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fendant's colliery. In 1868 plaintiff named purchased drained by Meadow Brook, and the pollution of its the premises through which this stream

ran and

waters has occurred since the plaintiff's purchase. As erected a house thereon. The stream was one of pure a general custom, it lacks the necessary age, for the bewater running from a spring above the grounds. This ginning of deep coal mining in the regions above stream constituted one of the inducements to plaintiff named is quite within the memory of men yet living. for purchasing, and the improvements on the place Wanting this it fails in a particular essential to the made by him, which included a fish pond, water pipes establishment of such a custom. Jones v. Wagner, 16 and dam for forcing the water into his house, cost P. F. S. 429. But more fatal still to the defendant's about $80,000. Soon after the improvements were com- pretension is the fact that tho effort is thus to justify pleted the defendants opened a colliery about three the disturbance of private property for the advancemiles above plaintiff's grounds and commenced pump- ment of the private interests of the defendant corpoing the water therefrom, which water found its way ration, and that, not under the plea of an ancient cuswithout being directed by defendants into the stream in tomary use, arising before the plaintiff acquired title, question. This water so polluted the stream as to ren- but of a general custom which would authorize the der it unfit for drinking or washing and so injurious to present injury or destruction of the rights of riparian the fish in plaintiff's ponds that they died, and so as to

But a custom such as this would not only be cause injury or destruction to the dam and pipes put unreasonable, but also unlawful, and therefore worthdown by plaintiffs. Ou the first trial of the case less. It is urged that mining cannot be carried on plaintiffs were nonsuited, but the nousuit was reversed without this outflow of acidulous water, hence of neon appeal (5 Nor. 401 ; see, also, 18 Alb. L. J., 162). From cessity the neighboring streams must be polluted. a judgment in favor of plaintiff's defendants took a This is true, and it is also true that coal mining would writ of error. Other facts as disclosed by the opinion. come to nothing without roads upon which to trans

port the coal after it is mined; therefore roads are A. T. McClintock, 1. J. Post and Samuel Dickson, for necessary; but it does not follow that for such purplaintiffs in error.

pose the land of an adjacent owner may be taken, or A. Ricketts, for defendants in error.

his right of way incumbered, without compensation.

If indeed the custom set up were to prevail, then, at GORDON, J. The material points in this case have

least so far as coal mining companies are concerned, been most fully and carefully discussed in the opinion

there would be an abrogation of the 8th section, art. delivered by our late lamented brother Woodward in

16 of the Constitution, which provides that “municithis same case, when here before, and which may now

pal and other corporations, invested with the privilege be found in 5 Nor, 401. As that opinion has been

of taking private property for public use, sball make faithfully followed in the court below, we are relieved

just compensation for property taken, injured, or de

stroyed by the construction and enlargement of their of any extended examination of the case as now pre

works, highways, or improvements.” Not only would sented. Whether or not the injury complained of re

we thus bave a custom superior to the supreme law of sulted from the act of the defendant in pumping dele

the land, but one reaching even beyond the possible terious mine water into the Meadow Brook was fairly

sovereignty of the State, in that it would empower subunitted to the jury, and that body found that that

private persons, for private purposes, to injure or dewas the immediate cause of the injury. When, in

stroy private property, and that without compensation. 1868, Mrs. Sanderson purchased her property on Meadow

A custom such as this is radically bad, and cannot be Brook, she found the water of this stream pure aud

sustained. valuable for domestic purposes. Her right to have and

Judgment affirmed. use these waters as she found them is undoubted. This

Paxson and Sterrett, JJ., dissent. right, though of an incorporeal character, was as abso

Sharswood, C. J., and Green, J., absent. lute as her right to the land through which they flowed. But that right has been destroyed, or its value

FELONIES UNDER FEDERAL LAWS. 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

UNITED STATES CIRCUIT COURT, W. D. TENNESSEE. answer is twofold: (1) It is said this pollution of this

JANUARY 31, 1880. brook results from the necessities of coal mining, and, as that is an industry important to the welfare of this

UNITED STATES V. COPPERSMITH. Commonwealth, the right of the plaintiff must yield to A defendant indicted for making counterfeit coin is entiit. But this argument is fallacious in this, the mining tled topnly three peremptory challenges of jurors under operations of the defendant do not involve the public

section 819 of the Revised Statutes. The offense is not welfare, but are conducted purely for the purposes of

a felony under any existing act Congress. private gain. Incidentally all lawful industries result

All offenses against the United States being statutory, they

are not felonies if the punishment be less than capital, in the general good; they are, however, not the less

unless they are by the statute so declared to be, either instituted and conducted for private gain, and are

in express terms or by necessary implication. used and enjoyed as private rights over which the pub- In the criminal jurisprudence of tho Federal law there aro lic has no control. It follows that none of them, how- three distinct classes of felonies, not capitally punished. ever important, can justly claim the right to take and 1. Where the offense is declared by statute, expressly or use the property of the citizen without compensa

impliedly, to be a felony. 2. Where Congress does not tion.

define an offense, but simply punishes it by its common.

law namo, and at common law it is a felony. 3. Where (2) It is urged that the customary mode of disposing

Congress adopts a State law as to an offense and by that of water pumped from the mines in the Lackawama

law it is a felony. and Wyoming coal regions has been to allow it to flow Congress has power to create felonies or reduce commoninto the adjacent natural watercourses. Of this proof law felonies to misdemeanors, but such gradation is was offered, and that for the purpose of showing a inapplicable to our system of jurisprudence; and in the general custom thus to use the rivers, creeks and

present state of legislation, to declaro an offense a smaller streams of this part of the State, and, it may

felony is brutum fulmen, except that it may incline the

legislative mind to more severe punishment. In other be added, so to destroy the rights of riparian owners.

respects it seems an advantage to the offender, for he As a local custom or prescription, this has no applica.

then has ten challenges instead of three, and possibly tion to the case in hand, for the colliery of the defend- may be entitled to be proceeded against only by indictant appears to be the only one within the territory ment and not by information.

INDICTMENT for counterfeiting. The facts appear felony for the phrase in the act of 1865. which was W. W. Murray, district attorney, and J. B. Clough,

remptory challenges to cases of felony and thereby left

it impossible to determine under the act of 1865 to assistant district attorney, for the United States.

what cases it should apply. Perhaps a proper conGeorge Gantt, for defendaut.

struction of the act of March 3, 1865, taken in connecHAMMOND. J. The defendant being on trial for tion with the law as it then stood under the decision counterfeiting the coin of the United States, has pe- in the case of United States v. Shackelford, supra, and remptorily challenged three of the jurors tendered to the act of 1840, would have been to look to the State him, and claims the right to challenge another and practice to determine in what cases tho right of peany number to the extent of ten, under section 819 of remptory challenge “now exists," and to allow ten the Revised Statutes. He insists that the offense of challenges in all such cases; for the State practice then making counterfeit coin is a felony at common law furnished not only the rule as to number but the rule and therefore a felony in the purview of that section; as to the kind of offense in which the right of pehe also insists that being punishable by imprisoment remptory challenge existed, as we have already seen. at hard labor, which necessarily implies confinement There would have been some certainty in this, but iu a penitentiary, it is a felony according to the ordi- now there is no other course but to determine by the nary acceptation of the term in American law; that common law what Congress meant in this section of Congress used the term in that sense in this statute, the Revised Statutes by the words “any other felony." and did not intend to indicate capital offenses already If Congress uses a common-law term in defining a provided for by the same section of the Revised crime, or in any statute, we must look to the common Statutes.

law for a definition of the term used. 2 Abb. Prac. Section 819, above referred to, is as follows:

" When

171; Conk. Treatise, 178 (5th ed.); United States v. the offense charged is treason or a capital offense, the Palmer, 3 Wheat. 610; United States v. Wilson, Baldw. defendant shall be entitled to twenty and the United 78, 93; United States v. Barney, 5 Blatchf. 294, 296; States to five peremptory challenges. On the trial of United States v. Magill, 1 Wash. C. C. 463. The Massaany other felony, the defendant shall be entitled to ten chusetts Code commissioners, many years ago, in and the United States to three peremptory chal- enumerating felonies within the provisions of their lenges; and in all other cases, civil and criminal, each Code, in a note, add that the meaning “of the word party shall be entitled to three peremptory challenges," felony' (as by them defined), is limited to the use of etc.

the word in this Code, and is not to be confounded It is apparent that it was here intended to designate with the common-law signification of the same term, by the term “any other felony," other offenses than whatever that meaning may be, for it is a matter of no capital offenses, for they are otherwise specially pro- little difficulty to settle it." Report; Title Explanation vided for by this section.

of Terms cited 1 Hale's P. C. (A. D. 1847) 675, note. Prior to legislation by Congress this matter of pe- The Supreme Court of Alabama said, in Harrison v. remptory challenges in the Federal courts was in some State, 55 Ala. 239, 241, that it is not easy to deterconfusion until the Supreme Court declared that they mine in all cases what are felonies and crimen falsi. might, by rule, adopt the State practice. United "To predicate of an act," says the Supreme Court of States v. Shackelford, 18 How. 588; United States v. Ohio, “that it is felonious, is simply to assert a legal Douglass, 2 Blatchf. 207; United States v. Reed, id. conclusion as to the quality of the act; and unless the 435, 447, and note; United States v. Cotlingham, id. 470; act charged, of itself, imports a felony, it is not made United States v. Tallman, 10 id. 21; United States v. so by the application of this epithet. Indeed, the Devlin, 6 id. 71.

term felony has no distinct and well-defined meaning When we could resort to the State practice, it was applicable to our system of criminal jurisprudence. generally found that legislation had accurately regu- In England it has a well known and extensive signifilated the right of challenge by distinctly classifying cation, and comprises every species of crimo which at offenses with such statutory definitions as left no room common law worked a forfeiture of goods and lands. for doubt. But since Congress has legislated we can But under our Criminal Code, the word “felonious,' no longer look to the State laws for guidance, nor to although occasionally used, expresses a signification the common law, but only to the acts of Congress no less vague and indefinite than the word 'criminal.'" themselves, which unfortunately have only increased Matthews V. Stute, 4 Ohio St. 539, 542. In the Conthe confusion by the use of an indefinite term. I am stitution of Tennessee the words “ criminal charge not advised of any reported case construing this sec- are held to be synonymous with crimes," which is tion, nor of the practice in regard to it, except that it said to .mean, technically, “felonious" offenses. Mcis said at the bar that heretofore in this district, ten Ginnis v. State, 9 Humph. 43. challenges have not been allowed in any case where the The term “felony” appears to have been long used to offense charged was not, by the statute creating it, signify the degree or class of crime committed rather declared to be a felony. The first act of Congress, thau the penal consequences of the forfeiture occapassed March 3, 1865 (13 Stats. 500), after providing for sioued by the crimo according to its original significatreason and capital offenses, as is done by this section tion. 1 Archb. Cr. Pl. 1, note; 1 Russ. on Crimes, 43. 819, provided that “on the trial of any other offense in Capital punishment by no means enters into the which the right of peremptory challenge now exists, the true definition of felony. Strictly speaking the term defendant shall be entitled to ten and the United comprised every species of crime which occasioned at States to two peremptory challenges.” The criticism common law the total forfeiture of either lands or of Judge Conkling, in the fifth edition of his Treatise, goods, or both. That was the only test. Felonies by page 632, on this act. demonstrates how indefinite were common law are such as either concern the taking the terms used, and he concludes that the section was away of life, or concern the taking away of goods, nugatory as to all crimes except treašon and capital concern tbe habitation, or concern the oboffenses; because the right of peremptory challenge, struction of the execution of justice in criminal he says, only exists in cases of felony, and now nothing and capital causes, as escapes, rescues, etc. 1 Hale's P. is felony except capital offenses. In this criticism the C. 411. These crimes were of such enormity that the learned district judge of Oregon seems to concur, for common luw punished them by forfeiture. 1. The he also declares the section nugatory. United States v. offender's wife lost her dower. 2. His children became Randall, 1 Deady, 524, 548. Yet, strange to say, the act base and ignoble and his blood corrupted. 3. He forof June 8, 1872 (17 Stats. 282), substitutes this word feited his goods and chattels, lands and tenements.



The superadded punishment was either capital or other- statute, by the common law, it must be understood
wise according to the degree of guilt, that is, the that Congress used it in this modern sense. Because,
turpitude of the offense. There were felonies not pun- where the words a statute construed technically
ishable with death, and on the other hand, there were would be inoperative, but construed according to their
offenses not felonies which were so punishable. How- common signification would have a reasonable opera-
ever, the idea of felony was so generally connected tion, the courts do sometimes adopt the latter con-
with capital punishment, that erroneously, it came to struction. Yet, it will be found that this modern idea
be understood that all crimes punishable with death of felony has come into general use by force of State
were felonies, and if a statute created a new offense legislation on the subject, so far as it is legally estab-
and declared it a felony, but prescribed no punishment, lished. From a very early day, and as a necessity, the
by implication of law it was punishable with death. State Legislatures have passed laws defining and
This has been changed by statute, and now where a enumerating felonies as those crimes punishable by
felony is created and no punishment prescribed, it is confinement in the penitentiary; and this has come to
transportation for seven years, or imprisonment, with be the law in nearly every State. In Tennessee the
or without hard labor, not exceeding two years, and law of 1829 elaborately enumerates felonies, and puu-
for a second felony, transportation for life. 7 and 8 ishes them with hard labor in the jail or penitentiary,
Geo. IV. The punishment for a misdemeanor at com- and the act of 1873, ch. 57, makes all crimes, punishable
mon law was fine or imprisonment, or both, unlimited, by confinement in the penitentiary, felonies, aud so
bot in the most aggravated cases seldom exceeding two defines the term. C. & N. 316; Acts of 1873, p. 87. We
years. Tomlin's Dict., title “Felony;" 4 Black. Com. have no such legislation by Congresa; section 5391 of
94; 3 Inst. 43; 4 Bacon's Abridg., tit. “ Felony" and the Revised Statutes is limited to offeuses committed
tit. “Forfeiture;" Viner's Abridg., tit. “Forfeit- in places ceded to the United States, and adopts the
ure;" 1 Hale's P. C. 411, 574; 1 Archb. Cr. Prac. and State law as to such offenses if not otherwise provided
mote, and p. 185; 1 Russ. on Crimes, 42; 1 Bish. Cr. for; and of course, in such cases, if the offense is a
Law, $$ 580-590; U. S. v. Williams, 1 Crauch's C. C. felony by State law, it becomes a felony by this sec-
178; Adams v. Barrett, 5 Ga. 404, 412; State v. Dewer, tion.
65 N. C. 572; United States v. Smith, 5 Wheat. 153, 159; There is no uniformity in the legislation of Congress
United States v. Staats, 8 How. 41.

as to the punishment of criminal offenses, and we
Tested by the common law then this term has no often find statutory misdemeanors punished more
very exact and determinate meaning and cau apply to severely than statutory felonies; and while some of
no cases in this country except treason where limited the statutes prescribe hard labor as a part of the pun-
forfeiture of estate is allowed. But technically that is ishment, when necessarily the confinement must be in
a crime of a higher grade than felony, although it im- some prison where it can be so enforced, on the other
ports also a felony. If it be conceded that capital pun- hand the simple imprisonment prescribed may become
ishment imports a felony there can be none, at common confinement with hard labor by selecting a prison
law, except capital crimes. But that test is untech- where it is a part of the discipline; so that we often
nical and founded in error. It does not always apply, find prisoners convicted of the same offense and seni-
and it is as arbitrary to say that a crime punished cap- tenced to the same punishment, undergoing in fact
itally is a felony, as it is to say that one punished by different punishments. Ex purte Karstendick, 93 U.
imprisonment in the penitentiary is a felony. Our an- S. 396. In this case it is held that it is not the inten-
cestors brought with them the common-law grada- tion of our statutes to limit confinement in the peni-
tions of crime, as they stood in their day, and although tentiary to those offenses where hard labor is imposed.
they organized a government which is wholly destitute Rev. Stats., $ 5539. We find it, therefore, impractica-
of a criminal common law, its influence has always ble to apply any such text as that prescribed by the
prevailed to produce incongruities arising out of an State legislation above mentioned, as the legislation
attempt, even when creating new offenses, unknown of Congress now stands, to the determination of the
to any law except our own peculiar system, to keep up meaning of the word “felony" as used in section 819
its gradations of crime. The Supreme Court, in the now under consideration.
case last cited, points out the distinction between the But aside from this, nothing is better settled than
use of the word “felony" as descriptive of an offense, that we cannot look to the State laws, in the criminal
and as descriptive of the punishment; pronounces it jurisprudence of the United States, for the character-
the merest technicality and holds that where a statute istic elements which go to make up an offense, and
creates an offense and declares it a felony it is not enter into it as a part of its legal status; nor to the
necessary to plead a felonious intent. Bouv. Dict., common law, nor even to the character of the punish-

* Feloniously.” The court also speaks of “the moral ment. The Federal courts take no cognizance of State degradation attaching to the punishment actually in- statutes iu criminal proceedings, and deduce no crimiflicted," and intimates that it is about all that is left nal jurisdiction from the common law, which has no to us of the common-law idea of felony. There is just force, directly or indirectly, to make an act an offense as much of moral degradation in an offense called by not made so by Congress. Though in all matters rethe statute-makers a misdemeanor, if punished de- specting the accusation and trial of offenders, not othergradingly, as if with the same character of punishment wise provided for, we are referred to the laws and they call it a felony.

usages of the State when the judicial system was orIn American law, forfeiture as a consequence of ganized. 1 Abb. Prac. 197; 2 id. 171; U. $. v. Reid, 12 crime being generally abolished, the word “felony' How. 361; U. S. v. Lancaster, 2 McLean, 431; U. S. v. has lost its original and characteristic meaning, and it Peterson, 1 Wood. & M. 306, 309; U. S. v. Shepherd, 1 is rather used to denote any high crime punishable by Hughes, 520, 522; U. S. v. Taylor, id. 514, 517; U. S. death or imprisonment. Burrill's Dict., tit. “Felony." v. Maxwell, 3 Dill. 275, 276; U. S. v. Shepherd, 1 Abb. The term is so interwoven with our criminal law that 431; U. S. v. Cross, 1 McArth. 149; U, S. v. Black, 1 it should have a definition applicable to its present use; Sow. 211; U. S. v. Ebert, 1 Cent. L. J. 205; U. $. v. and this notion of moral degradation by confinement Williams, 1 Cliff. 5; U. S. v. Barney, 5 Blatchf. 294; in the penitentiary has grown into a general under- U. S. v. Watkins, 3 Cr. C. C. 441, 451; U. S. v. Hamstanding that it constitutes any offense a felony, just mond, 2 Woods, 197; U. S. v. McGill, 1 Wash. C. C. as, at common law, the idea of capital punishment be

463. came inseparably connected with that of felony. The e In those cases where the State laws have been adopted is therefore much force in the suggestion of counsel as in section 5391 Revised Statutes, they stand as if the that since we cannot define this word, as used in this act of Congress had defined the offenses in the very

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words of the State law; and in those cases where Con- it is rather to the advantage than the disadvantage of gress has been content to denounce the offense by its the offender to have Congress declare his offense a common-law name, as in murder and rape for example felony. Be this as it may, the clause under considera(Revised Stats., 5339, 5354), they stand as if Congress had tion may operate, in other than capital cases, to give re-enacted the common law totidem verbis. And in the defendant ten challenges in the following classes such cases, unquestionably, if the crime be a felony at of cases: 1. Where the defense is declared by statute, common law or by State statute, it is a felony under expressly or impliedly, to be a felony. 2. Where Conthe act of Congress; and if not punished capitally gress does not define an offense but simply punishes it would fall within the designation of any other felony,” by its common-law name, and at common law it is a as used in this section 819, by force, not of the com- felony. 3. Where Congress adopts a State law as to mon law or State statute, but of the Federal statute. an offense, aud under such law it is a felony. Murder is a felony at common law, but it may be It only remains to be determined whether the ofdoubted if rape is, it having been made so by stat- feuse charged in this indictment comes within either ute. Merton, 2; 1 Hale's P. C. 226. If this latter of these categories. Making counterfeit coin was by offense were not punished capitally, and we were con- the ancient common law treason, and subsequently a fined as in some of the States to the ancient common felony, while uttering or passing it was only a misdelaw, and not that existing at the time of the revolu- meanor. Fox v. Ohio, 5 How. 410, 433; Tomlin's Dict., tion, it would become a very ditficult matter to deter- tit. “Coin;" 1 Hale's P. C. 210, 224; United States v. mine how it was to be ruled under this section 819. McCarthy, 4 Cranch's C. C. 304; United States v. ShepThis is mentioned to illustrate the almost inextricable herd, 1 Hughes, 5:21. The act of 1790 (1 Stats. 115) deperplexity which arises from the use of this word clares counterfeiting the public securities a felony and “felony" in the present state of our law, in acts of punished it with death. The act of 18:25 reduced the Congress without some statutory definition of it. It punishment to hard labor not exceeding ten years. 4 does not follow, however, because we can find no Stats. 119. The act of 1806, the first to protect the common-law definition of this term which will give it coin, declared counterfeiting a felony punishable by and this statute operation according to that law, and imprisonment at hard labor. 2 Stats. 404. The act of are forbidden to adopt the definition found in the 1825 declared counterfeiting the coin a felony punishmodern use of it in Stato statutes, that this clause of able with imprisonment at hard labor not exceeding the section is nugatory. The authorities cited show ten years. 4 Stats. 121. The act of 1873 declared counthat Congress has the undoubted power to create fel- terfeiting treasury notes a felony, as did the acts of onies by legislation operating within the limitations of 1817 and 1861. 9 Stats. 120; 12 id. 123; 17 id. 434. its jurisdiction over crimes, and that from time im- Counterfeiting postage stamps was declared felony by memorial Legislatures having general jurisdiction over the acts of 1851 and 1853. 9 Stats. 589; 10 id. 256. criminal offenses have added felonies to the common- Counterfeiting three cent pieces was by the act of 1865 law list. United States v. Tynen, 11 Wall. 88. Statutes made a misdemeanor. 13 Stats. 518. create felonies either by declaring offenses to be felon- The Revised Statutes drop this classification, as does ies, in express terms, or impliedly, as in the ancient the act of 1877, and these offenses are no longer destatutes, by enacting that the defendant should have clared felonies. Rev. Stats., 5414, 5457, 5464; 19 Stats. judgment of life and member where the word “fel- | 223. And this demonstrates that the legislative will ony" is omitted, or where the statute says an act no longer declares this offense a felony, and we think under particular circumstances shall be deemed to the felony feature is impliedly repealed. It is argued have been feloniously committed. 1 Arch. Cr. Pr. 1, very earnestly, however, that the effect of this is only and note; 1 Russ. on Crimes, 43, and authorities above to leave it a felony as at common law. We have alcited. Now, where the common law operates, this ready shown that under our system there is no comdeclaration, express or implied, entailed the conse- mon-law felony unless Congress merely defines a crime quences of forfeiture and if the statute fixed no pun- which is a felony at common law by its common-law ishment there was superadded by the ancient law the name. If the act said “counterfeiting” shall be punpenalty of death, and now in England transportation ished as prescribed, it would be a felony; but it does and in our American States confinement in the peni- not say so; it defines the offense for itself and does not tentiary. But it is manifest that the jurisprudence of declare it a felony for the obvious reason that such a the United States, as long as section 5326 of the Re- declaration would not change the character of the vised Statutes and other prohibitions of forfeiture of crime or the punishment, and would be wholly useless. estate and corruption of blood as a punishment for Besides, it would be absurd to punish the misdemeancrime continues to be the law, and as long as Congress ors of uttering and passing counterfeit coin with preadopts no general legislation punishing felonies as cisely the same punishment, all defined in the same such, either capitally or otherwise, the declaration section, and then say it was the intention of Congress that an offense shall be a felony in an act of Congress to give a defendant charged with making the counteris merely brutum fulmen, except so far as it inclines the feit ten challenges, and another defendant who passed legislative mind to affix a more severe penalty for the it only three, while both offenses are defined and puncommission of the offense. Notwithstanding this, ished by the same section and with the same punishhowever, it has been, until recent years, the constant ment. There is no substantial reason for such a dishabit of Congress to declare offenses created by it tinction. One crime is just as heinous as the other in either felonies or misdemeanors in express terms or to the sense of this statute, and are upon an equal footing. leave them to be misdemeanors by making no declara- It is ruled that the defendant can have but three chaltion on the subject. There is no doubt that offenses lenges. are felonies when so declared to be, and the accused is entitled in such cases, where not punished capitally, to NOTE.-It has been stated that the commissioners ten challenges under this section 819, and this is about who prepared the Revised Statutes were so perplexed the only substantive effect such a declaration has, un- with the word “felony" in connection with section less it be that it further gives the accused the right to 819 that they applied, by circular, for information from be proceeded against only by indictment under the the district attorneys and others as to the practice unfifth amendment to the Constitution; though it has der the acts of 1865 and 1872. been judicially declared that under our system a felony The Constitution uses the word “felony" in art. I, is not an infamous crime in the sense of that amend- sec. 6, where senators and representatives are priv-! ment. United States v. Cross, supra, and the other ileged from arrest in all cases except treason, felony, authorities above cited. It would seem therefore that and breach of the peace;' in art. I, seo. 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, 5124, 5425, 5426, 5427, 5448, 5458, 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 Coeurde 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..

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., % 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 tho 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 wagous 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 wi

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 bas been repeatedly exercised in England and in this country. No American case can b foun

denying it. It ha

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 chaucery 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


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 tho 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 y. Loomis, 97 U. S. 162, it was held that the receiver

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