The Albany Law Journal. ALBANY, JUNE 1, 1895. Current Topics. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] ON Monday, the 27th day of May, the Court the first time in its history, was called upon to exercise the power conferred on them by the Code of Criminal Procedure, to fix a time for the execution of Robert W. Buchanan. The scene was impressive, and one which will long be remembered by those who attended the proceedings. There seemed to be unusual dignity and solemnity in the bearing of the judges of the court, who appeared to feel the peculiar power which they were called upon to exercise for the first time. They have undoubtedly appreciated in many cases how the life of an individual hung upon the affirmance or the reversal of a former judgment, but they have never before come into contact with and been face to face with the prisoner whose life was to be taken in order to maintain the dignity and majesty of the laws of the State of New York. The morbid curiosity of the crowd was sadly in contrast with the dignity of the court and the deathly pallor of the condemned man. moval of the sick juror from the room in which he and his fellow jurors were dining together, the other jurors separated; some running to and from the sick man's room and others going in other directions and alone. In opposition were read the affidavits of the jurors and of the court officers, to the effect that the jurors were always in charge of the officers; that none of them were ever alone, and that no commu N Monday, the 27th day of May, the Court nication was had with them by any person in reference to the case. Upon these proofs, it was discretionary with the trial court to order a new trial or not, and with the exercise of its discretion we will not interfere. Code Crim. Proc., 465, subd. 3. It was a question of fact, and I think the judicial discretion of the learned recorder was well exercised in having regarded the involuntary separation of the jurors as working no possible prejudice to the defendant. The second branch of the motion for a new trial was passed on the ground that the attack which the juror (Paradise) suffered from was an expression of a generally deranged judgment, and that his mind could not have been clear and sound, or capable of judgment, for some hours before and after. In support of that ground, the affidavits of several distinguished physicians and alienists were produced and read. It was their opinion, upon the statement of the physician who attended the said juror, of the juror's son and of others detailing what had occurred, that the attack was epileptic in character. They, in substance, thought it evidenced a confirmed epileptic condition, and indicated a mental disturbance which must have existed for several hours, and must have rendered his mental action unreliable and valueless. In opposition to these opinions were read affidavits by several other physicians, expert in mental diseases, who had made a personal examination of the juror, and who gave it as their opinion that there was no perceptible indication of epilepsy, or of paresis, and that he was in full possession of his faculties. Upon Paradise's statements as to his past life, they were of the opinion that he had never suffered from epilepsy or insanity. They thought the symptoms of his attack were those of nervous exhaustion and of hysteria, induced by the close confinement and the long continued strain upon him in the performance of his duties as a Perhaps the most unusual feature in relation to the Buchanan case was the number of legal proceedings which were instituted on behalf of the prisoner. In a recent decision of the United States Supreme Court the facts in relation to the deliberations of the jurors were brought out. As stated in the opinion of Mr. Chief Justice Fuller, they are as follows: "Subsequently, however, upon the hearing of the motion for a new trial, certain other facts were made to appear, which we have considered carefully, with the view of ascertaining whether they furnish any sufficient reason for believing that the verdict of the jury was not properly or fairly reached. One branch of the motion was based on the ground that there had been an illegal separation of the jurors. Affidavits were read, showing that upon the reVOL. 51 No. 22. juror. His own affidavit was read, denying ever having suffered from epileptic attacks. He narrated the occurrences in the jury room, and stated that after the first ballot, when he had voted 'not guilty,' he had upon each subsequent ballot voted 'guilty,' and that the jury had agreed upon their verdict before they went to the hotel for their meal. He stated that he felt well when he came back to court and was able to deliberate. He gave the facts about his past life, and he showed that the day after the conclusion of the trial he had gone away on business and remained away until June, being in the full possession of his health and faculties. The affidavits of physicians, who had known and attended him in the past, stated that he had never manifested any epileptic symptoms, or any form of nervous disease. Other affidavits, by his employer and by his fellow jurors, were read to show his mental competency. "It is not yet clear what will be the effect of Judge Goff's decision in the United States Circuit Court declaring unconstitutional the registration laws of South Carolina, and forbidding the State to take any further action under those laws. The governor has announced his intention to appeal to the Supreme Court while still preparing for the convention. The Columbia State, organ of the conservative Democrats, points out that the injunction does not apply to the managers of the election, and predicts that the Tillman-Evans element will instruct these managers to go ahead and refuse to receive the ballots of unregistered voters. This would make the election illegal, and as the Tillmanites can hardly expect to control a convention legally elected, the State thinks that they would be glad to escape from the dilemma in this way. Tillman, however, predicts that the convention will be held, and that it will be composed of white men principally, who will take care of South Carolina, and see that white supremacy "The recorder, in denying a new trial, had before him the conflicting opinions of the ex-is maintained within its borders.' Governor perts, the facts stated in the affidavits and those within his own observation. It cannot be said that the defendant made out a case of mental incompetency in the juror. While the opinions of the physicians, secured by him, seemed to give support to his theory of a mental or nervous disease in the juror, which incapacitated him to deliberate or confer upon his case, they were not based upon any personal examination, but were premised upon the statements given them. In view of the evidence as to his physical and mental condition upon actual examination, as to the facts of his past life and of his condition for weeks after the trial, the learned recorder could not well have decided otherwise than he did, and I think we must agree with him that the opinions of the experts for the people were warranted by the evidence, and that those of the defendant's experts were not." There appears to be considerable difficulty arising from the conflict of decisions of the United States courts and the interests of the State authorities, who in many instances show much energy in trying to avoid the operation of the judgments of the United States tribunals. In the first case to which our attention has been called The Nation very tersely sums up the situation, thus: Evans has issued a fire-eating proclamation of defiance, 'Constitution or no Constitution, law or no law, court or no court.' The leaders of the negroes, however, talk very sensibly. An address issued by the officers of the Colored Ministerial Union says that they will 'vote for and with our white friends for good government, seeking only for that minority representation which any reasonable white man will accord us,' and that they recognize the fact that intelligence and money must rule.' Continuing on the South Carolina crisis, The Nation says: visions of the dispensary act as in violation of the interstate commerce law, would be important enough to engage general attention, but it sinks into insignificance in comparison with the broader questions and wider consequences involved in the other case. Every citizen of every State is concerned in this latter decision, because the whole issue of State rights is bound up in it. "The present Constitution was adopted in 1868, during the reconstruction era, when the carpet-baggers and negroes were on top;' and although there has been agitation for a new one ever since the native whites resumed control in 1876-'77, no steps were taken in that direction until Tillman came into power. The last legislature passed an act providing that an election for delegates to a constitutional convention should be held on the third Tuesday in August next, and that the body should meet on the second Tuesday in September. Certain citizens of South Carolina last month applied to the Circuit Court of the United States for an injunction to restrain the State officials from taking further action under the registration and election laws, on the ground that those laws are in violation both of the State Constitution and of the Federal Constitution. Judge Goff granted a temporary injunction, and on May 8 made it permanent. The "The chief points of attack were two. State Constitution provides that 'every inhabitant possessing the qualifications provided for in this Constitution shall have an equal right to elect officers.' The qualifications are that one shall be a male citizen of the United States twenty-one years old, a resident of the State one year, and of the county in which he offers to vote sixty days, next preceding the election. The Constitution further provides that the right of suffrage shall be protected by laws regulating elections,' and that it shall be the duty of the general assembly to provide, from time to time, for the registration of all electors.' "In 1882 a registration act was enacted, which still remains on the statute book, and which was enlarged by amendments passed in 1893 and 1894. The practical effect of these provisions is that, for an ordinary election occurring in November, registration ceases early in July (except for those afterwards coming of age), which operates to require a residence in the county of 120 days-in violation, as is contended, of the constitutional requirement of only sixty days' residence. For the election of next August, registration was to be allowed until a month previous, but the difficulties put in the way of getting on the roll the name of any man objectionable to the supervisor are almost incredibly great. A man who is once registered must preserve the certificate then given him and show it at the polls as a condition of voting-which, it is alleged, is a new qualification for the exercise of the suffrage not warranted by the Constitution. If he moves, not simply from one county to another, but even from one precinct to another, and even from one residence to another in the same precinct, he must surrender his old certificate and If he loses his certificate, he get a new one. can get a new one only by proving to the satisfaction of the supervisor, upon such evidence as the latter may require, that he really lost it, and has not destroyed or sold it. If he has never been registered, he must make an affidavit setting forth his full name, age, occupation, and residence when the act of 1882 was passed, or at any time thereafter when he became old enough to vote," and the place or places of his residence since the time when he became entitled to register;" and this must be supported by the affidavits of two "reputable" citizens who were each twenty-one years old in 1882, or at the time when the applicant became entitled to register. These, and sundry other provisions unnecessary to chronicle, are, it is held, in violation of the State Constitution, as establishing qualifications for the suffrage not required or warranted by that instrument. "The other chief point is the claim that these State laws violate the Federal Constitution. The latter provides that the electors of the lower branch of Congress in each State 'shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.' These qualifications, it is contended, must be set down in the State Constitution, and any attempt by State law to establish other qualifications, violates the right of the citizen to vote for members of Congress, and so is obnoxious to the Federal Constitution. The fifteenth amendment forbids any abridgment of the right of citizens of the United States to vote CONDITIONS PRECEDENT OR SUBSE- A CONDITION is something required to be done in the acquisition or retention of some right or estate. It is evident from the adjudications that a condition may be created by contract, or found inherent in the nature of the matter, or by reasonable implication from the circumstances. Conditions, therefore, arising from contract are defined as express or in deed, or existing by operation of law, are termed implied or in law. The term 'on account of race, color, or previous condition of servitude.' While the registration law in question does not specifically discriminate against the negro, its rigorous provisions regarding the procurement of a certificate, its preservation, and its restoration if lost, are notoriously directed against the ignorant and migratory blacks. A justification for an appeal to the Federal judiciary is found in the provision of the Federal Constitution, that the United States shall guarantee to every State in this Union a republican form of government,' and in the contention that the practical effect expressing a writing, for when founded upon consideration, a promise is in the nature of a verbal of the registration laws of South Carolina is to put that State under the rule of a white olig- writing and sealing to make it absolutely the same. covenant, and wants nothing but the solemnity of archy. 66 66 contract is not used as invariably If, therefore, it be to do any explicit act, it is an Juillard v. Chaffee, 92 id. 529, 535; Sands v. Crook, "The main reliance of the attorneys on the other side was the argument that the action was virtually directed against the State, and so was forbidden by the eleventh amendment, declar-id. 654; Engelhorn v. Retlinger, 122 id. 76, 80; ing that the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State,' though the present action, it will be observed, was brought by citizens of the State itself. It was also argued that the matters complained of were political rather than judicial, and consequently not the subject of judicial cognizance, and that adequate remedies for any grievance might be obtained at law in the State courts. Judge Goff, however, brushed these contentions aside, and made the injunction permanent on the ground of the unconstitutionality of the registration laws. | It has been said that a condition cannot be annexed by parol to an instrument that is absolute in its terms, nevertheless the rule is well established that a writing which in form is a complete contract, of which there has been a manual tradition also, may not, however, become a binding contract until the performance of some condition resting in parol. (Reynolds v. Robinson, 110 N. Y. 654; Thomas v. Scutt, 127 id. 133, 137, 138; Blewitt v. Boorum, 142 id. 357, 365.) Thus, a deed unconditional upon its face may be shown by parol to be subject to defeasance, having been intended as a mortgage merely, although no fraud or mistake existed. (Odell v. Montross, 68 N. Y. 499, 502, 503; Horn v. Keteltas, 46 id. 605, 609; Barry v. Colville, 129 id. 306; Clark v. Henry, 2 Cow. [N. Y.] 324, 332; Thomas v. Scutt, 127 N. Y. 140.) "The case will, no doubt, be carried up to the Supreme Court of the United States. Unless, however, there is immediate action, and that tribunal takes up the question out of order, no decision can be reached until next autumn, as the court's summer recess is near at hand. In that case, the election for members of the con- In the expression of conditions the law has not vention cannot be held, unless the governor at thus far appropriated any set form of words as abonce summons the Legislature in special session solutely necessary. The words "upon condition,” to pass a new registration law. Gov. Evans, 'provided," "if it shall so happen," "so that,” who seems as youthful in mind as in years, at upon the consideration,' ,""subject to the condition," ," "and if," or others have been declared apfirst declared that he should treat the proceed-propriate to a condition, a limitation or a covenant, ing with the contempt it deserved,' but he has the words used not being conclusive. (Craig v. learned something during the past fortnight, Wells, 11 N. Y. 315, 320; Gibert v. Peteler, 38 id. and now announces that we will take no 165, 168; Post v. Weill, 115 id. 361, 369, 370; action without mature deliberation.'" Avery v. R. R. Co. 106 id. 142, 154; Graves v. 66 1 Deterling, 120 id. 447, 456, 457; Rich v. Atwater, 16 Conn. 419; 57 Mass. [3 Cush.] 285.) Conditions never exist merely from the use of technical or precise phraseology or formal arrangement of words. It is a maxim of the law that "he who considers merely the letter of an instrument goes but skin deep into its meaning." (Hay v. Ins. Co., 77 N. Y. 244.) Indeed, "technical words may be overlooked where they do not inevitably evidence the intention of the parties" (Post v. Weill, 115 N. Y. 361, 366, 371; Graves v. Deterling, 120 id. 447, 456, 457), and that which is a condition must be some substantial provision, which cannot be severed from the agreement, and leave the balance, within any fair interpretation, as the contract of the parties. The question must, therefore, "depend upon the intention of the parties, to be collected in each particular case, from the terms of the agreement itself and from the subject-matter to which it relates (Glaholm v. Hays, 2 M. & G. 257, 266; Barruso v. Madan, 2 Johns. 145, 148; Tipton v. Feitner, 20 N. Y. 423, 431, 432; Towle v. Remsen, 70 id. 303, 311, 322; Bank of M. v. Recknagel, 109 id. 482, 491; Coleman v. Beach, 97 id. 545, 553, 554; Schnorer v. Market Ass'n, 99 Mass. 285), considering, also, the circumstances surrounding the subject of the agreement, the situation and relations of the parties, the nature of the acts provided for (Lyon v. Hersey, 103 N. Y. 264, 270; Post v. Weill, 115 id. 361, 369, 370, 375; Avery v. R. R. Co., 106 id. 142, 154, 155; Blossom v. Griffin, 13 id. 569, 574; French v. Carhart, 1 id. 96, 102; Coleman v. Beach, 97 id. 545, 553, 554; Bromley v. U. S., 96 U. S. 168, 173, 174; Merriam v. U. S., 107 id. 437, 441; U. S. v. Gibbons, 109 id. 200, 203; Wiiliamson v. McClure, 37 Penn. St. 402; Kencken v. Voltz, 110 Ill. 264; Tracy v. Chicago, 24 id. 500; Graves v. Legg, 9 Exch. 709, 715), and "in the light of the cardinal rule that a writing contains all that may fairly be implied from it." (Jones v. Kent, 80 N. Y. 585, 588; Booth v. Mill Co., 74 id. 15, 21; Jugla v. Trouett, 120 id. 21, 27, 28; Gelpe v. Dubuque, 1 Wall. [U. S.] 222; Robbins v. Rollins, 127 U. S. 622, 623.) That course leads directly to the additional conclusion that something required of one party precedes or follows that of the other party, thereby causing the division of conditions precedent or subsequent. Coined from existing authorities, the Civil Code of California states "a condition precedent is one which is to. be performed before some right dependent thereon accrues, or some act dependent thereon is to be performed," and a condition subsequent is one referring to a future event, upon the happening of which the obligation be comes no longer binding upon the other party, if he chooses to avail himself of the condition." (§§ 1436, 1438.) There are no technical words, however, to distinguish one from the other, and whether the requirement or stipulation be a condition precedent or subsequent is a question of construction, not always readily determined by fixed rules, though the rules for finding the intention of the parties are the same as those in regard to covenants. (Parmlee v. R. R. Co., 6 N. Y. 74, 80.) "There are," says Lord Mansfield, "three kinds of covenants; first, such as as called mutual and independent, where either party may recover damages from the other for the injury he may have received by a breach of the covenants in his favor, and where it is no excuse for the defendant to allege a breach of the covenants on the part of the plaintiff; secondly, there are covenants which are conditional and dependent, in which the performance of one depends on the prior performance of another, and therefore till the prior condition is performed the other party is not liable to an action on his covenant; there is also a third sort of covenants, which are mutual conditions to be performed at the same time, and in these, if one party was ready, and offered to perform his part, and the other neglected or refused to perform his, he who was ready and offered has fulfilled his engagement, and may maintain an action for the default of the other, though it is not certain that either is obliged to do the first act." (Kingston v. Preston, cited, 2 Doug. 689, 690; Lester v. Jewett, 11 N. Y. 453, 457.) As declared by the same learned jurist, "the dependence or independence of covenants is to be collected from the evident sense and meaning of the parties, and that however transposed they might be in the deed, their precedency must depend on the order of time in which the intent of the transaction requires their performance." (Jones v. Barkley, 2 Doug. 684, 691; Havelock v. Geddes, 10 East, 555, 563; Fishmongers Co. v. Robertson, 5 M. & G. 131, 197; Seeger v. Duthie, 8 C. B. [N. S.] 45, 74; Grant v. Johnson, 5 N. Y. 247, 250; Parmlee v. R. R. Co., 6 id. 74, 80; Lester v. Jewett, 11 id. 453, 457, 458; Tipton v. Feitner, 20 id. 423, 425; Paine v. Brown, 37 id. 228, 232, 233; Post v. Weill, 115 id. 361, 370; Seeden v. Pringle, 17 Barb. [N.Y.] 458; Dox v. Dey, 3 Wend. 357, 359; Gardner v. Corson, 15 Mass. 499, 503; Tileston v. Newell, 13 id. 271, 287: Knight v. Worsted Co., 56 id. [2 Cush.] 271, 287; Cadwell v. Blake, 72 id. [6 Gray] 402; 407; Schewerer v. Market Ass'n, 99 id. 285, 298; Sears v. Fuller, 137 id. 326; Philips v. Car Co., 82 Penn. St. 368; Leonard v. Dyer, 26 Conn. 172, 176; Smith v. Lewis, id. 110; Kettle v. Harvey, 21 Vt. 301, 305; Sewall v. Wilkins, 14 Me. |