neymen printers employed by the firm, with notice that a refusal would result in a strike of the workmen, followed by the defendants going together to the workshop of the prosecutors and notifying the journeymen that a strike was ordered, constitute the use of force, threat or menace of harm to the persons or property of the firm, or to the members of the firm of Sherman & Co., or to their employes? Are these means otherwise than lawful and peaceful, and had they for their object a lawful purpose? We are unable to see wherein they offend against the law. If laborers may now lawfully combine, and, as mem bers of such combination, refuse to work for an employer, when in their opinion, the wages paid to them are insufficient; if they may now lawfully refuse to work, when to do so would be contrary to the rules, regulations or by-laws of any association to which they may belong, how can it be considered as amounting to force, threat or menace of harm, for two or more persons, authorized to act for such association, to say to an employer that a rule, by-law or regulation of the association required the payment of increased wages, and that, on refusal to make such payment, their workmen were, by virtue of their membership of a lawful society and its regulations, required to stop work? It is true, that striking, as it is called, or refusing to work might, and probably would, result in harm to the business of Sherman & Co., but that is the result of what the workmen may now lawfully do in their associated capacity, and does not constitute a threat or menace of harm in that sense in which these terms are to be understood as they are used in the act of 1876. The fact is not to be overlooked that it had too often been a matter of just complaint that workmen resorted to actual force, to threats and menace of injury to persons and property in the enforcement of a demand for an advanced rate of wages. Upon this the law always frowned. Such acts were always illegal. When done by agreement between two or more persons, they amounted to overt acts, growing out of a criminal conspiracy, which tended to the injury of the community and to the supervision of individual rights of persons and property. This was the wrong referred to in the act of 1876 which it was declared would subject the offenders to punishment in the future, as it had in the past. Such acts were declared to be outside of the protection contemplated by the legislation which we are now considering, because such means are neither lawfui nor peaceful, and because they are calculated to improperly hinder persons who desire to labor for their employers from so doing, and to prevent other persons from being employed as laborers.

"It was further urged on behalf of the Commonwealth, that the intrusion of the defendants into the shop or work-room of the prosecutors, was in itself a trespass, and therefore, illegal, and that the means employed to carry into effect the purposes of the defendants are not sanctioned by the act of 1876. But this proposition is not borne out by the testimony in the cause; for it has not been shown that visits like the one made by the defendants, - workmen of the same craft going to shops where other workmen are employed are not, at least, with the implied permission of the employers. It is not pretended in this case that defendants were forbidden to enter the shop, or that they were ordered to depart after they had entered, or that their conduct was not peaceable and orderly. The foreman having charge of the shop was present, and knew of the presence of the defendants and of the object of their visit. To this, he did not object, and, in so far as he represented the prosecutors, may be said to have consented to, if he did not approve of all that was said and done. Reaching the conclusion that the defendants are not shown to have done any

the purpose of inducing the several sellers to part with their goods, or that they obtained the goods by means of any such pretenses, artifices, or contrivances.' The general ground taken for the prosecution was that the alleged fraud and cheating of the individuals named in the indictment, were sufficiently established by showing 'that the defendants continued to purchase goods after they knew they had become insolvent, without disclosing the fact of their insolvency to the sellers and without having any reasonable expectations of being able to pay for the goods so purchased in the regular and ordinary cause their business.' The counsel for the defendants on the other hand, contended that in the absence of all proof of false pretenses, or of any artifices or deceptive contrivances, the indictment could not be sustained, unless the jury should be satisfied that the defendants obtained the goods with an intention not to pay for them, which intention was not inferable from the mere fact of their being deeply insolvent at the time they made the purchases.

"The jury were instructed that if they should be of opinion upon the evidence that the defendants made any of the purchases of goods alluded to in the indictment at a time when they had full knowledge of their insolvency, without any reasonable expectation of being able to pay for those goods, in and by means of the fair and ordinary course of their business, and without making known their situation to the sellers, every such purchase was a wrongful act, which might be the subject of a conspiracy.' The obtaining of goods on credit, by an insolvent person, without disclosing his insolvency, and without having any reasonable expectation of being able to pay for such goods in the ordinary course of business, was held to be an unlawful or wrongful act, without proof of any false pretenses, or any acts of intentional deception on the part of the purchasers.

"We apprehend that this instruction was too stringent upon the character of such purchasers. The provisions of the insolvent laws in reference to a debtor, who, knowing himself to be insolvent, makes payment in money or gives preferences by way of conveyances of his property, to particular creditors, do not make the acts thus prohibited crimes or declare them to be unlawful except as frauds upon the insolvent law itself; nor do they prescribe any other consequences of such acts, than a forfeiture of the right of the party to a discharge as an insolvent debtor. But if acts of the description stated are unlawful as frauds upon the insolvent law, yet purchases made and credits obtained by one who knows himself to be insolvent are not within the prohibition. The duty of an insolvent person to abstain from making purchases on credit from those who are willing to give him credit, is no statute requisition; nor is it anywhere enjoined by the insolvent laws. It is at most only a moral obligation. Taking the strongest ground applicable to cases of this nature the true doctrine can not go further than this, that such purchases become unlawful when they are made on a credit asked by the buyer, without any expectation of ability to make the stipulated payment.

"Mere inability to pay one's previous debts mere mercantile obligation not to continue to trade after one becomes insolvent- - the provision of the statute that payments made by a party knowing himself to be insolvent shall debar him from obtaining his discharge - the further provision that if such payment is made to a creditor having like knowledge of the insolvency, it shall be invalid, and may be recovered back by the assignee for the benefit of all the creditors. All these considerations fail to furnish any authority for the doctrine that a purchase on credit made by an insolvent person under the circumstances pre

viously stated, is an unlawful act, which, if accomplished in pursuance of a concert or combination between two or more persons, without the use of any unlawful means, would sustain an indictment for a conspiracy to cheat and defraud the seller.

"The presiding judge at the trial repudiated the idea that it is the duty of a person engaged in trade to resort at once to proceedings under the insolvent laws, and to place his affairs in the hands of assignees, upon ascertaining that he is indebted to a larger amount than can be realized from his assets. But at the same time he held that the purchase of goods on credit by an insolvent person after knowledge of his insolvency, and without disclosing that fact to the seller, such buyer having no reasonable expectation of being able to pay for the goods, in the regular and ordinary course of his business, was an unlawful act. The test here assumed is that of 'reasonable expectation' of being able to pay for the goods purchased. This is too severe a test. It would be hardly safe to take as the standard of the criminality or lawfulness of a commercial adventure after it had proved unsuccessful, to result to which sober and discreet minds would have come as to the 'reasonable expectation' that could have been entertained of a more favorable issue to the adventure. Men of a sanguine temperament, easily deluded by new and visionary schemes of commercial speculation, and influenced thereby to avail themselves of that credit, which the sellers of goods are so lavish and improvident in extending, if, on failing to pay for purchases thus made, they should be strictly tried by this rule, would be found to have been engaged in unlawful acts, and to have been guilty of a violation of duty to their creditors. The more proper rule would seem to be that the purchase of goods by an insolvent person, knowing himself to be such, without any expeetation of paying for the goods, would be an unlawful act which might be the subject of a conspiracy. The unlawfulness of the act consists in purchasing the goods of another and appropriating them to the purchaser's own use without expecting to pay for them. Nothing less than this will suffice, if the goods are purchased on a credit and with no false pretenses or deceptive contrivances.

"A very different case would have been presented if the defendants had been charged with fraudulently obtaining possession of the goods, under pretense of paying cash for them upon the delivery; they knowing that they had no funds to pay with, and appropriating the goods to their own use in fraud of the sellers. Such a case would show a deceptive contrivance or false pretense. The known inability to pay for the goods would be, under the act of the party, a fraudulent and unlawful one. But when the sale and delivery are on a credit given to the party, although a short one, as for three or five days, the mere want of funds and known inability of the buyer to pay, at the time of the purchase, can not have the like effect as in the case of a purchase of goods upon a representation that the buyer will pay cash for them on delivery. In the former case the buyer may honestly and confidently expect to receive funds in due season, to meet his engagements; but not so in the latter. The court are of opinion that the instructions to the jury upon this point were erroneous; and that for this and the other causes already suggested, the verdict must be set aside and a new trial granted."

§ 224. Conspiracy — Insufficiency of Evidence of Connection of Prisoner. In R. v. Read,1 Joseph Reed, together with George Tagg, Richard James,

1 6 Cox, 134 (1852).

William James, Samuel Bould, Samuel Broughton, Charles Challinoe, otherwise Charles Chawner, otherwise Charles Brown, and Thomas Hughes, were indicted for conspiracy to defrand, and for obtaining money by false pretenses. The indictment contained twelve counts. The first count charged the defendants with obtaining a horse from William Mellor, by falsely pretending that a glandered mare was sound. The other counts were for conspiracy, and charged the defendants with conspiring to defraud Mellor, by putting off and representing unsound horses as sound.

All the defendants, with the exception of Josiah Read and William James, were tried at the Spring Assizes, before Mr. Baron PLATT, when some of them were convicted and others acquitted. The defendant Read, had not surrendered at that time, but having now done so, was put on his trial alone.

The evidence of the prosecutor, William Mellor, was, that some time previously to November, 1851, he bought a black mare from the defendant Read, who was a horse dealer, and kept a public house at New-Castle-Under-Lyne. The defendants Tagg, Richard, James, Bould and Hughes were present. It turned out a kicker. She broke a window three days after he purchased her. Bould and Hughes subsequently came to the prosecutor at Burslem, and told him the black mare would kill him if he kept her, and they knew where there was a good honest mare likely to suit him. They appealed to him several times about her. On the 23d of November, the prosecutor went with them to the Hare and Hounds public house in Newcastle, kept by Richard James. Tagg came in while they were there. James brought a bay mare out, and he and Tagg said it was a good honest mare. They treated the prosecutor to some wine. Tagg offered him £2 to exchange the black mare for the bay, and the bargain was struck. In a few hours, the prosecutor found the bay mare was glandered, and he took her back to Tagg and James, at Newcastle. They laughed, and said it was a cold. The prosecutor said he must call on Tagg for the black mare or its worth. He said he had sold it. The prosecutor after. wards agreed to take £2 for the bay. On the 12th of December, Read, Challinoe, and others, brought him another black mare. Read said she was a very good one and would get some money together. The prosecutor gave one of his own horses in exchange. On trying the mare he found she could not do any work, being very ill and broken winded. He afterwards returned her to Read, but received no compensation from him or any one else. Evidence was then adduced, showing that the bay mare purchased by the prosecutor from Tagg on on the 23d of November, was in possession of the defendant, Samuel Broughton, on the 17th of October previous, and that she was then glandered. The mare was hired on that day for a journey, and was put up at Read's public house. Read came out and asked if that was not Broughton's mare, and seeing the state she was in, said it was a great pity. It was also proved that at the latter end of October, William James, Broughton and Challinoe, sold a mare to a person of the name of Ryder, for a horse of his and £2 in money. Read was not present at the transaction, but in half an hour afterwards, he took away the horse sold by Ryder. In a short time, Ryder discovered that the mare was glandered, and returned it to William James, who said, when Broughton came, Ryder should have his horse back again. Broughton did not come, and James afterwards said that Broughton had sold the horse, and it was seen a few days afterwards in Tagg's possession in Newcastle fair. Some evidence was given to prove the identity of the mare sold to the prosecutor on the 23d of November. Witnesses were then examined to prove Read's connection with the зale

of an unsound horse to William Cole, several months before, and another to Luke Lawton, in May, 1851, but there was no evidence to connect any of the other defendants with these transactions.

Thomas Blood, a superintendent of police, stated that Read was in the habit of attending fairs, and was frequently in the company of the two James'. The case for the prosecution having closed

one.

CRESSWELL, J., said: "The charge of conspiracy against Read failed. The evidence merely throws a discredit on him as a dealer. The first count charges the defendants with a false pretense, by putting off a glandered horse as a sound That will not do as against Read. The other counts are for conspiracy, but in truth the whole twelve counts are the result of one transaction, and I do not think there is enough evidence to leave to the jury to form any opinion upon. The defendants are low dealers, and Mellor, the prosecutor, bought a black mare from Read, and was no doubt cheated by him. Then Tagg, being the owner of a glandered mare, and Richard James, the keeper of a public house, take advantage of the circumstance, and tell Mellor he has bought a kicking mare, and they get it from him, imposing the glandered mare on him in exchange. That is the conspiracy charged and proved, and on which some of the parties were properly convicted. It is true, it is not necessary to prove that all the parties met together. If any evidence or circumstance had been adduced, safely leading to the conviction that Read was a party, although absent, that would do. But all that has been done is to raise a suspicion that from having cheated twice, he entered into the other conspiracy.

"Verdict, not guilty."

And for an instance of a conviction reversed for insufficient evidence, see the case cited below.1

1 Williamson v. Com., 4 Gratt.547 (1847).