which the property was sold, with costs of transportation added, and the actual value of the property at the date of the replevy. The vendee had a right on payment of the cash price and charges to receive the property and thus become the absolute owner thereof, or to take possession as consignee. He never paid the price or charges, never received the property, and never claimed the same. It had been shipped to him on the terms stated, and by no act of his had plaintiff's rights been defeated. What legal complications might have arisen, if he had taken possession from the carrier, it is not necessary to discuss. No such possession was was ever obtained or claimed by, nor was any sale made by, him in transit, and the property was still in possession of the carrier. How then could his attaching creditors acquire as against the vendor any right in the property or to the possession thereof, at least without payment of the price and charges? If they had any such right on such payment made, can they, without such payment or tender, hold the vendor to an ascertainment of the value of the property replevied, with charges added, and answer over to them for the balance? Until the vendee had an acquired right in the property, irrespective of the vendor, his creditors could not defeat the vendor's demand, nor make the vendor who had reclaimed his own property responsible to them for any supposed or actual accessions in value intermediate the shipment and replevy. This case is here free from all questions as to an assignment of a bill of lading or bill drawn against the shipment.

As no special damages for detention by defendants have been proved, the court orders judgment for the plaintiff for nominal damages and costs.

1. CONSPIRACY.

THE MUSSEL SLOUGH CASE.

(Circuit Court, D. California.)

A conspiracy is a combination of two or more persons by some concerted action to accomplish some criminal or unlawful purpose. 2. SAME EVIDENCE.

The evidence in proof of a conspiracy will generally, from the nature of the case, be circumstantial, though the common design is the essence of the charge.

3. SAME-SAME.

It is not necessary to prove that the defendants came together and actually agreed, in terms, to have that design and to pursue it by common means. If it be proved that the defendants pursued by their acts the same objects, often by the same means, one performing one part and another another part of the same, so as to complete it with a view to the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a çonspiracy to effect that object.

4. MARSHAL-OBSTRUCTION AND RESISTANCE IN EXECUTING A WRIT.

-[ED.

SAWYER, C. J., (oral charge.) This long case is about drawing to a close. Counsel have performed their duty; it now remains for the court to perform its dutv; and then it will devolve upon you to perform yours.

It is the duty of the court to give you the law applicable to this case, and it is your duty to receive it from the court, and to act upon it as so given to you. The declaration of the law is strictly and solely the province of the court, and your functions are simply to ascertain the facts. Of the facts you are the sole judges. You are the judges of the weight of the testimony, and the credibility of the witnesses, and it is for you, from all the testimony in the case, to determine the facts, and when you determine the facts it is your duty to announce that determination, whatever your sympathies may be. You will examine this case fairly, calmly, impartially, and declare the result as it strikes your minds from all the testimony in the case. You will not allow yourselves to be governed by sympathy or drawn aside from the issues by any outside considerations. You have nothing to do with the punishment;

you are simply to determine the question whether these parties are guilty or not guilty of the offences charged. The responsibility of the punishment is upon the law and the court. In view of these instuctions, gentlemen, you will examine the testimony in the case for the purpose of ascertaining the facts. The statute of the United States provides that "if two or more persons"—and there may be but two-"if two or more persons conspire to commit any offence against the United States, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty," etc. That is one provision of the statutes, gentlemen, and there is a charge in this indictment framed upon that provision charging these defendants, with several other parties who are not on trial, and others to the grand jurors unknown, with conspiracy. There must be two at least to form a conspiracy. If there were any two of these defendants that conspired to commit the offence charged, there was a conspiracy. The conspiracy charged is to commit the offence of resisting and obstructing the United States marshal in the execution of the writ set out. If you find that two or more are guilty of the conspiracy, then you must find those guilty as to whom you find the testimony sufficient to justify such a verdict.

There is another clause, gentlemen of the jury: "Every person who, knowingly and wilfully, obstructs, resists, or opposes any officer of the United States in serving, or attempting to serve or execute, any mesne process or warrant, or any rule or order of the court of the United States, or any other legal or judicial writ or process, or assaults or beats or wounds an officer duly authorized in serving or executing any writ, rule, order, process, or warrant, shall be punished," etc.

Now, gentlemen, there are two charges in this indictment: one is that these defendants, with others, conspired to obstruct and resist the United States marshal in executing a writ, and doing some act to effect the object of that conspiracy; and the other is, in actually obstructing or resisting the marshal in the execution of the writ. Those two

offences are charged in this indictment, and those are the questions for you to examine.

Gentlemen, anything outside of the question as to whether the defendants, or some of them, are guilty of conspiring and taking some measures to carry out the object of the conspiracy, and of the issue as to whether there was any obstruction or resistance of the marshal in executing the writ, is irrelevant to this matter. There has been a large amount of testimony introduced here, gentlemen, simply as bearing upon the question of conspiracy and intent. When you get beyond thatbeyond throwing any light upon those issues-you are to discard it.

Gentlemen, there was a judgment in favor of the Southern Pacific Railroad Company against the two parties, Storer and Brewer, put in evidence, and a writ of execution issued upon that judgment. You have nothing whatever to do with the merits of that controversy. The law has appointed courts to settle such controversies. It does not allow the parties to determine their own cases. It provides a judiciary for the purpose of inquiring into and settling legal controversies. When this controversy between the Southern Pacific Railroad Company and Storer and Brewer was tried by the court and the judgment entered, that settled the matter for all time, unless that judgment should in some form be set aside. The merits of the controversy, or as to whether there was any error in the judgment, is not a question for you to consider; it is not before you at all. You are to presume it was settled correctly until otherwise determined. At all events it was so settled, whether correctly or erroneously does not matter for the purposes of this case.

There was but one way of lawfully preventing the execution of that judgment when demanded by the plaintiff, and that was by an appeal to the supreme court of the United States, taken within the proper time, and in the mode prescribed by law. If no appeal is taken, and the judgment is not reversed, that judgment is just as binding, just as final, as though it were a judgment of the supreme court of the United States. It settles the rights of those parties for all

time. Even if, in the appeal of the three cases that were appealed, those judgments should be reversed, it would in no way affect this judgment. The only way of affecting this judgment is to reverse it or to set it aside by some other recognized judicial proceeding in the courts; and, the judgment being perfected, the time for staying proceedings on appeal having expired, the plaintiff had a right to the execution of that writ, and it was the duty of the government of the United States, if it required all the force within its control, to execute that writ and that judgment; and if the government should fail to execute that writ, while that judgment stands and is still subsisting, it would fail to perform the proper and most important functions of the government, and if it should submit to the resistance anarchy would necessarily come.

Any one who conspires to resist the execution of that writ commits an offence against the laws of the United States, and any one who resists the officers in the execution of that judgment and writ commits an offence against the laws of the United States; and those are the offences that are charged in this indictment, and you have simply to inquire whether those offences have been committed or not, without reference to any other or any extraneous questions or considerations.

Now, gentlemen, a conspiracy is "a combination of two or more persons by some concerted action to accomplish some criminal or unlawful purpose." That is the definition of conspiracy, so far as it is applicable to this case. "A combination of two or more persons"-it may be two, but there must be at least two, and there may be more "by some concerted action to accomplish some criminal or unlawful purpose."

Now, there is a charge here that these defendants, with others, concerted together to resist the marshal; that there was a concerted action; that they conspired together to resist the marshal. Gentlemen, the evidence of conspiracy is generally circumstantial. It is not to be supposed that parties. enter into a formal written or verbal obligation, or, if they do, that the obligation can be proven in terms. "The evidence in proof of a conspiracy will, generally, from the nature of