make his own note for $2,500, on six months' time, and also indorse and deliver the note and deed of trust for collateral security for the payment of his note, he would lend him $2,500 for six months. Plaintiff in error accepted the offer, made his own note to Eddy for $2,500, payable in six months, and delivered it, with the remaining note and deed of trust, indorsed by him, as collateral security for the loan. When the note of plaintiff in error became due, he went to Eddy and paid it, and took it up. To make the payment, he negotiated a loan of one Cole, and to secure that loan, Eddy, upon request of plaintiff in error, transferred the Gale note and deed of trust to Cole. Having neglected to limit his liability as indorser, when the note of plaintiff in error to Cole fell due plaintiff in error neglecting to pay it, Eddy became liable on his indorsement of the Gale note.

Eddy's evidence in regard to the transaction is: "Mr. Evans wanted to sell me the note, and I told him I wouldn't buy it, but if he would indorse it, I would take his own note as security. I sent the abstract, trust deed and note to my attorney, who passed on them, and the next day Mr. Evans came in and gave me his note for $2,500. In six months his note became due, and he came in and took up his own note on my indorsing this note to him, he taking this note to the bank and getting some one else to pay him some money on this original note. This note fell due, then, on the 28th of October, 1875, at which time I received notice from the parties who purchased the note from him that the note had not been paid, and asking me to take it up, which I did. This note, secured by the trust deed, I received as security. Evans told me that Mr. Gale lived in Cincinnati, and two or three days before it came due Evans came in and said Mr. Gale would be here from Cincinnati in two or three days. After that I saw no more of Mr. Evans until in court yesterday. I heard no more of the matter until I brought the case before the grand jury. About the time this note fell due, I went with Mr. Waite and Mr. George Scoville to Mr. Rawson's bank, and was shown another note and trust deed, bearing all the marks of this one. At the time Evans presented this note and trust deed to me with the abstract, nothing was said about there being any other trust deeds or notes in connection with this land. The abstract showed a trust deed of that amount and date. Never saw Webster until he appeared for trial, nor Gale until I saw him in jail, with Mr. Charles Reed, yourself, and Mr. Rawson. I don't think Mr. Evans asked me to indorse the note. He knew my indorsement was on it when he took it up. I think he saw me put my indorsement on the note. I put it on unasked."

*

*

The abstract was brought down to the 30th of October, 1874, and showed, only, the record of one of the deeds of trust, and since they

were all alike, and the certificate of the recorder on them showed the same docket number, and that they were all recorded October 30th, 1874, neither of the purchasers had any notice of the existence of the other deeds of trust; that two of the certificates of the recorder had been changed is evident from the evidence, and it is most probable that this was done by plaintiff in error. Before this trial, Gale entered a plea of guilty, which he subsequently asked leave to withdraw, but this was denied by the court. Webster was found not guilty by the jury.

It is with some regret that we feel compelled to reverse the judgment against plaintiff in error. His knavery in the several transactions is clearly proved, and morally he deserves all the punishment which the judgment imposes upon him. But we are only to determine whether his conviction can be sustained under the well established rules of the law applicable to the offense for which he was indicted and of which he was convicted. If not properly convicted of that offense, it is utterly immaterial how guilty he may be of other offenses.

The offense charged, as has been shown, is, that the plaintiff in error, Webster and Gale, unlawfully, etc., did then and there conspire and agree together, etc., to obtain of and from one Agustus N. Eddy, $2,500, etc.

The object of the conspiracy must be proved as laid in the indictment.1

"An averment on an indictment for conspiracy, that the defendants conspired to defraud A., is not supported by proof that they conspired to defraud the public generally, or any individual whom they might meet, and be able to defraud.” 2

Where an indictment against A., B., C., and D., charged that they conspired together to obtain "viz.: to the use of them, the said A., B., and C., and certain other persons to the jury unknown," a sum of money for procuring an appointment under government, it appeared that D., although the money was lodged in his hands to be paid to A. and B., when the appointment was procured, did not know that C. was to have any part of it, or was at all implicated in the transaction, Lord Ellenborugh said: "The question is whether the conspiracy as actually laid be proved by the evidence. I think it is not as to D. He is charged with conspiring to procure the appointment through the medium of C., of whose existence, for aught that it appears he was ignorant. Where a conspiracy is charged, it must be charged truly." 3

Rosc. Cr. Ev. 420.

22 Whart. Cr. L. (7th ed.), 2, sec. 2357: Commonwealth v. Healy, 7 Metc. 506.

3 Pollman's Case, 2 Camp. 233. See, also,

2 Russ. on Cr. (7 Am. ed.) 702.

2

"To authorize a conviction for conspiracy there must be proved to have more than one person guilty. And it needs something more than proof of a mere passive cognizance of fraudulent or illegal action of others to sustain conspiracy. There must be something showing active participation of some kind by the parties charged." This, the author last referred to, illustrates by reference to the case of Regina v. Barry,3 where certain wharfingers and their servants were indicted for a conspiracy, to defraud by false statements as to goods deposited, with them and insured by the owners against fire. It was held, that evidence that false statements were knowingly sent in by the servants, which would be for the benefit of the masters, and that afterwards the servants took fraudulent means to conceal the falsehood of the statements, with evidence that the employers had the means of knowing the falsehood, and knew of the devices used to conceal it, was no evidence to sustain the charge of a fraudulent conspiracy between the employers and servants."

That Webster was properly acquitted there can not be the slightest question. There was no evidence to impeach the bona fides of his conduct in conveying the lot, and evidence that he had any knowledge of any improper purpose of plaintiff in error in having him to convey to Gale, who was an entire stranger to him, or that he directly or indirectly advised with plaintiff in error in regard to or was privy to what he did in having the notes and deeds of trust made, or to what he did in subsequently imposing them upon others.

There is not a particle of evidence, that when Gale made the notes and deeds of trust, he knew why plaintiff in error had them made, or what disposition he intended to make of them. There is no proof that any agreement or understanding ever existed between Gale and plaintiff in error that any particular person should be defrauded or injured by the use of the notes and deeds of trust, or that they should be traded or sold to any particular person, and no proof that he in any way advised or was even cognizant of the disposition plaintiff in error made of them. He did not know Eddy, nor of the transfer of the note and deed of trust to him.

All that can be said of his conduct is, that he permitted himself to be used in a transaction in which a better, or perhaps, a wiser man would not have permitted himself to have been used. Three notes of equal amounts, maturing at the same time, and three separate deeds of trust to the same trustee on the same property, one deed securing each note, might, possibly, be honestly executed; but the reasonable inference from the circumstances is the other way. Gale had reason

12 Whart. Cr. L. (7th ed.), secs. 23, 39; Russ. on Cr. (7th Am. ed.) 674.

2 2 Whart. Cr. L. (7th ed.), sec. 23, 55. 34 F. & F. 389.

2 DEFENCES.

34

to believe, from the character of the transaction, that roguery of some kind was intended-but, not necessarily what

From the entire evidence, it would seem that plaintiff in error kept his own cousels, knowing, doubtless, that he could make the use he did of Gale without being closely questioned, and that Gale was contented to let him do so and receive whatever plaintiff in error might choose to give him.

It was incumbent on the People to prove the conspiracy as alleged, by clear and satisfactory evidence. To say that it is proved by such evidence that either Gale or Webster conspired to defraud, as charged, Augustus N. Eddy, is to entirely disregard what is preserved in the record as the evidence.

The device gotten up seems to have been an invention of the plaintiff in error alone, and his subsequent use of it does not appear to have been in pursuance of any previous understanding with others, or in any degree to have been pursuant to advice or direction from others.

Since the evidence fails to show that either Gale or Webster were conspirators, as charged, and no one else is charged and proven to have been a co-conspirator, it follows that, whatever else plaintiff in error may be guilty of, he can not be guilty of the offense of which he is indicted and convicted.

The judgment is reversed and the cause remanded.

1. An Indictment for a Conspiracy to cheat and defraud must set forth the particular means intended to be used by the conspirators, to compass the alleged fraud.

2. To Constitute the Offense of Conspiracy there must be a conspiracy to cheat and defraud some person of his property. Although there may have been an intention to defraud, yet if the means used could not possibiy have that effect, the offense is not complete.

3. On an Indictment Against Two for a conspiracy to cheat, the judgment should be against each defendant, severally, and not against them jointly.

ERROR to the General Sessions of Herkimer County. The defendants were indicted for a conspiracy. The indictment alleged that on the 13th day of February, 1848, at Little Falls, in said county, N. S. Benton and William Barrett had a demand against the defendant March

amounting to $77; and that the defendants, unlawfully, wickedly and maliciously contriving, devising and intending to cheat, deceive and defraud them out of the said demand, did between themselves conspire, combine, confederate and agree together falsely and fraudulently to cheat, deceive and defraud the said Benton and Barrett out of the said demand; that the defendants, in pursuance of, and according to the said conspiracy, combination and confederacy did, by certain false, fraudulent, injurious, and artful acts and devices procure and induce the said Barrett to take into his possession as payment of said demand from the said Peter March, in the presence of the said Guivits, under the false and fraudulent pretense that they were bank-notes of the value of $77, certain worthless paper and fraudulent pictures, and falsely and fraudulently insisted and declared that by such false and fraudulent acts and devices the said demand was paid and satisfied; and then and there further falsely and fraudulently averred and insisted that the said Peter March had, by the acts aforesaid paid and discharged the said demand in bank notes of the value of $77; contrary to the statute, etc. The indictment contained a second count, similar to the first. The defendants pleaded not guilty. On the trial it was proved that Benton and Barrett had a judgment against March, upon which an execution had been issued, and his land had been advertised for sale by the sheriff. That March called on Barrett and pretended that he wanted to pay the judgment, the amount due upon which was ascertained to be about $77; that after calling at Barrett's office several times, in the course of the day, and conducting himself very suspiciously, he followed Barrett to his lodgings, about dusk, accompanied by Guivits, and said they had come to pay the debt, and asked Barrett if he recollected the amount. That March then asked Guivits for the money, and the latter took out a roll of something which resembled bank-notes, and turned them over, as if counting the amount. He then rolled them up and, after laying a piece of silver money upon the roll, handed it to March. The latter laid the roll on Barrett's knee, saying, "There is your money, I have paid you. Now don't ask for it any more." Barrett took up the roll, supposing it to be bank-notes, but on examination he found it to consist of fifteen or twenty engraved tradesman's advertisements, etc., worth nothing whatever. On seeing the figures 100 upon some of the papers Barrett observed, "there is some mistake or fraud about this," and endeavored to make March take back the roll; and told him that he should not receive it in payment. March refused to take it back, saying: "I paid you good money, and now you want to palm that off on me.” Guivits remarked: "Do you suppose I let him have that shoemaker's bill? I paid him good money" "Yes," said March, "it was good money you let me have and I paid it over to him; and he