over his objection. When the argument was reached counsel for defendant asked the privilege of addressing the jury in the Spanish language, that being the only language understood by a majority of the jury. This was refused, although no objection was interposed by the State. The court said: "The right of a defendant charged with felony, to be tried by jurors who understand the English language, is not an open question in this State. In Lyle's case, 41 Tex. 172; S. C., 19 Am. Rep. 38, the question was maturely considered and determined affimatively, and no subsequent legislation, organic or statutory, has qualified the ruling in that case." "A trial would be legally fair and impartial, within the meaning of the Constitution, before a jury of deaf mutes, who, by reason of their misfortune, could not hear a word of the testimony or argument of counsel, and a trial before either could be nothing less than a mockery. After having forced such a jury upon the prisoner, in vio so doing the accident happened. Neither the plaintiff nor the lady testified as to the purpose for which the call was to be made; nor did it appear that the plaintiff had any acquaintance with the sister-in-law. The trial court left it to the jury to say whether he was travelling for any other purpose than that of going to or returning from the funeral. The jury found for the plaintiff. This was reversed, the court saying: "It was correctly ruled at the trial that the plaintiff could lawfully travel on the Lord's day for the purpose of going to or returning from the funeral, and that it was not necessary that he should return by the same or by the shortest route, unless the route taken by him was so unreasonable and inconvenient as to show a purpose outside of the alleged necessity or charity. But if, while in attendance at the funeral, or upon leaving the cemetery, it was proposed to him by his companion to go to another place, not upon the ordinary return route, in order for her convenience or pleasure, to visit a friend, and if he acceded to this pro-lation of his constitutional privilege, the error was posal, it would be the substitution of a new and different purpose of the journey in place of that which he had in view when he began it, and a purpose entirely outside of the necessity or charity which influenced him at the outset. If he had taken her from her residence and gone with her to Charlestown to make the intended visit on the Lord's day, without attending the funeral at all, it would have been a clear violation of the statute. It is difficult to see why it would be any the less so if, having attended the funeral, he, instead of returning directly from it, accepted an invitation to make a different journey for a purpose having nothing whatever to do with the funeral. It makes no difference that the determination to make that journey was formed after he had attended the funeral and was about to return. By the terms of the statute he had no right to make that journey at all on that day and for that purpose. The majority of the court are, therefore, of opinion that the presiding judge fell into the error of submitting to the jury what was really a question of law; and that he should have instructed them, that upon the undisputed facts of the case, the plaintiff had not brought himself within the exception expressed in the statute, and was not entitled to maintain the action." In McCampbell v. State, Texas Court of Appeals, Austin term, 1880, 3 Tex. L. J. 726, before the process of impanelling the jury was began, the defendant objected to any person being sworn and impanelled as a juror who did not understand and speak the English language, which objection was overruled by the court. Thereupon the jurors, as summoned, were called and the defendant exercised his right of peremptory challenges until they were exhausted, after which eight jurors, whose names are set out, were called and upon their voire dire, stated that they did not speak or understand the English language. The defendant then challenged each of these jurors for cause, on that account, which challenges were disallowed, and the jurors accepted magnified by a refusal to permit his counsel to ad- The case of Scribner v. Stoddart, U. S. Circuit Court, Eastern District of Pennsylvania, 19 Am. L. Reg. (N. S.) 433, is more noticeable for what it queries than for what it decides. The suit was for an injunction to restrain the publishers of the American reprint of the Encyclopedia Brittannica from publishing in that reprint certain articles written for the foreign edition and copyrighted in this country. The court queried whether a copyright granted to a foreigner for a work written by an American citizen, and purchased before publication, is valid, saying, "I think it may safely be said that the question is open to very serious doubt." The court also queried whether a citizen, who has copyrighted a short paper, and has allowed it to be published in a foreign country as part of an encyclopedia, can use his copyright to prevent the republication of the work in this country. The court said, this "is freer from doubt," but still doubtful enough to warrant the denial of the injunction. But the denial was mainly put on the ground that "the injury likely to result to the plaintiffs from a denial of this motion, will be very much less than that which would be suffered by the defendants if it was granted." The court thought that the demand for the articles in question, in a separate form, would not in any event be❘ great, and would not be materially injured by their publication in the general work. On the other hand, if the injunction were granted, the foreign | publication would "virtually drive the reprint out, and leave the field to the other side, and it would be occupied and harvested probably before this case was concluded." The defendant is not to be looked upon simply in the light of an ordinary wrong-doer." "At the time he commenced this publication there was nothing unlawful in what he did." "The defendant at the beginning could not know that before this work was completed and fully issued, it would contain articles which were copyrighted." There was nothing to warn him of the insertion of such matter." 66 THIRTIETH AMERICAN REPORTS. THIS THIS volume of 877 pages contains the leading cases from 5 Baxter, 88 Illinois, 62, 63 Indiana, 48 Iowa, 21 Kansas, 48 Maryland, 126 Massachusetts, 55 Mississippi, 68 Missouri, 8 Nebraska, 74 New York, 80 North Carolina, 32 Ohio State, 87 Pennsylvania State, 9, 10 South Carolina, 49 Texas, 3, 4 Texas Court of Appeals, 45 Wisconsin, Reports. The following are the principal notes: Administration on estate of living person, 748; Attorney, rights of, as to client, 358; Contract, illegal, enforcement between parties, 106; Crime, decoying into commission of, 129; Criminal Law, intent in statutory crime, 617; Damages, liquidated or penalty, 28; Exempt Property, voluntary conveyance of, 757; Interest after maturity, 47; Lost Property, rights of finder, 180; Mortgage of crop to be planted, 63; Negligence, contributory, when defense, 190; Negligence, trespasser, 687; Negotiable Instrument, bona fide holder, purchase after default in payment of interest, 701; Partnership, sale of entire assets by one partner in payment of his individual debt, 534; Polling Jury, 497; Sale, right to recover price of fraudulent, as to creditors, 517; Surety, discharged by death of principal, 56. Several of these are very exhaustive; for example, those on administration on estate of living person; damages, liquidated or penalty; interest after maturity; contributory negligence, when a defense; partnership, sale of entire assets by one partner in payment of his individual debt; polling jury; right to recover price of sale fraudulent as to creditors. Among the very interesting cases forming the volume we note the following as of especial import ance: BAILMENT. A government mail carrier is not responsible to the owner for money stolen from the mails. Foster v. Metts, 55 Miss. 77; page 504. BANK. - A bank has no lien upon a customer's deposit for his indebtedness to the bank not yet due. Jordan v. National Shoe and Leather Bank, 74 N. Y. 467; page 319. BANKRUPTCY. - Dower is not barred by the sale of husband's land in bankruptcy. Lazear v. Porter, 87 Penn. St. 513; page 380. CARRIER.-In the absence of contract one carrier cannot maintain an action against another for failing to ship goods over the plaintiff's road which the other had brought to the point of connection, although the owners of the goods had contracted with the plaintiff to ship the goods over its road. Wilmington, etc., R. Co. v. Greenville, etc., R. Co., 9 S. C. 325; page 23. In the absence of proof of gift to the wife, the husband can recover for loss by a carrier of the wife's paraphernalia. Curtis v. Delaware, etc., R. Co., 74 N. Y. 116; page 271. A railroad company is not liable for the loss of a travelling agent's samples of merchandise received as baggage. Alling v. Boston & Albany R. Co., 126 Mass. 121; page 667. A railroad company is not liable for injury to one riding on a freight train with knowledge that the conductors were forbidden to receive passengers on freight trains, and paying no fare. Houston & Teras Cent. Ry. Co. v. Moore, 49 Tex. 31; page 98. CIVIL DAMAGE ACT. -No recovery can be had for injury to the plaintiff's means of support by the intoxication of his minor son by liquors sold by the defendant, without proof that the son's services were necessary to the father's support, or that the expenses incurred by the intoxication had so impaired the father's means as to render them inadequate for his support. Volans v. Owen, 74 N. Y. 526; page 337. The Civil Damage Act, making lessors of premises, with knowledge that they are to be used for the sale of intoxicating liquors, liable for damage caused by the act of one intoxicated by liquor sold there, is constitutional. Bertholf v. O'Reilly, 74 N. Y. 509; page 323. CONSTITUTIONAL LAW. —A sentence of a husband to two years' imprisonment for a violent and malicious assault on his wife is not a "cruel or unusual punishment." State v. Pettie, 80 N. C. 367; page 88. A statute, limiting the right of admission as attorney at law to white male citizens, is constitutional. Matter of Taylor, 48 Md. 28; page 451. A statute, imposing a penalty on railway conductors for failing to cause their trains to stop five minutes at every way station, is constitutional. Davidson v. State, 4 Tex. Ct. App. 545; page 166. CONTRACT. Under a statute authorizing school district boards to provide "necessary appendages " for school-houses, there is no authority to purchase a stereoscope and stereoscopic views. School District v. Perkins, 21 Kans. 536; page 447. A note given on the completion and settlement of an illegal business, by one of the partners therein to another, for profits thereof, is valid and enforceable. DeLeon v. Trevino, 49 Tex. 88; page 101. COVENANT. A sealed agreement, for a valuable consideration, not to make a will to the prejudice of the rights of the covenantor's heirs in his estate, is valid. Taylor v. Mitchell, 87 Penn. St. 518; page 383. CRIMINAL LAW. — The criminal offense of adul- | tery is not excused by the absence of a guilty intent, unless a guilty knowledge is part of the statutory definition, nor by the subsequent inter-marriage of the parties. For v. State, 3 Tex. Ct. App. 329; page 144. One who secretes himself in a dwelling-house at night, with intent to commit a felony therein, and being discovered, escapes by unlocking or opening a door, is not guilty of burglary. Adkinson v. State, 5 Baxt. 569; page 69. A banker, suspecting defendant of an intention of robbing his bank, employed detectives to act as decoys and induce him to enter the bank, with intent to rob it. Held, that the defendant could not be convicted of burglary. Speiden v. State, 3 Tex. Ct. App. 156; page 126. In an indictment for larceny of a coffin containing the remains of a human being, the coffin is properly charged to be the property of the person who furnished it and buried the deceased. State v. Dapke, 68 Mo. 208; page 785. An indictment for printing and publishing obscene pictures of naked girls is not sustained by proof of printing and publishing obscene pictures of girls naked only above the waist. Commonwealth v. Dejardin, 126 Mass. 46; page 652. A statute made it felony for any person, under promise of marriage, to have illicit carnal intercourse with a female infant of good repute for chastity. Held, that the promise need not be a valid one in fact, if the infant understood it to be valid. Callahan v. State, 63 Ind. 198; page 211. A person indicted for selling intoxicating liquors may show that he bought and sold the liquor with the understanding and believing that it was not intoxicating liquor. Farrell v. State, 32 Ohio St. 456; page 614. In a criminal case it is error to instruct the jury that evidence of good character is of but slight weight and entitled to but little consideration, when the proof is clear and direct. State v. Northrup, 48 Iowa, 583; page 408. | On an accusation of murder, it being claimed that certain foot-prints were those of the prisoner, the prosecuting attorney brought a pan of mud into court and placed it in front of the jury, and having proved that the mud in the pan was about as soft as that where the tracks were found, called on the prisoner to put his foot in the mud in the pan. On objection, the court instructed the prisoner that it was optional with him whether he would comply. The prisoner refused, and the court instructed the jury that his refusal was not to be taken against him. The prisoner being convicted, held, that he was entitled to a new trial. Stokes v. State, 5 Baxt. 619; page 72. On the trial of an indictment for seduction, a child, three months old, alleged to have been born of the alleged intercourse, cannot be exhibited to the jury as corroborative evidence for the prosecution on account of its resemblance to the defendant. State v. Danforth, 48 Iowa, 43; page 387. In his argument to the jury, on the trial of a felony, the defendant's counsel said in regard to a question of foot-prints, that the jury might try for themselves whether such worn-out boots as the witnesses for the prosecution described would make such tracks as they described. Some of the jury, without leave, made the experiment out of court. Held, such error as invalidated a conviction. State v. Sanders, 68 Mo. 202; page 782. DAMAGES. - In an action of assault and battery exemplary damages are not proper. Boyer v. Barr, 8 Neb. 68; page 814. EVIDENCE. The presumption of a marriage between A. and B., founded simply upon habit and repute, is overcome by proof of a subsequent actual marriage between A. and C. during the life-time of B. Jones v. Jones, 48 Md. 391; page 466. FRAUDULENT CONVEYANCE. Property exempt from execution is not susceptible of fraudulent alienation. Derby v. Weyrich, 8 Neb. 174; page 827; Carhart v. Harshaw, 45 Wis. 340; page 752. INTEREST. A contract to pay a sum certain at a future day, with interest at a conventional rate, nothing being said as to the rate of interest after the principal sum becomes due, bears interest at the conventional rate until it becomes due, and from that time, upon the aggregate of principal and interest at the legal rate. Briggs v. Winsmith, 10 S. C. 133; page 46. LANDLORD AND TENANT. — Upon leased premises, a water-pipe and gutter, not defective in their original construction, became stopped up, so that the water flowed upon the door steps of the leased house, forming ice, upon which a third person fell and was injured. As between lessor and lessee, in the absence of contract to the contrary, it is the duty of the latter to repair the pipe, or remove the ice, and for failure in this he is liable, and not the landlord. Shindelbeck v. Moon, 32 Ohio St. 264; page 584. LOST PROPERTY. The plaintiff, while engaged as an employee in the defendant's paper mill, in assorting a bale of old papers which the defendant had bought for manufacture, found a number of bank notes, in a clean unmarked envelope, in a bale, and delivered them to the defendant for the purpose of ascertaining if they were good, and upon his promise to return them. The defendant refusing to return them upon demand, held, that the plaintiff was entitled to recover their value from him. Bowen v. Sullivan, 62 Ind. 281; page 172. MARRIAGE. -A married woman may bind her separate estate by a contract for compensation of an attorney-at-law for his services in defending her interests in a legal proceeding in reference thereto or affecting the same, although the enabling statutes do not expressly authorize such employment. Porter v. Haley, 55 Miss. 66; page 502. MASTER AND SERVANT. - In an action by the administrator of an employee injured in escaping from defendant's burning mill, the court charged that if the room where the plaintiff worked was suitable, and there were proper means of extinguishing fires, and the means of egress and escape were suitable and proper, and in order and ready for use, there could be no recovery, and refused to charge that it was the defendant's duty to provide means of giving alarm in case of fire. Held, no error. Keith v. Granite Mills, 126 Mass. 121; page 666. MORTGAGE. -A mortgage of a crop to be planted is valid, the mortgagee having taken the property into his possession after it is acquired and before the rights of others as creditors or purchasers have attached thereon. Moore v. Byrum, 10 S. C. 452; page 58. - MUNICIPAL CORPORATION. -A municipal ordinance requiring occupants and owners of premises to remove snow from the adjacent sidewalks is invalid. Gridley v. City of Bloomington, 88 Ill. 554; page 566. NATIONAL BANK. State courts have jurisdiction of actions to recover illegal interest reserved by National banks upon loans. Bletz v. Columbia National Bank, 87 Penn. St. 87; page 343. NEGLIGENCE. In the absence of express contract, a carrier of passengers by hackney coaches is liable for injuries resulting from his negligence to a gratuitous passenger. Lemon v. Chanslor, 68 Mo. 340; page 799. In an action for injuries by fire to buildings adjacent to a railway, caused by negligent management or construction of the defendants' locomotives, it appeared that the plaintiff had suffered an accumulation of hay and shavings, between the buildings burned, and under one of them which was placed on blocks, with the side next the railway open. Held, that this was evidence of contributory negligence which should be submitted to the jury. Mur phy v. Chicago & North-western Railway Co., 45 Wis. 222; page 721. PARDON. The governor may annex to a pardon the condition that the recipient shall refrain from the use of intoxicating liquors as a beverage during the remainder of the term of sentence; that he shall use proper exertions for the support of his mother and sister; and that he shall not during the same time be convicted of any criminal offense in the State; and may provide that for a violation of either condition the recipient shall be liable to summary arrest upon the governor's warrant; and upon the breach of the first condition, may revoke the pardon and recommit the recipient. Arthur v. Craig, 48 Iowa, 264; page 395. PARENT AND CHILD. A father purchased and paid for a policy of insurance on his own life in the name of his daughter, and for her sole benefit, and paid the annual premiums until his death. Held, that the amount of the policy and of the annual premiums after its purchase were advancements. Rickenbacker v. Zimmerman, 10 S. C. 110; page 37. PARTNERSHIP. As against a general creditor of a solvent partnership, one of the firm, with the consent of his copartners, may in good faith make an absolute transfer of the entire partnership assets in payment of his individual debt. Schmidlapp v. Currie, 55 Miss. 97; page 530. Where a settling partner, after dissolution, gives a draft in payment of a partnership debt, he cannot waive protest so as to bind his former dormant copartner. Mauney v. Coit, 80 N. C. 300; page 80. page 706. SLANDER AND LIBEL. Falsely and maliciously calling a justice of the peace "a damned fool of a justice," is slanderous in itself. Spiering v. Andrœ, 45 Wis. 330; page 744. STATUTE. One who sells his own goods at auction is an auctioneer within the meaning of an ordinance requiring persons exercising the business of an auctioneer to be licensed. City of Goshen v. Kern, 63 Ind. 468; page 234. SUNDAY. - While the plaintiff was driving on a business errand on Sunday, the defendant's dogs barked at and frightened his horse, thereby causing an injury to the plaintiff. Held, that the plaintiff could recover damages therefor, although a statute prohibited labor on Sunday. Schmid v. Humphrey, 48 Iowa, 652; page 414. A church subscription made on Sunday is void, and is not made valid by a subsequent oral acknowledgment and promise to pay it, without consideration. Catlett v. Trustees of the M. E. Church of Sweetster Station, 62 Ind. 365; page 197. SURETY. Where a joint note is executed by a principal, and by a surety not otherwise liable, and the latter dies leaving the principal surviving, his estate is not discharged from the obligation. Susong v. Vaiden, 10 S. C. 247; page 50. WASTE. An action for waste is not defeated by the transfer of the premises pending the action by 48 Md. 583; page 492. the plaintiff to the defendant. Dickinson v. Mayor, - If a testator dies leaving an unrevoked will, which cannot be found after his death, parol evidence is competent to prove its contents, and as thus proved it may be admitted to probate. Foster's Appeal, 87 Penn. St. 67; page 340. THE THE TREATY POWER. BY SAMUEL T. SPEAR, D. D. Constitution, in article 2, section 1, declares that "the executive power shall be vested in a President of the United States of America." In enumerating the items embraced in this power, it further declares, in section 2 of the same article, that the President "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.' The power "to make treaties is the power to do or authorize to be done the several things naturally connected with the process, including negotiation, preparation, agreement upon terms, signature, exchange of ratifications, proclamation; indeed, all the formalities and steps usual in such transactions between nations. It is not a power directly to unmake, cancel, or modify treaties, but simply a power to make them; and, hence, the only way in which the President can change or abrogate existing treaties is by making other treaties that will have this effect. He has not been trusted with the power of directly annulling or repealing a treaty. A treaty, being part of the supreme law of the land, binds his action as really as it does that of courts, so long as it is in force. If repealed, except by making another treaty, the repealing process must be an exercise of legislative power. The term "treaties," as occurring in this grant of power, is used in the generic sense, and means formal contracts between two or more nations, with no enumeration of the subjects upon which the power may operate, and, as to these subjects, with no express limitation upon the exercise of this power. Chief Justice Taney, in Holmes v. Jennison, 14 Pet. 540, said: "The power to make treaties is given by the Constitution in general terms, without any description of the objects intended to be embraced; and, consequently, it was designed to include all those subjects which, in the ordinary intercourse of nations, had been made subjects of negotiation and treaty, and which are consistent with the nature of our institutions and the distribution of powers between the general and the State governments." Mr. Justice Story says: "The power to make treaties is by the Constitution general; and of course it embraces all sorts of treaties, for peace or war, for commerce or territory, for alliance or succor, for indemnity for injuries or payment of debts, for the recognition and enforcement of principles of public law, and for any other purposes which the policy or interests of independent sovereigns may dictate in their intercourse with each other." Story's Const., § 1508. The framers of the Constitution, in omitting to enumerate the things intended to be embraced in the treaty power, evidently meant to leave the exercise of this power to be settled by established usage in the intercourse of nations, taken in connection with whatever circumstances or necessities might at any time arise in the history of the United States, and also in connection with the manner in which the powers of government are distributed in this country. Hence the grant of the power was made in general terms. could not well have been more definite without impairing the usefulness and efficiency of the power. It The President, in exercising the power, is, however, subject to the advice and consent of the Senate." No treaty made by him has any validity, unless ratified by two-thirds of the Senators present at the time when the Senate acts upon the subject. The concurrence of the Senate, though subordinate and auxiliary, and never primary, in the process of making a treaty, is, nevertheless, indispensable to its completion and validity. The President cannot take the place of the Senate, and the Senate cannot take his place. Neither can exchange functions with the other. The powers of both operate independently of each other, and are distinct in the time and mode of their action. The design of thus restraining the President in the exercise of the treaty power confided to him is to protect the nation against any misuse or misapplication of the power. The Constitution, of course, makes no grant of power for its own destruction, or the violation of its own provisions; and, hence, treaties, in order to be valid as laws of the land, must be consistent with the several provisions of this instrument. On this point Mr. Justice Story observes: "But though the power is thus general and unrestricted, it is not to be so construed as to destroy the fundamental laws of the State. A power given by the Constitution cannot be construed to authorize the destruction of other powers given in the same instrument. It must be construed, therefore, in subordination to it, and cannot supersede or interfere with any other of its fundamental provisions." Story's Const., § 1508. The remark of Mr. Justice Miller, in The Loan Association v. Topeka, 20 Wall. 655, that "the theory of our government, State and National, is opposed to the deposit of unlimited power anywhere," is just as applicable to treaties as it is to the legislation of Congress. In People v. Gerke, 5 Cal. 381, it was said that the treaty power is subject to "the exceptions that necessarily flow from a proper construction of the other powers granted and those prohibited by the Constitution." In Pierce v. State, 15 N. H. 336, it was said by the court that "the political rights of the people of the several States as such are not subjects of treaty stipulations." It is conceivable that a treaty, made by the President and ratified by the Senate, might in some or all of its stipulations be repugnant to the Constitution itself; and, manifestly, such stipulations would not be entered into "under the authority of the United States." They would be usurpations of power not warranted by this authority; and it would not be the duty of Congress legislatively to provide for their execution, or of courts to treat them as laws. The only treaty power, either known to or bestowed by the Constitution, is granted to the President, subject in its exercise to the advice and consent of the Senate. Congress, as such, is not, and the President is, the grantee; and no other part of the Constitution contains the slightest intimation that the making of treaties comes within the scope of the powers of Congress. The conclusion is that the power is exclusively lodged with the President, in connection with the Senate, and that any attempt to substituto the action of Congress for that of the President in the making of treaties, or to do, by legislation or by joint resolutions of the two houses of Congress, what can only be done by the treaty power, would, if successful, be subversive of the Constitution itself. Congress can declare war and provide by law for its prosecution; but it cannot make a treaty of peace. There is no doubt that the President may, by a treaty, acquire new territory, and thus incorporate both the territory and its inhabitants into the Union. But the Constitution nowhere bestows this power upon Congress. The power of Congress to admit "new States" into the Union relates to States formed by a division or junction of States already in the Union, or to States organized out of territory belonging to the United States, and not to foreign States. The annexation of Texas by a joint resolution of the two houses of Congress was in effect an exercise of the treaty power by Congress, without any warrant therefor in the Constitution. The resolution was passed in the Senate by a majority of only two, which is much less than [the majority necessary to ratify a treaty. |