or their attorneys, the amount due under the judgment, together with ten dollars costs of these proceedings.

Who is to determine the amount due under that decree? The moving creditors or the assignee?

The appellant has not been directed to do any specific thing, and if a commitment were issued upon such an order it would be impossible for the sheriff to determine when the appellant had conformed to its requirements.

It is absolutely clear that a party cannot be adjudged to be in contempt without definitely stating what he shall do in order to purge himself of the contempt. There is no such statement in this case. The court has not yet determined the precise amount which he is to pay to these various creditors, and until it does the appellant cannot be proceeded against by this class of proceeding.

But by anything that has been said we do not intend to intimate that under any circumstances the payment of money under a decree of this kind can be enforced by proceedings for contempt. The order should be reversed, with ten dollars costs and disbursements.

BRADY and DANIELS, JJ., concur.

MIMA ATKINS, Resp't, v. THE MANHATTAN RAILWAY CO.,

App'lt.

(Supreme Court, General Term, First Department, Filed June 6, 1890.) 1. NEGLIGENCE-EVIDENCE-FUTURE RESULTS OF INJURY.

In an action to recover damages for injuries caused by negligence it is improper to ask a medical witness what results are likely to flow from the injuries" from which the plaintiff was suffering.

2. SAME.

A question to a medical witness as to what symptoms he treated plaintiff for from the time of the accident due entirely to the injuries she received at that time, is also objectionable, as it leaves the witness to determine what injuries she received from the accident, and calls not for an opinion, but for testimony to the absolute fact that the symptoms arose from the injuries which the witness assumed were received, while the jury is ignorant of what the injuries he assumed were.

APPEAL from judgment entered upon verdict of a jury and from an order denying defendants' motion for a new trial.

Samuel Blythe Rogers, for app'lt; W. J. Curtis, for resp't.

VAN BRUNT, P.J.-This action was brought to recover damages for personal injuries alleged to have been sustained because of the negligence of the defendants.

The only questions submitted upon this appeal arise upon exceptions to the admission of questions relating to the permanency of the injuries received.

The following question was asked of one of the medical witnesses by the plaintiff :

Tell the jury what results are likely to flow from the injuries from which Mrs. Atkins was suffering on the 3d of January, 1888 ? This question was duly objected to and the objection everruled.

This was clearly error. This form of question has been so often condemned that it seems somewhat remarkable that it should still be persisted in. In the cases of Johnson v. Manhattan R. R. Co., 52 Hun, 111; 23 N. Y. State Rep., 388; Strohm v. N. Y., L. E. & Western R. R. Co., 96 N. Y., 306, and Griswold v. N. Y. C., etc., Railroad Co., 115 id., 61; 23 N.Y. State Rep., 729, such a form of interrogatory is expressly condemned.

There was another class of expert evidence, which was ad mitted under objection, which was equally obnoxious to the rules of evidence. The physician had testified that he had never seen the plaintiff before she was hurt to attend her professionally; that he had no personal knowledge of her medical history prior to the accident except that which he gained from her in questioning her when he first saw her, and subsequently. No evidence was given as to what the plaintiff had told the physician, and this question was asked:

"For what have you treated Mrs. Atkins; what symptoms have you treated her for during the time intervening between the 3d of January, 1888, to the present time, due entirely to the injuries she received at the time of the accident." This question was duly objected to, and objection overruled. This question allowed the witness completely to usurp the functions of the jury.

It left the witness to determine what injuries the plaintiff had received from the accident. It left the witness to determine what her previous condition had been without the jury having any knowledge upon what such determination was based; and the question also made the witness testify not as to an opinion, but to the absolute facts that the symptoms arose from the injuries which the physician assumed the plaintiff to have received, but what those were which the physician assumed the jury were entirely ignorant.

In fact throughout the whole of this case the medical experts were allowed to testify without the jury having the slightest information as to upon what such evidence was founded.

The judgment and order appealed from must be reversed, with costs to the appellant to abide the event.

BRADY and DANIELS, JJ., concur.

THE PEOPLE, Resp'ts, v. JAMES A. FLACK et al., App'lts. (Supreme Court, General Term, First Department, Filed June 6, 1890.) 1. CONSPIRACY.

The rule that a confederation to do an act, innocent in itself, does not become a criminal act unless the agreement to do the act is with knowledge that it is prohibited, has no application to a confederation to do acts which never in themselves can be innocent, and therefore the very confederation to do them makes the confederation corrupt, and the only question in a case of this description to be left to the jury is whether there was a confederation to effect the result by unlawful means, the court necessarily being the judge as to whether the means were lawful or unlawful.

2. SAME-INTENT.

Where acts are mala in se, the question of the intent with which they

are done has no bearing upon the guilt or innocence of those charged with them, because the doing of such acts shows criminal intent.

3. SAME.

Such

It is not the province of the jury in a criminal case to determine whether or not an act established by the evidence is lawful or unlawful. question is one of law, exclusively for the court.

4. SAME-DIVORCE-CHARGE.

In a trial for a conspiracy to procure a fraudulent divorce, where such divorce is procured upon papers, each of which was confessedly fraudųlent, it is not error for the judge to charge the jury that the divorce is fraudulent.

5. SAME-JUDGE CANNOT AUTHORIZE ACTS WHICH WILL RESULT IN A FRAUD ON THE COURT.

A judge of a court is utterly without jurisdiction to direct the performance of acts which must necessarily result in the perpetration of a fraud upon the court, and render absolutely void any action had thereupon, and such acts of a judge, if established, will not be a protection to any one following out his instructions in regard thereto.

6. CRIMINAL LAW-NEW TRIAL.

A verdict of a jury in a criminal case will not be set aside because there was concealed in the jury room during the deliberations of the jury a reporter of a daily paper, where it appears that their judgment was in no manner affected by the intrusion of this man, without their knowledge, into the jury room. Especially where, after discovery of the intruder in the jury room, the defendants, with full knowledge of the fact, permitted the trial to go on and allowed the jury, who had come into court for instructions, to be sent back without objection, and asked the court to give instructions to the jury on their behalf.

APPEAL from judgment of the court of over and terminer convicting the defendants, James A. Flack and William L. Flack, of a misdemeanor.

Horace Russell, for app'lts; J. W. Goff, for resp'ts.

VAN BRUNT, P. J.-The question presented upon this appeal arises entirely upon exceptions taken to the charge of the judge. The appellants, together with one Joseph Meeks, were convicted of a conspiracy for the perversion of justice and of the due administration of the law by procuring by unlawful means a decree of divorce. The indictment under which this conviction was had contained many counts, which, however, may be summarized as follows: First, a conspiracy to obtain a divorce without the knowledge and consent of the plaintiff therein. Secondly, a conspiracy to obtain a divorce by unlawful means.

Although a large number of exceptions to the charge of the learned judge who presided at the trial were taken, our attention upon this appeal has been called to the following, only:

First. An exception to the statement of the court that "this judgment record " (referring to the decree of divorce), "is a record of a fraudulent divorce; that of that there can be no doubt, whatever; that it is unquestionably fraudulent."

Second. An exception to the following language of the court contained in instructions to the jury as to the duties of the referee in the taking of the testimony of the witnesses in an action for divorce: "If the referee had done his duty would she (referring to one of the witnesses) have said she first knew him fifteen years ago as Reynolds. She says now she never dil."

Third. That the court erred in its charge that it was no excuse for Meeks, if he performed the acts he did perform by the consent of Judge Bookstaver.

Our attention is called to the following requests and exceptions in connection with this point:

I ask your honor to charge that Judge Bookstaver was the judge of the regularity of the proceedings and the sufficiency of the papers.

The court so charged.

Mr. Bird: I ask your honor to charge that if Judge Bookstaver knew when the papers were brought back to him that the changes had been made in them as testified to by the defendant Meeks, that then this jury cannot find Mr. Meeks guilty.

The court declined so to charge; exception taken.

Mr. Bird: I ask your honor to charge that it was in the power of Judge Bookstaver verbally to direct changes of the character made here.

The court: I decline so to charge, and charge the direct

reverse.

Mr. Bird: I except to that and to the qualification, on behalf of each of the defendants.

I ask your honor to charge the jury that Judge Bookstaver, being the judge to whom the papers were presented, was the sole judge of the sufficiency of the proof.

The court: Yes.

Mr. Bird: I ask your honor to charge that if that is so, this record is not a fraudulent record.

The court: I decline so to charge. Exception taken.

The counsel for Meeks then asked the court to charge that if Mr. Meeks did what he did, what he has sworn to upon the stand, upon the direction of Judge Bookstaver, without any criminal connection with any other person, but simply obeyed the order of the judge who had obtained jurisdiction over the case, he committed no crime whatever.

The court: "I charge the part which refers to his criminal act, but everything in relation to his having done it by the direction of Judge Bookstaver I decline to charge."

The counsel then requested the court to charge that "Judge Bookstaver had exclusive power to give directions to Mr. Meeks, he being his referee.'

The court: "He had no authority to direct Mr. Meeks or anybody else to change, erase, or make any alterations such as have been made here in that record, and if he did so, he himself was derelict in his duty." The counsel excepted to the refusal of the charge as requested, and to the qualification as charged.

The counsel asked the court to charge that if the jury believed that Judge Bookstaver gave Meeks a verbal order to have a change of attorneys made, and that Meeks effected that purpose as he has described upon the witness stand without any intent to commit a crime, and that Judge Bookstaver was not imposed upon, but acted upon his own official judgment and upon the papers N. Y. STATE REP., VOL. XXXII. 28

presentea to him by Meeks, that then they must acquit the defendant Meeks.

The court: I decline to charge that. So far as the criminal intent is concerned, it is correct. Everything about Judge Bookstaver's verbal order, etc., I decline to charge.

Exception was also taken to the following language in the charge that, "Ignorance on the part of the defendants, or any of them, of the meaning of this statute, cannot be a shield to thein if you believe they have committed the acts. If you believe beyond a reasonable doubt that they have committed the acts which constitute the offense as I have defined it to you, then they are guilty." And the court thereupon defined a criminal intent to be the doing of an unlawful act intending to do it, and that ignorance of the law has nothing to do with it.

The court was also asked to charge as follows, which it did: That "mere concert is not conspiracy; persons who agree to do an act innocent in itself, in good faith, not by the use of criminal means, do not become conspirators because it turns out afterwards that the act was prohibited by statute."

The court was also asked to charge the jury, which it did, that the jury must not guess that there was a conspiracy, but that they could only find the same from the legal evidence of the witnesses, proving the same beyond reasonable doubt.

The court also charged in the following language: "If in stating either conceded facts, or the facts proven on one side and controverted on the other, such facts, as so stated, seem to weigh one way or the other, pray do not consider me as commenting on such facts or expressing an opinion upon them." Also, The two questions for you to determine are, first, whether the suit which resulted in this decree was fraudulently and falsely instituted. Then the other question for your consideration is, was this fraudulent decree obtained by fraudulent means?"

And also: "Now when I pronounce this a fraudulent decree, I do not mean to characterize the conduct of the defendants, which I want to leave exclusively to you." Again: "Now the first question in this case, as you see, is whether the suit itself was falsely instituted. The first is, of course, whether Mrs. Flack is to be credited in her statement that she did not authorize the suit to be brought for an actual divorce. This is a question exclusively for you, and concerning it I desire to express no opinion, nor to affect your judgment in the least."

Also: "It will be for you to say, gentlemen, on the facts, whether these defendants are guilty of having obtained this decree of divorce by fraudulent or unlawful means. On that point it is proper to say, whether there was a genuine cause of action is not the question. The question is, whether the law has been abused or perverted by practices which are fraudulent."

The court also charged that if the jury believed the defendant Meeks did all the acts testified to in the case without conspiring with the other defendants or anybody else, they must acquit him.

And again: "Now, gentlemen, apply the rule with regard to