same subject prescribed by act of Congress. APPELLATE COURT OF ILLINOIS, Where under the practice of the State Court FIRST DISTRICT. Elisa Hunnerberg. a party to a suit may be examined by his Chicago & North Western R. R. Co. v. adversary, this right is denied in the United States Courts, sitting in New York. The provisions of the Revised statutes of the United States is, that "The mode of proof in the trial of actions, at common law shall be by oral testimony and examination of witnesses in open court, except as hereinafter provided.” In Re Clinton B. Fisk (Miller J.) — Albany Law Journal, April 4 1885 ENGLISH HIGH COURT. UNLAWFUL ASSEMBLIES--ASSEMBLING FOR A LAWFUL PURPOSE BUT KNOWING THAT SUCH ASSEMBLING WOULD LEAD TO RIOT. THIS was an action by appellee against appellant to recover damages for a personal injury to her. The trial resulted in a verdict and judgment against appellant for $3000 to reverse which this appeal is prosecuted. It appears from the evidence, that the plaintiff was the owner and resided in a house situate outside, but contiguous to. defendants right of way in the village of Palatine: that defendant had a side track in the Vicinity of said house, one of the tracks of which was in bad and defective condition, that while defendant's servants were backing a freight train down said side-track, July 20, '83, some of the cars left the track on account of said defect, but the engine driver notwithstanding, kept the train baking until the end car went beyond defendants right of way. through the fence in front of plaintiffs house. and with great force and violence, struck the the porch thereof and demolished it. These facts were shown without any conflicting testimony and evidence was further given showing that the plaintiff was, at the time, pregnant; that she was upstairs in the house The Salvation army conducting their religious work in a town were interrupted by evil disposed persons in such a way as to cause annoyance and disturbance to peaceable citizens. Notwithstanding this interference they again assembled and marched in procession on the streets against the protest and warning of the police authority. While in the act of marching peaceably and singing their religious songs they are intercepted by the police and the leaders are arrested, to which they make no forcible resistances. The leaders of the army upon with two young children with her; that the trial, were held to answer for unlawfully shock and fright were so great that, though assembling and parading the streets, from this was on Friday, and her health had prewhich ruling they appeal. The question vionsly been good, by Sunday she had a mishere decided is, are persons liable to the carriage which seriously injured her. The penalties imposed on unlawful assemblies for court below on behalf of plaintiffs gave this inthus conducting an assembly which is in struction amongst others, to the jury; "The itself lawful but which they know if persisted court instructs the jury, that it is the duty of in, will lead to riotous conduct on the part the company to keep its tracks in resonable of others? Held that where thus assembled and safe repair, and if you believe from the for a lawful purpose without using or inten- evidence that the defendant company ding to use any violence in resisting any suffered and permitted one of the rails of its interference, they cannot be held liable to side-traks, at the village of Palatine, in Cook the consequence of an illegal assembly county to become and remain for a long whatever riotous or disorderly conduct time out of repair and in an unsafe and arises from their assembling. Beatty v. dangerous condition, and that by reason Gillbanks (Field J.) Filed June 13, '82 thereof one of the trains of the said comEnglish High Court of Justice Alb. pany, became derailed and left said side-track Law Jour. Dec. 23. 1882. and struck the house where the plaintiff resi ellant. ded and where she then was, and thereby right of way. That fact is not averred in the inflicted bodily injury upon the plaintiff declaration; but, in as much as it is one through fright, then your verdict should befor which cannot be changed by evidence, we the plaintiff, and in making up the amount shall regard it as part of the case. Concisely of your verdict it is proper for you to con- stated, then the case is this: The plaintiff' sider any physical pain or sufferings, which with two young children by her side, one of you may find from the evidence was under- them her own, is in the chamber of a house gone by the plaintiff, if any, resulting from (no definite description of which is given in said injury. And if you further believe from the evidence,) which is upon land lying the evidence that such injury to the plaintiff, entirely outside the defendant's right of way. if any there be, is permanent or will extend There is a door yard in front of the house into the future, your verdict, if such be the with trees in it, and enclosed by a fence. proof, should include all the damage which While the plaintiff is thus in the chamber of you find from the evidence the plaintiff has her own house, and being about two months suflered, if any; and all the damage, if any gone in pregnancy, she sees a portion of the which you believe from the evidence the freight train in question has left the side-track plaintiff will suffer in the future, by reason and is comming whith great forse and vioof said injury. lence towards her house; she sees and hears Hon. B. C. Cook, esq. Attorney for app- the end car crash through her door yard fence, and striking trees which fail to arrest De Witt C. Jones, esq.Attorney for appellee. its course, it comes against the house and MCALLISTER J.-The counsel for appel- tears away the porch belonging to it. The lant, defendant below, insists that, in as lives and limbs of herself and the children much as appellee, plaintiff below was not hit there were in iminent peril, from such a upon her person by, or thrown against, any frightful invasion of her premises and home, thing upon the floor, and her only injury being and she was overcome by a natural and from the fact of her pregnancy and miscar- reasonable fear. The shock to her nervous riage, caused by mere shock to her nerves and fright, there was no such proximate connection between the negligence of the defendant, in respect to a rail of the switch being in a bad and defective condition, and the injury to the plaintiff as would entitle The invasion of the premises in the way her to recover for that injury, the damages described was not the result of inevitable being too remote. As we analyze this case, accident; there was fault- culpable negligfrom the evidence, we regard it as essentially ence, on the part of the defendant's servants different in its controlling characteristics having the management of the train. Such from what the counsel for the defendant invasion was, therefore, unlawful, —- it was a seems to consider it to be, and different from the case of Phillips v. Dickerson, 85 Ill. 12 said to be exactly in point. system was so overwhelming that, though previously healthy, she was thereby made sick, and, the second day thereafter, suffered a miscarriage, which is the injury for which she brought this suit. trespass committed under circumstances wherein mischief and injury were likely to befall sombody in that house, and in such The plaintiff testified without contadic- case intention and design to do that mishief tion, that she herself owned the house where were not indispensible to liability therefor. she was, at the time it was struck by the Bullock v. Babcock 3 Wend 390; Welch v. end car of defendant's train, but that fact is Duran 36 Conn. 182. There is a total want of not averred in the declaration. It appears evidence tending ro show inevitable accifrom the plat of Palatine, in evidence, and dent; and there was evidence tending to the localty of the alleged accident, the said show negligence, not only as to the track. house was wholly outside of the defendant's but as to the manage ment of the train afte But it was not as well as civilly. the cars left the track. It is not necessary that he should intend to do the particular injury which follows.' Scott v. Shepherd 2 W. Bl. 892; Guille v. Swan 19 Johns 381: Brown v. Milwaukee & St. Paul R. R. Co., 54 wis. 342. S. C. 41 Am. R. 41; Ergott v. Mayor, It is a well settled rule of the common 96 N. Y. 280, S. C. 43, Am. R, 480. The law, that "the person, who for his own pur-case of Brown 7. Milwaukee Railway Co., poses brings on his hands and collects and supra, fully sustains the position that the keeps there any thing likely to do mischief, party guilty of a tort may be liable for causing if it escapes, must keep it in at his peril; and if he does not do so, is prima facia answerable for all damage which is the natural consequence of its escape." Fletcher v. Ryland. L. R. 1 ex. 265, 279: Affirmed in same case in L. R. 3 H. L. 330; Gosham v. Gross, 125 Mass. 232, and cases there cited. We can perceive nothing in reason or in the circumstances of this case to derrogate from the application of that doctrine in this case. Every element involved in the rule is present. a miscarriage when no direct physical injury was inflicted upon the woman, if the miscarriage was a natural and probable consequence of the wrong. Oliver v. La Valle 36 wis 592 is to the same effect. The first instruction for plaintiff was, however, SO erroneous and misleading, that, with the defect of the declaration, we feel compelled to reverse the judgment. That instruction perports to comprehend all the necessary elements of a right of recovery: but in the hypothesis as to the wrong on the The act of invading the presmises in part of defendant, nothing is embraced but question was, under the circumstances, an the negligence as to the rail of the side-track. unlawful act; and was one which was likely It appears to us to be very doubtful, if there to prove injurious to the occupants of the was such a proximate connection between dwelling where plaintiff was; and there was that negligence and the plaintiff's injury as evidence tending to prove that it was the to warrant a recovery. The question of result of gross negligence and reclessness. that connection was not submitted to the Upon these facts, if established, the defen- jury, or, whether the injury was the natural dant was liable to the plaintiff for the injury and probable consequence of that negshe suffered in consequence, if such injury ligence. The case shows that bewas the natural and probable consequence tween said defective rail whereat the of the wrong committed; and this irrespec- cars left the track to run upon the ground. tive of whether those guilty of the negligence and the premises where plaintiff was, at the knew she was in the house or not, or of her time, there was a space of one hundred and condition as respects pregnancy. fifty feet, over all, which distance, the engine driver and those in charge of the train permitted it to go, and drove it with great force and violence into the yard and against the house in question, causing naturally and reasonbly the great fright and shock which plantiff experienced. In Vanderburg v. Fruax, 4 Denio 465, the rule in such cases was carefully formulated by Bronson J. as follows; "It may be laid down as a general rule, that when one does an illegal or mischievous act which is likely to prove injurious to others, and when he does a legal act in such a careless and Now, it is not difficult to perceive, that improper manner, that injury to third per- between that unlawful invasion of the presons may probably ensue, he is answerable mises and the injury to plaintiff there might for all the consequences which may directly be sufficient proximate connection to warand naturally result from his conduct; and rant a recovery, But that element is wholly in many cases he is answerable criminally omitted from the instruction. The judg ment will be reversed and the cause re- and that Mackin, Gallagher, Gleason and manded for a new trial. JUDGMENT REVERSED. Biehl conspired to break open such package, mutilate and alter the certificate, destroy the tally-list, and substitute in its place a The separate UNITED STATES CIRCUIT COURT, false and spurious paper. That Gleason and Biehl made opportunity for, and permitted the package to be broken open, and the return taken therefrom altered and falsified. 2. That Mackin and Gallagher unlawfully broke open the package, and removed therefrom such return. IT WILL BE GRANTED-PRACTICE. GRESHAM J. — The prosecution in this case was commenced under section 5440 Rev. Stat. by information filed by the dis- 3. That Gallagher unlawfully mutilated trict attorney, containing seven counts, and altered such certificate by erosing the charging that the defendants conspired to word "four" in the sentence "Henry W. commit the offenses described in sections Leman had four hundred and twenty votes 5403, 5511 and 5514. Gleason, Mackin and for State Senator," and wrote in place Gallagher were convicted upon all the thereof the word "two," so as to make the counts, and the two latter were sentenced sentence read, "Henry W. Leman had to pay a fine of $5,000 each, and to impris- two hundred and twenty votes for State onment in the penitentiary at Joliet for two Senator:" and erased the word "two" from years. Biehl was acquitted. Mackin and the sentence, "Rudolph Brand had two Gallagher by their petition ask the Circuit hundred and seventy-four votes for State Court for a writ of error and for a stay of Senator," and wrote in place thereof the sentence until the rulings of the District word "four," so as to make the sentence Court shall have been reviewed. read, “Rudolph Brand had four hundred and seventy-four votes for State Senator." The first count in the information charges that at the late election a large number of 4. That Gallagher made a false and votes were cast at the second election pre-spurious paper, and substituted the same in cinct of the eighteenth ward of the city of place of the genuine list, and Chicago, in Cook County, for a representa- 5. That Mackin and Gallagher unlawtive in Congress, and for state and county fully made way with and destroyed the officers; that the Judges of electon can- genuine tally-list. the ballots as well as the other papers described and embraced in the first count. vassed the votes, and the proper clerks The second and third counts embrace made two tally-list showing the number of votes received by each candidate; that on the day after the election the judges and The fourth count charges that the declercks certified on each poll-book the fendants conspired to interfere with Minumber of vots cast for each person voted chael Ryan, the clerk of Cook county, and for, and thereupon, one of the poll-books such two justices of the peace as he might with the certificate indorsed thereon, and associate with him in the discharge of his one of the tally lists, together constituting duties, in opening and canvassing the sev the return from such precinct, properly eral returns of the election within Cook enveloped and sealed, were delivered by one county, such interference to be effected by of the judges to the county clerk and his mutilating and altering the certificate on the deputies at the clerk's office, whose duty it poll-book deposited in the clerk's office bewas to safely keep and guard the same, fore the opening and canvassing of the and the sixth and seventh counts upon Section 5403. returns from the second precinct, and by removing from the county clerk's office and destroing the tally-list deposited therein, Section 5515 declares that every officer and substituting for and in place thereof a of an election at which any representative false and spurious paper purporting to be or delegate in Congress is voted for, whether such tally-list; and that in furtherance of such officer of election be appointed or crethis compracy the defendants altered the ated by or under any law or authority of certifieate on the poll-book, making it ap- the United States, or by or under any State, pear that Leman had received for State sen- territorial, district, or municipal law or auator the number of votes cast for Brand, thority, who neglects or refuses to perform and that the latter had received the num- any duty in regard to such election required ber of votes cast for Leman, and that the of him by any law of the United States, or defendants removed from the clerk's office of any State or Territory thereof, or who and destroyed the tally-list deposited therein, violates any duty so imposed, or knowingly and substituted for and in place of it a false does any act thereby unauthorized with and spurious paper. intention to affect any such election, or the result thereof, or who fraudulently makes any false certificate of the result of such election in regard to any such representive or The conspiracy charged on the fifth count was to destroy the papers described in the fourth count, and in addition thereto, a large number of ballots which had been delegate, or who withhol, conceals or deposited in the clerk's office, and substituted in their place spurious ballots and paper. The sixth count charges that the returns of the poll of second precinct had been deposited in the clerk's office, as stated in the previous counts, and that the defendants conspired to steal, carry away, and destroy part of such returns, to wit, the tallylist; and that to effect the object of this conspiracy, they unlawfully did steal and destroy such tally-list, and substitute for it a fabricated tally-list. destroys any certificate or record so required by law, respecting the election of any such representative or delegate, or who neglects or refuses to make and return such certificate, as required by law, shall be punished, etc. Section 5512 declares that, if at any registration of voters for an election for representative, or delegat in Congress, any person by force, threats, menace, intimidation, bribery, reward, or offer or promise thereof, interferes with any officer of registration in the discharge of his duties, or by any The seventh count charges, that the de- such means, or other unlawful means, infendants conspired to steal from the county duces any officer of registration to violate clerk's office a large number of the ballots, or refuse to comply with his duties, or if and one of the poll-books deposited therein any such officer or other person who has as a part of the return of the election at such any duty to perform in relation to such regsecond precinct, and destroy the same, and stration or election in ascertaining, announthat in furtherance of this conspiracy, the cing or declaring the result thereof, or in defendants actually did steal, carry away giving or making any certificate, document, from the clerk's office and 'destroy a large or evidence in relation thereto, knowingly number of the ballots and the poll-book so neglects or refuse to perform any duty redeposited therein, and substituted in the quired by law, or violates any duty imposed reace thereof spurious papers purporting by law, or does any act unauthorized by to be the genuine ballots and poll-book. election, or the result thereof or any certifilaw relating to or affecting such registration The first, second and third counts are cate, document, or evidence in relation based upon Sections 5515 and 5512; the thereto, every such person shall be punishfourth and fifth counts upon Section 5511; able, etc. |