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moval of the sick juror from the room in which The Albany Law Journal.
he and his fellow jurors were dining together, ALBANY, JUNE 1, 1895.
the other jurors separated; some running to
and from the sick man's room and others going Current Lopics.
in other directions and alone. In opposition
were read the affidavits of the jurors and of (All communications intended for the Editor should be adJressed simply to the Editor of THE ALBANY LAW JOURNAL. the court officers, to the effect that the jurors All letters relating to advertisements, subscriptions, or other
were always in charge of the officers; that none business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]
of them were ever alone, and that no commuN Monday, the 27th day of May, the Court nication was had with them by any person in
Upon these proofs, it of Appeals of the State of New York, for reference to the case. the first time in its history, was called upon to
was discretionary with the trial court to order exercise the power conferred on them by the
a new trial or not, and with the exercise of its Code of Criminal Procedure, to fix a time for discretion we will not interfere. Code Crim. the execution of Robert W. Buchanan. The
Proc., § 465, subd. 3. It was a question of scene was impressive, and one which will long fact
, and I think the judicial discretion of the be remembered by those who attended the pro
learned recorder was well exercised in having ceedings. There seemed to be unusual dignity regarded the involuntary separation of the and solemnity in the bearing of the judges of jurors as working no possible prejudice to the the court, who appeared to feel the peculiar defendant. The second branch of the motion power which they were called upon to exercise for a new trial was passed on the ground that for the first time. They have undoubtedly ap- the attack which the juror (Paradise) suffered preciated in many cases how the life of an in- from was an expression of a generally deranged dividual hung upon the affirmance or the reversal judgment, and that his mind could not have of a former judgment, but they have never be-been clear and sound, or capable of judgment, fore come into contact with and been face to face for some hours before and after.
In support with the prisoner whose life was to be taken in of that ground, the affidavits of several distinorder to maintain the dignity and majesty of guished physicians and alienists were produced the laws of the State of New York. The mor- and read. It was their opinion, upon the statebid curiosity of the crowd was sadly in contrast ment of the physician who attended the said with the dignity of the court and the deathly juror, of the juror's son and of others detailing pallor of the condemned man.
what had occurred, that the attack was epileptic
in character. They, in substance, thought it Perhaps the most unusual feature in relation evidenced a confirmed epileptic condition, and to the Buchanan case was the number of legal indicated a mental disturbance which must proceedings which were instituted on behalf of have existed for several hours, and must have the prisoner. In a recent decision of the rendered his mental action unreliable and valUnited States Supreme Court the facts in rela- ueless. In opposition to these opinions were tion to the deliberations of the jurors were read affidavits by several other physicians, exbrought out. As stated in the opinion of Mr. pert in mental diseases, who had made a perChief Justice Fuller, they are as follows: sonal examination of the juror, and who gave
“Subsequently, however, upon the hearing of it as their opinion that there was no perceptithe motion for a new trial, certain other facts ble indication of epilepsy, or of paresis, and were made to appear, which we have consid that he was in full possession of his faculties. ered carefully, with the view of ascertaining Upon Paradise's statements as to his past life, whether they furnish any sufficient reason for they were of the opinion that he had never sufbelieving that the verdict of the jury was not fered from epilepsy or insanity. They thought properly or fairly reached. One branch of the the symptoms of his attack were those of nervmotion was based on the ground that there had ous exhaustion and of hysteria, induced by the been an illegal separation of the jurors. Affi- close confinement and the long continued strain davits were read, showing that upon the re- upon him in the performance of his duties as a
VOL. 51 - No. 22.
juror. His own affidavit was read, denying “ It is not yet clear what will be the effect of ever having suffered from epileptic attacks. Judge Goff's decision in the United States Cir. He narrated the occurrences in the jury room, cuit Court declaring unconstitutional the regisand stated that after the first ballot, when he tration laws of South Carolina, and forbidding had voted ‘not guilty,' he had upon each sub- the State to take any further action under those sequent ballot voted 'guilty,' and that the jury laws. The governor has announced his intenhad agreed upon their verdict before they went tion to appeal to the Supreme Court while still to the hotel for their meal. He stated that he preparing for the convention. The Columbia felt well when he came back to court and was State, organ of the conservative Democrats, able to deliberate. He gave the facts about his points out that the injunction does not apply past lise, and he showed that the day after the to the managers of the election, and predicts conclusion of the trial he had gone away on that the Tillman-Evans element will instruct business and remained away until June, being these managers to go ahead and refuse to receive in the full possession of his health and facul- the ballots of unregistered voters. This would ties. The affidavits of physicians, who had make the election illegal, and as the Tillmanknown and attended him in the past, stated ites can hardly expect to control a convention that he had never manifested any epileptic legally elected, the State thinks that they would symptoms, or any form of nervous disease. be giad to escape from the dilemma in this way. Other affidavits, by his employer and by his | Tillman, however, predicts that the convention fellow jurors, were read to show his mental will be held, and that “it will be composed of competency.
white men principally, who will take care of “The recorder, in denying a new trial, had South Carolina, and see that white supremacy before him the conflicting opinions of the ex-l is maintained within its borders.' Governor perts, the facts stated in the affidavits and those Evans has issued a fire-eating proclamation of within his own observation. It cannot be said defiance, ‘Constitution or no Constitution, law or that the defendant made out a case of mental
no law, court or no court.' The leaders of the incompetency in the juror. While the opinions negroes, however, talk very sensibiy. An adof the physicians, secured by him, seemed to dress issued by the officers of the Colored Mingive support to his theory of a mental or nervous disease in the juror, which incapacitated with our white friends for good government,
isterial Union says that they will ‘vote for and him to deliberate or confer upon his case, they seeking only for that minority representation were not based upon any personal examination,
any reasonable white man will accord but were premised upon the statements given them. In view of the evidence as to his physi
: us,' and that they “recognize the fact that incal and mental condition upon actual examina
telligence and money must rule.' tion, as to the facts of his past life and of his
Continuing on the South Carolina crisis, The
Nation condition for weeks after the trial, the learned
says: recorder could not well have decided otherwise “It is a singular coincidence that the State 'than he did, and I think we must agree with should again bring to the test another question him that the opinions of the experts for the of hardly inferior importance — the question people were warranted by the evidence, and
how far the government of the United States,
interfere that those of the defendant's experts were not." under the amended Constitution,
with the processes of State laws when those There appears to be considerable difficulty laws affect the highest prerogative of a State in arising from the conflict of decisions of the the formation of a constitution for the commonUnited States courts and the interests of the wealth. For this is the issue that has been beState authorities, who in many instances show fore Judge Goff in the United States Circuit much energy in trying to avoid the operation of Court at Columbia, and was passed upon by him the judgments of the United States tribunals. on Wednesday week. In the first case to which our attention has been “By itself, the decision of Judge Simonton, called The Nation very tersely sums up the situ- another Federal judge, at Columbia on the ation, thus:
same day, practically annulling essential pro
up in it.
visions of the dispensary act as in violation of age), which operates to require a residence in the interstate commerce law, would be import- the county of 120 days — in violation, as is ant enough to engage general attention, but it contended, of the constitutional requirement of sinks into insignificance in comparison with the only sixty days' residence. For the election broader questions and wider consequences in- of next August, registration was to be allowed volved in the other case. Every citizen of until a month previous, but the difficulties put every State is concerned in this latter decision, in the way of getting on the roll the name of because the whole issue of State rights is bound any man objectionable to the supervisor are
almost incredibly great. A man who is once “The present Constitution was adopted in registered must preserve the certificate then 1868, during the reconstruction era, when the given him and show it at the polls as a condicarpet-baggers and negroes were on top;' and tion of voting — which, it is alleged, is a new although there has been agitation for a new qualification for the exercise of the suffrage not one ever since the native whites resumed con- warranted by the Constitution. If he moves, trol in 1876-'77, no steps were taken in that not simply from one county to another, but direction until Tillman came into power. The
even from one precinct to another, and even last legislature passed an act providing that an
from one residence to another in the same preelection for delegates to a constitutional con
cinct, he must surrender his old certificate and vention should be held on the third Tuesday in get a new one.
If he loses his certificate, he August next, and that the body should meet on can get a new one only by proving to the satisthe second Tuesday in September. Certain faction of the supervisor, upon such evidence citizens of South Carolina last month applied to as the latter may require, that he really lost it, the Circuit Court of the United States for an
and has not destroyed or sold it. If he has injunction to restrain the State officials from never been registered, he must make an affidataking further action under the registration and vit setting forth his full name, age, occupation, election laws, on the ground that those laws are
and residence when the act of 1882 was passed, in violation both of the State Constitution and
or at any time thereafter when he became old of the Federal Constitution. Judge Goff enough to vote," and the place or places of his granted a temporary injunction, and on May 8 residence since the time when he became enmade it permanent.
titled to register;" and this must be supported
by the affidavits of two “reputable” citizens “ The chief points of attack were two. The
who were each twenty-one years old in 1882, or State Constitution provides that every inhabit
at the time when the applicant became entitled ant possessing the qualifications provided for in
to register. These, and sundry other provisions this Constitution shall have an equal right to unnecessary to chronicle, are, it is held, in vioelect officers.' The qualifications are that one lation of the State Constitution, as establishing shall be a male citizen of the United States qualifications for the suffrage not required or twenty-one years old, a resident of the State warranted by that instrument. one year, and of the county in which he offers
“The other chief point is the claim that these to vote sixty days, next preceding the election. State laws violate the Federal Constitution. The Constitution further provides that “the The latter provides that the electors of the right of suffrage shall be protected by laws lower branch of Congress in each State 'shall regulating elections, and that it shall be the have the qualifications requisite for electors of duty of the general assembly to provide, from the most numerous branch of the State Legistime to time, for the registration of all clectors.' lature.' These qualifications, it is contended,
“In 1882 a registration act was enacted, which must be set down in the State Constitution, and still remains on the statute book, and which any attempt by State law to establish other was enlarged by amendments passed in 1893 qualifications, violates the right of the citizen and 1894. The practical effect of these pro- to vote for members of Congress, and so is obvisions is that, for an ordinary election occur- noxious to the Federal Constitution. The fifring in November, registration ceases early in teenth amendment forbids any abridgment of July (except for those afterwards coming of the right of citizens of the United States to vote
'on account of race, color, or previous condi- CONDITIONS PRECEDENT OR SUBSEtion of servitude. While the registration law
QUENT in question does not specifically discriminate
A against the negro, its rigorous provisions re
CONDITION is something required to be done
in the acquisition or retention of some right garding the procurement of a certificate, its
or estate. It is evident from the adjudications that preservation, and its restoration if lost, are no
a condition may be created by contract, or sound toriously directed against the ignorant and mi- inherent in the nature of the matter, or by reasongratory blacks.
A justification for an appeal able implication from the circumstances. Condito the Federal judiciary is found in the pro- tions, therefore, arising from contract are defined as vision of the Federal Constitution, that 'the express or in deed, or existing by operation of law, United States shall guarantee to every State in
are termed implied or in law. this Union a republican form of government,'
The term “contract is not used as invariably and in the contention that the practical effect expressing a writing, for when founded upon conof the registration laws of South Carolina is to sideration, “ a promise is in the nature of a verbal put that State under the rule of a white olig- writing and sealing to make it absolutely the same.
covenant, and wants nothing but tlie solemnity of archy.
If, therefore, it be to do any explicit act, it is an “The main reliance of the attorneys on the
express contract as much as any covenant." (2 other side was the argument that the action was
Blackstone Com. [Cooley's ed.), 157; McCreery v. virtually directed against the State, and so was Day, 119 N. Y. 1, 8, 9; Reynolds v. Robinson, 110 forbidden by the eleventh amendment, declar- id. 654; Engelhorn v. Retlinger, 122 id. 76, 80; ing that 'the judicial power of the United Juillard v. Chaffee, 92 id. 529, 535; Sands v. Crook, States shall not be construed to extend to any 46 id. 564, 570; Trustees v. Lynch, 70 id. 440, 447; suit in law or equity commenced or prosecuted Wilson v. Powers, 131 Mass. 539; Wendlinger v. against one of the United States by citizens of Smith, 75 Va. 309; Westman v. Kramweide, 30 another State, or by citizens or subjects of any
Minn. 313; Michels v. Oldsted, 14 Fed. Rep. 219;
Wallis v. Litell, 11 C. B. (N. S.] 369.) foreign State,' though the present action, it
It has been said that a condition cannot be anwill be observed, was brought by citizens of the
nexed by parol to an instrument that is absolute in State itself. It was also argued that the mat
its terms, nevertheless the rule is well established ters complained of were political rather than that a writing which in form is a complete contract, judicial, and consequently not the subject of of which there has been a manual tradition also, judicial cognizance, and that adequate reme
may not, however, become a binding contract until dies for any grievance might be obtained at
the performance of some condition resting in parol. law in the State courts. Judge Goff, however, (Reynolds v. Robinson, 110 N. Y. 654; Thomas v. brushed these contentions aside, and made the Scutt, 127 id. 133, 137, 1:38; Blewitt v. Boorum, 112 injunction permanent on the ground of the un- id. 357, 365.) constitutionality of the registration laws.
Thus, a deed unconditional upon its face may be “The case will, no doubt, be carried up to the shown by parol to be subject to defensance, having Supreme Court of the United States. Unless, been intended as a mortgage merely, although no
fraud or mistake existed. (Odell v. Montross, 68 however, there is immediate action, and that
N. Y. 499, 502, 503; Horn v. Keteltas, 46 id. tribunal takes up the question out of order, no
605, 609; Barry v. Colville, 129 id. 306; Clark v. decision can be reached until next autumn, as
Henry, 2 Cow. (N. Y.] 324, 332; Thomas v. Scutt, the court's summer recess is near at hand. In 127 N. Y. 140.) that case, the election for members of the con- In the expression of conditions the law bas not vention cannot be held, unless the governor at
thus far appropriated any set form of words as allonce 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.
Deterling, 120 id. 447, 456, 457; Rich v. Atwater, comes no longer binding upon the other party, if 16 Conn. 419; 57 Mass. [3 Cush.] 285.)
he chooses to avail himself of the condition." Conditions never exist merely from the use of ($S 1436, 1438.) technical or precise phraseulogy or formal arrange- There are no technical words, however, to distinment of words. It is a maxim of the law that “he guish one from the other, and whether the requirewho considers merely the letter of an instrument ment or stipulation be a condition precedent or subgoes but skin deep into its meaning." (Hay v. Ins. sequent is a question of construction, not always Co., 77 N. Y. 244.) Indeed, “ technical words may readily determined by fixed rules, though the rules be overlooked where they do not inevitably evi. for finding the intention of the parties are the same dence the intention of the parties” (Post v. Weill, as those in regard to covenants. (Parınlee v. R. R. 115 N. Y. 361, 366, 371; Graves v. Deterling, 120 Co., 6 N. Y. 74, 80.) id. 447, 456, 457), and that which is a condition “There are,” says Lord Mansfield, “three kinds must be some substantial provision, which cannot of covenants; first, such as as called mutual and inbe severed from the agreement, and leave the bal- dependent, where either party may recover damages ance, within any fair interpretation, as the contract from the other for the injury he may have received of the parties.
by a breach of the covenants in his favor, and The question must, therefore, “depend upon the where it is no excuse for the defendant to allege a intention of the parties, to be collected in each par- breach of the covenants on the part of the plaintiff ; ticular case, from the terms of the agreement itself secondly, there are covenants which are conditional and from the subject matter to which it relates " and dependent, in which the performance of one (Glaholm v. Hays, 2 M. & G. 257, 266; Barruso v. depends on the prior performance of another, and Madan, 2 Johns. 145, 148; Tipton v. Feitner, 20 n. therefore till the prior condition is performed the Y. 423, 431, 432; Towle v. Remsen, 70 id. 303, 311, other party is not liable to an action on his cove322; Bank of M. v. Recknagel, 109 id. 482, 491; nant; there is also a third sort of covenants, which Coleman v. Beach, 97 id, 545, 553, 554; Schnorer are mutual conditions to be performed at the same v. Market Ass'n, 99 Mass. 285), considering, also, time, and in these, if one party was ready, and ofthe circumstances surrounding the subject of the fered to perform his part, and the other neglected agreement, the situation and relations of the par- or refused to perform his, he who was ready and ties, the nature of the acts provided for (Lyon v. offered has fulfilled his engagement, and may mainHersey, 103 N. Y. 264, 270; Post v. Weill, 115 id. tain an action for the default of the other, though 361, 369, 370, 375; Avery v. R. R. Co., 106 id. 142, it is not certain that either is obliged to do the first 154, 155; Blossom v. Griffin, 13 id. 569, 574; act.” (Kingston v. Preston, cited, 2 Doug. 689, French v. Carhart, 1 id. 98, 102; Coleman v. Beach, 690; Lester v. Jewett, 11 N. Y. 453, 457.) 97 id. 545, 553, 554; Bromley v. U. S., 96 U. S. 168, As declared by the same learned jurist, “the de173, 174; Merriam v. U. S., 107 id. 437, 441; U. S. pendence or independence of covenants is to be v. Gibbons, 109 id. 200, 203; Wiiliamson v. Mc-collected from the evident sense and meaning of Clure, 37 Penn. St. 402; Kencken v. Voltz, 110 Ill. the parties, and that however transposed they might 264; Tracy v. Chicago, 24 id. 500; Graves v. Legg, be in the deed, their precedency must depend on 9 Exch. 709, 715), and "in the light of the cardi- the order of time in which the intent of the transnal rule that a writing contains all that may fairly action requires their performance.” (Jones v. Barkbe implied from it.” (Jones v. Kent, 80 N. Y. 585, ley, 2 Doug. 684, 691; Havelock v. Geddes, 10 588; Booth v. Mill Co., 74 id. 15, 21; Jugla v. East, 555, 563; Fishmongers Co. v. Robertson, 5 Trouett, 120 id. 21, 27, 28; Gelpe v. Dubuque, 1 M. & G. 13i, 197; Seeger v. Duthie, 8 C. B. [N. S.] Wall. [U. S.] 222; Robbins v. Rollins, 127 U. S. 45, 74; Grant v. Jolinson, 5 N. Y. 247, 250; Parm622, 623.)
lee v. R. R. Co., 6 id. 74, 80: Lester v. Jewett, 11 That course leads directly to the additional con- id. 453, 457, 458; Tipton v. Feitner, 20 id. 423, 425; clusion that something required of one party pre- | Paine v. Brown, 37 id. 228, 232, 233; Post v. Weill, cedes or follows that of the other party, thereby 115 id. 361, 370; Seeden v. Pringle, 17 Barb. (N. Y.] causing the division of conditions precedent or subse- 458; Dox v. Dey, 3 Wend. 357, 359; Gardner v. quent.
Corson, 15 Mass. 499, 503; Tileston v. Newell, 13 Coined from existing authorities, the Civil Code id. 271, 287: Knight v. Worsted Co., 56 id. [2 of California states “a condition precedent is one Cush.] 271, 287; Cadwell v. Blake, 72 id. [6 Gray] which is to be performed before some right de- 402; 407; Schewerer v. Market Ass'n, 99 id. 285, pendent thereon accrues, or some act dependent 298; Sears v. Fuller, 137 id. 326; Philips v. Car thereon is to be performed," and "a condi- Co., 82 Penn. St. 368; Leonard v. Dyer, 26 Conn. tion subsequent is one referring to a future event, | 172, 176; Smith v. Lewis, id. 110; Kettle v. Harupon the happening of which the obligation be- / vey, 21 Vt. 301, 305; Sewall v. Wilkins, 14 Me.