U. S. v. Black, 1 Sow. 211; U. S. v. Ebert, 1 Cent. L. J. 205; U. S. v. Williams, 1 Cliff. 5; U. S. v. Barney, 5 Blatchf. 294; U. S. v. Watkins, 3 Cr. C. C. 441, 451; U. S. v. Hammond, 2 Woods, 197; U. S. v. McGill, 1 Wash. C. C. 463.

In those cases where the State laws have been adopted as in section 5391 Revised Statutes, they stand as if the act of Congress had defined the offenses in the very

words of the State law; and in those cases where Congress has been content to denounce the offense by its common-law name, as in murder and rape for example (Revised Stats., 5339, 5354), they stand as if Congress had re-enacted the common law totidem verbis. And in such cases, unquestionably, if the crime be a felony at common law or by State statute, it is a felony under the act of Congress; and if not punished capitally would fall within the designation of "any other felony," as used in this section 819, by force, not of the common law or State statute, but of the Federal statute. Murder is a felony at common law, but it may be doubted if rape is, it having been made so by statute. Merton, 2; 1 Hale's P. C. 226. If this latter offense were not punished capitally, and we were confined as in some of the States to the ancient common law, and not that existing at the time of the revolution, it would become a very difficult matter to determine how it was to be ruled under this section 819. This is mentioned to illustrate the almost inextricable perplexity which arises from the use of this word "felony" in the present state of our law, in acts of Congress without some statutory definition of it. It does not follow, however, because we can find no common-law definition of this term which will give it and this statute operation according to that law, and are forbidden to adopt the definition found in the modern use of it in Stato statutes, that this clause of the section is nugatory. The authorities cited show that Congress has the undoubted power to create felonies by legislation operating within the limitations of its jurisdiction over crimes, and that from time immemorial Legislatures having general jurisdiction over criminal offenses have added felonies to the commonlaw list. United States v. Tynen, 11 Wall. 88. Statutes create felonies either by declaring offenses to be felonies, in express terms, or impliedly, as in the ancient statutes, by enacting that the defendant should have judgment of life and member where the word "felony" is omitted, or where the statute says an act under particular circumstances shall be deemed to have been feloniously committed. 1 Arch. Cr. Pr. 1, and note; 1 Russ. on Crimes, 43, and authorities above cited. Now, where the common law operates, this declaration, express or implied, entailed the consequences of forfeiture and if the statute fixed no punishment there was superadded by the ancient law the penalty of death, and now in England transportation and in our American States confinement in the penitentiary. But it is manifest that the jurisprudence of the United States, as long as section 5326 of the Revised Statutes and other prohibitions of forfeiture of estate and corruption of blood as a punishment for crime continues to be the law, and as long as Congress adopts no general legislation punishing felonies as such, either capitally or otherwise, the declaration that an offense shall be a felony in an act of Congress is merely brutum fulmen, except so far as it inclines the legislative mind to affix a more severe penalty for the commission of the offense. Notwithstanding this, however, it has been, until recent years, the constant habit of Congress to declare offenses created by it either felonies or misdemeanors in express terms or to leave them to be misdemeanors by making no declaration on the subject. There is no doubt that offenses are felonies when so declared to be, and the accused is entitled in such cases, where not punished capitally, to ten challenges under this section 819, and this is about the only substantive effect such a declaration has, unless it be that it further gives the accused the right to be proceeded against only by indictment under the fifth amendment to the Constitution; though it has been judicially declared that under our system a felony is not an infamous crime in the sense of that amendment. United States v. Cross, supra, and the other authorities above cited. It would seem therefore that

it is rather to the advantage than the disadvantage of the offender to have Congress declare his offense a felony. Be this as it may, the clause under consideration may operate, in other than capital cases, to give the defendant ten challenges in the following classes of cases: 1. Where the defense is declared by statute, expressly or impliedly, to be a felony. 2. Where Congress does not define an offense but simply punishes it by its common-law name, and at common law it is a felony. 3. Where Congress adopts a State law as to an offense, and under such law it is a felony.

It only remains to be determined whether the offense charged in this indictment comes within either of these categories. Making counterfeit coin was by the ancient common law treason, and subsequently a felony, while uttering or passing it was only a misdemeanor. Fox v. Ohio, 5 How. 410, 433; Tomlin's Dict., tit. "Coin; 1 Hale's P. C. 210, 224; United States v. McCarthy, 4 Cranch's C. C. 304; United States v. Shepherd, 1 Hughes, 521. The act of 1790 (1 Stats. 115) declares counterfeiting the public securities a felony and punished it with death. The act of 1825 reduced the punishment to hard labor not exceeding ten years. 4 Stats. 119. The act of 1806, the first to protect the coin, declared counterfeiting a felony punishable by imprisonment at hard labor. 2 Stats. 404. The act of 1825 declared counterfeiting the coin a felony punishable with imprisonment at hard labor not exceeding ten years. 4 Stats. 121. The act of 1873 declared counterfeiting treasury notes a felony, as did the acts of 1847 and 1861. 9 Stats. 120; 12 id. 123; 17 id. 434. Counterfeiting postage stamps was declared felony by the acts of 1851 aud 1853. 9 Stats. 589; 10 id. 256. Counterfeiting three cent pieces was by the act of 1865 made a misdemeanor. 13 Stats. 518.

The Revised Statutes drop this classification, as does the act of 1877, and these offenses are no longer declared felonies. Rev. Stats., 5414, 5457, 5464; 19 Stats. 223. And this demonstrates that the legislative will no longer declares this offense a felony, and we think the felony feature is impliedly repealed. It is argued very earnestly, however, that the effect of this is only to leave it a felony as at common law. We have already shown that under our system there is no common-law felony unless Congress merely defines a crime which is a felony at common law by its common-law name. If the act said "counterfeiting" shall be punished as prescribed, it would be a felony; but it does not say so; it defines the offense for itself and does not declare it a felony for the obvious reason that such a declaration would not change the character of the crime or the punishment, and would be wholly useless. Besides, it would be absurd to punish the misdemeanors of uttering and passing counterfeit coin with precisely the same punishment, all defined in the same section, and then say it was the intention of Congress to give a defendant charged with making the counterfeit ten challenges, and another defendant who passed it only three, while both offenses are defined and punished by the same section and with the same punishment. There is no substantial reason for such a distinction. One crime is just as heinous as the other in the sense of this statute, and are upon an equal footing. It is ruled that the defendant can have but three challenges.

NOTE. It has been stated that the commissioners who prepared the Revised Statutes were so perplexed with the word "felony" in connection with section 819 that they applied, by circular, for information from the district attorneys and others as to the practice under the acts of 1865 and 1872.

The Constitution uses the word "felony" in art. I, sec. 6, where senators and representatives are privileged from arrest in all cases except treason, felony, and breach of the peace;" in art. I, sec. 8, where Con

gress is granted power to define and punish "piracies and felonies" committed on the high seas, and offenses against the law of nations; and in art. IV, sec. 2, which requires a person charged in any State with "treason, felony, or other crime," who shall flee and be found in ahother State to be delivered up. In this last section the whole phrase has been construed to mean any offense against the law of the State from which the fugitive flees, and manifestly the word "felony" is used synonymously with the word "crime" in the same phrase. Kentucky v. Ohio, 24 How. 66. In art. II, § 4, the Constitution allows officers to be impeached for " treason, bribery, or other high crimes and misdemeanors." The amendments in art. V use the phrase "capital or otherwise infamous crime," and in art. XIV, sec. 2, "rebellion or other crime." These phrases all show that not much attention was paid to technical classification of offenses according to the common law into high treason, petit treason, felonies, misprisions, misdemeanors and crimen falsi, although many common-law terms are used.

The Revised Statutes have, by express words or implication, declared offenses not capital to be felonies in the following sections: 5346, 5356, 5362, 5383, 5394, 5424, 5425, 5426, 5427, 5448, 5456, 2998, 3105, 3311, 3324, 3375, 3397, and sec. 5509. The implication may be doubtful in some of these sections, but in most of them it is quite plain. Offenses are oftener declared misdemeanors, and "misprision of treason" and "misprision of felony" are mentioned respectively in sections 5333 and 5390.

It is curious to note the incongruous distribution of punishment throughout these statutes, as applied to created felonies in contradistinction to the misdemeanors and those offenses not called by any name.

If the original draughtsman happens to be an old common-law lawyer the statute separates the crimes into felonies and misdemeanors, after the old style, but if a modern innovator, it abandons the classification as useless.

The whole subject is illustrative of what Amos says in his "Ruins of Time," that "the common law of crimes is in reality the patchwork of every judge, in every reign from Coeur de Lion to Victoria." Pref. X, 2 Bouv. Dict., title "Criminal Law;" only it is not always the judges who do the patching. E. S. H..

IOWA SUPREME COURT ABSTRACT. JUNE 2, 1880.

RECEIVER-TAKES SUBJECT TO CLAIM OF LIENHOLDER NOT PARTY.- A receiver of a railroad was appointed in an action to which S., a lienholder, was not a party. He was authorized by the court to complete the railroad and issue certificates therefor. The certificates were foreclosed and the road sold, the lien-holder not being a party to this proceeding. Held, that the lien of S. was not affected. A receiver's possession is subject to all valid and existing liens upon the property at the time of his appointment. What expenses a receiver may properly incur becomes a question sometimes of great doubt and difficulty. The fundamental idea is that he must preserve the property, and hold the same to be disposed of under the orders of the court. To that end he may, under the direction of the court, make repairs. Blunt v. Citherow, 6 Ves. 799; Attorney-General v. Vigor, 11 id. 563; Thornhill v. Thornhill, 14 Sim. 600. A receiver of a railroad may operate it, and pay the expenses incident thereto, because this is deemed necessary for its proper presentation. Ellis v. B., H. & E. R. Co., 107 Mass. 1. That he may even go further and provide additional accommodations, stock, etc., was held in Cowdry v. Railroad Co., 1 Wood, 331. In Wallace v. Loomis, 97 U. S. 162, it was held that the receiver

might issue certificates of indebtedness for rolling stock, and that the same might be charged upon the road as a lien paramount to subsisting liens. It was said, however, that the power should be exercised with great caution. In Stanton v. Railroad Co., 2 Wood, 506, it was held that the court might authorize the receiver to borrow money to complete an inconsiderable portion of the road, and make the sums borrowed a lien paramount to the first mortgage, it appearing to be necessary for the protection of the rights of the parties in interest. See, also, Kennedy v. St. P. & P. R. Co., 2 Dill. 448, where certain work was authorized in making an extension which was necessary to prevent the forfeiture of an important land grant, in which all parties were interested. It is said, however, in High on Receivers, § 390, that "the receiver is seldom authorized to enlarge the operations of the company, or extend its line of road, his functions being usually limited to the management of the property in its existing condition." But a lien may not be displaced by an order made in a proceeding to which the lien-holder is not a party. Snow v. Winslow et al. Opinion by Adams, C. J. Seevers, J., dissented on the ground that S. was only entitled to a lien which required an action to establish when the receiver was appointed.

TRADE-MARK

RIGHT TO, INDEPENDENT OF STATUTE INJUNCTION.- In an action to restrain defendants from using as a trade-mark the words "Shaver Wagon Eldora," it appeared that defendants, one of whom was of the same name as plaintiff, had previously been associated with him in business, painted the words in a different form on the wagons manufactured by them, and painted their own initials near such words. The wagons in general style and in painting resembled those manufactured by plaintiff, and were not inferior thereto. Held, that there was a wrongful use of plaintiff's trade-mark which equity would restrain. For three hundred years the common law has recognized the right of the proprietor of a trademark to its exclusive use, and has awarded damages for the deprivation of such use. Southern v. How, Popham, 143, 144. The right has been, without interruption, recognized and protected by the courts of England and the United States from that day to the present, in the absence of statutes declaring the existence of such right, or providing regulations for its exercise and remedies for its deprivation. Many cases involving the subject have been decided by the courts. The jurisdiction of chancery to restrain the use of a trade-mark without the consent of the proprietor was first recognized at a later day. In 1742 Lord Hardwicke denied it (Blanchard v. Hill, 2 Atk. 484), but within the last fifty years it has been repeatedly exercised in England and in this country. No American case can be found denying it. It has been expressly held that the right to the exclusive use of a trade-mark, where statutes exist regulating and protecting it, does not depend upon such statutes. Derranger v. Plate, 29 Cal. 292; Filley v. Fassett, 44 Mo. 173. In the language of Ames, C. J., in Barrons v. Knight, 6 R. I. 434, "it never could have been a question that a designed imitation by the defendant of the trade-mark of the plaintiff, whereby the former fraudulently passed off his goods in the market as goods manufactured by the latter, and to his injury, would support an action." The rule is firmly settled that chancery will, in a proper case by injunction, protect the proprietor of a trade-mark in its exclusive use. Certain principles and rules pertaining to the subject of trade-marks are applicable to this case. A trademark is a name, sign, symbol, mark, brand, or device of any kind, used to designate the goods manufactured or sold, or the place of business of the manufacturer or dealer in such goods. The exclusive right in a