decisions where several being liable on the same contract, the note of one or of an agent is taken for some temporary use or convenience and the original contract is not affected.

PRESUMPTION OF PAYMENT BY ACCEPTANCE OF NOTE may be rebutted: Manesly v. McGee, 4 Am. Dec. 105; Vurner v. Nobleborough, 11 Id. 48; Perrin v. Keene, 36 Id. 759. That the giving of a note for a pre-existing debt is only prima facie evidence of payment in those states where the Massachusetts doctrine prevails, is well settled: Hutchins v. Olcutt, 24 Id. 634; Lazell v. Lazell, 36 Id. 352; Perrin v. Keene, Id. 759. In other states, as will be seen upon an examination of the cases referred to in the note to Arnold v. Delano, 50 Am. Dec. 754, a note is not even prima facie evidence of payment, unless it is so agreed between the parties. Hence, under either rule, if it be shown not to have been so intended, it is no payment.

RIGHT OF PAYEE OF NOTE TO RECOVER ON ORIGINAL CONSIDERATION, where the note is unavailable, and necessity of producing the note to be can. celed: See Holmes v. De Camp, 3 Am. Dec. 293; Glenn v. Smith, 20 Id. 452; Wyman v. Rae, 37 Id. 70. As to the right to recover against a corporation upon the original liability where a note of an agent has been taken which does not bind the corporation, see Emerson v. Providence Hat Mfg. Co., 7 Id. 66. See, generally, as to the right of recovery on the money counts where there is a special contract, Tebbetts v. Pickering, ante, 48, and citations in the note thereto.

NOTE BY AGENT OF CORPORATION IN HIS OWN NAME BINDS CORPORATION, when: Despatch Line v. Bellamy Mfg. Co., 37 Am. Dec. 203. See also Commercial Bank v. Newport Mfg. Co., 35 Id. 171; Merchants' Bank v. Central Bank, 44 Id. 665. And see Barker v. Mechanic Fire Ins. Co., 20 Id. 664, holding a note by the president of a corporation in his own name not to be binding on the corporation. That a note payable to the cashier" of a bank may be indorsed by the bank and proved by parol to be its property, is held, citing the principal case, in Walker v. Popper, 2 Utah, 98. See, on that point, Rose v. Laffan, 42 Am. Dec. 376 and note.

CORPORATION OR PARTNERSHIP MAY ADOPT NAME of its agent, or other name, for business purposes, so that acts done in that name will bind it as effectually as its regular name, but clear and cogent proof that the act is in fact the act of the corporation or firm: Brown v. Parker, 7 Allen, 338; Williams v. Robbins, 16 Gray, 82. Parol evidence that the name "Pompton Iron Works" in a bill is the adopted name of a certain firm, is admissible: Fuller v. Hopper, 3 Gray, 341, all citing the principal case. See also Bank of Rochester v. Monteath, 43 Am. Dec. 681, and note.

MISNOMER OF CORPORATION IN CONTRACT, EFFECT OF: See Berks etc. Turnpike Road v. Myers, 9 Am. Dec. 402; Hagerstown Turnpike Road v. Creeger, Id. 495; Culpeper Mfg. Soc. v. Digges, 18 Id. 708, and notes.

CORPORATION MAY BE BOUND BY IMPLIED CONTRACT: See Hayden v. Middlesex Turnpike, 6 Am. Dec. 143; Canal Bridge v. Gordon, 11 Id. 170; Mott v. Hicks, 13 Id. 561, note.

AUTHORITY OF AGENT TO BIND CORPORATION MAY BE IMPLIED from corporate acts, from circumstances, from subsequent assent or ratification, etc: Ridgway v. Farmers' Bank, 14 Am. Dec. 681; Frankfort etc. Co. v. Churchill, 17 Id. 159; Pennsylvania etc. Co. v. Dandridge, 29 Id. 543; Everett v. United States, 30 Id. 584; Despatch Line v. Bellamy Mfg. Co., 37 Id. 203; American Ins. Co. v. Oakley, 38 Id. 561; Planters' Bank v. Sharp, 43 Id. 470; Merchants' Bank v. Central Bank, 44 Id. 665; Bank of the State v. Comegys

46 Id. 278; Mayall v. Boston etc. R. R., 49 Id. 149, and cases cited in the notes thereto. The principal case is cited as an authority to the same effect, in Sherman v. Fitch, 98 Mass. 64; Sceery v. Springfield, 112 Id. 514. Evidence that one has acted as president of a corporation without proof of a vote of the directors, is sufficient evidence of authority to indorse note as such president: Topping v. Bickford, 4 Allen, 122, also citing Melledge v. Boston Iron Co.

INSTRUCTION ON PARTIAL STATEMENT OF EVIDENCE in prayer, whether court bound to give: See Whiteford v. Burckmyer, 39 Am. Dec. 640, and the note thereto. See also Stockton v. Frey, 45 Id. 138, and note.

INSTRUCTION ASSUMING FACTS OF WHICH THERE IS NO PROOF should be denied: Whiteford v. Burckmyer, 39 Am. Dec. 640. See also Harvey v. Thomas, 36 Id. 141, and note. And generally, instructions which are irrelevant and inapplicable to the case should not be given, as they tend to mislead the jury: Stout v. McAdams, 33 Id. 141. The court is not authorized to give instructions on abstract principles of law: Zachary v. Pace, 47 Id. 744. But that erroneous abstract instructions which could not mislead the jury are no ground of reversal, see Arthur v. Broadnax, 37 Id. 707; Porter v. Woods, 39 Id. 153; Armstrong v. Tait, 42 Id. 656; Zachary v. Pace, 47 Id. 744, and notes.

DELIVERY OF GOODS AT TIME AND PLACE APPOINTED is a good perform ance of a contract therefor: Case v. Green, 30 Am. Dec. 311.

CASES

IN THE

SUPREME COURT

OP

MICHIGAN.

PEOPLE V. RICHARDS.

[1 MICHIGAN, 216.]

INDICTMENT FOR CONSPIRACY TO CHEAT AN INDIVIDUAL will lie.

CRIME OF CONSPIRACY DOES NOT DEPEND UPON KIND OF PROPERTY which

it was the object of the conspiracy to obtain; and an indictinent for con. spiracy to cheat an individual out of lands lies.

CONSPIRACY MAY BE INDICTABLE although the act to be done, if done by an individual, or the means made use of, would not be indictable; the doctrine that an indictment only lies for conspiracy to commit a crime or to do a lawful act by criminal means denied.

CONSPIRACY TO COMMIT MISDEMEANOR IS NOT MERGED in the misdemeanor, semble.

INDICTMENT DOES NOT CHARGE CONSPIRACY TO CHEAT BY FALSE PRETENSES where the acts charged as done were, that one F. was about to prosecute the defrauded person for an attempt to commit a rape upon his daughter, and that by the testimony of the daughter he would be convicted and sent to the state prison, and must leave the state; the charges are not of existing facts, but of things which a third person has threatened to do-upon which no indictment for false pretenses can be predicated.

AGREEMENT OR COMBINATION MUST BE SET OUT IN INDICTMENT FOR CONSPIRACY; the crime does not consist in the mere combination, but where to this is added an illegal object, then it becomes criminal; and where neither the conspiracy nor the object to be attained is unlawful, but the means by which it is to be executed are criminal, then it is necessary to set out the means intended to be used, as a component part of the offense. OFFENSE OF CONSPIRACY DEPENDS UPON THE UNLAWFUL AGREEMENT, and not on the act which follows it; the acts are but evidence of the agree ment. INDICTMENT FOR CONSPIRACY USUALLY SETS OUT OVERT ACTS, such as may have been done by any one or more of the conspirators in order to effect the common purpose of the conspiracy, but this is not essentially neces sary.

GENERAL CHARGE OF CONSPIRACY IN INDICTMENT, stating the object and intent, is sufficient.

WHERE CONFEDERACY TO DO UNLAWFUL ACT IS INDICTABLE, although no means have been agreed upon, an indictment for such an offense, where the means were agreed upon, need not state them, as they form no part of the offense, and it is complete without them. PERSONS ARE INDICTABLE FOR CONSPIRACY, where they agree to cheat a third person out of his lands and goods, and in pursuance of the agree mert falsely pretend that one F. is about to prosecute him for an attempt to commit a rape upon his daughter, and that by the testimony of the daughter he will be convicted and sent to the state prison, and must leave the state.

INDICTMENT for conspiracy, containing three counts; the first two counts charged, substantially, that Richards and Pelton conspired to cheat one Laton Hoxie of his lands, tenements, goods, etc.; that in pursuance of this agreement, they falsely pretended that one Farmer was about to prosecute Hoxie for an attempt to commit a rape upon his infant daughter, and that by the testimony of the daughter he would be convicted and sent to the state prison; that Richards and Pelton knew that Farmer would not prosecute the pretended charge, but Hoxie, being a man of weak intellect, was pursuaded to convey to them his lands, tenements, goods, etc., without consideration. The third count charged the defendants generally with unlawfully conspiring to cheat Hoxie out of his lands, tenements, goods, etc. The defendants were tried and found guilty. The questions reserved were as to the sufficiency of the indictment. Howell, for the people.

Backus, contra.

By Court, WING, J. The counsel for the defendants insists that cases of indictable conspiracies at common law are classed under two heads; either there must be a charge of a conspiracy to commit a criminal act, or to commit an act not criminal by criminal means. That in the one case the offense is to be determined by the nature of the object, in the other by the nature of the means.

This question was elaborately argued by Senators Spencer and Stebbins, the first giving the judgment of the majority, and the latter of the minority of the court of errors in New York, in the case of Lambert v. The People, 9 Cow. 578. The charge set forth in the indictment in that case was in substance that the defendants conspired, by wrongful and unjust means, to cheat the Sun Fire Insurance Company and other persons of their goods and

chattels; and that in the execution of said conspiracy and in pursuance thereof, and by certain indirect and undue means, did cheat and defraud the said company of their goods, chattels, and effects-describing them—and thereby impoverished and injured the company, etc.

The supreme court sustained the indictment, but their judgment was reversed by the court of errors. There were many points made and decided in that case, some of which are raised in this case. Upon a careful examination of the arguments of the court and the senators, we are constrained to adopt the views of the supreme court and the minority of the senate, as being sustained by the common-law decisions.

In Arch. Cr. Pl. 507, the author says a conspiracy is an agreement between two or more persons: 1. Falsely to charge another with a crime punishable by law-either from a malicious or vindictive motive or feeling towards the party, or for the purpose of extorting money from him; 2. Wrongfully to injure or prejudice a third person or any body of men in any other manner; 3. To commit an offense punishable by law; 4. To do an act with an intent to pervert the course of justice, etc. 3 Chitty's Cr. L. 1139; 1 Hawk. P. C., b. 1, c. 72, sec. 2, support the same doctrine. In the second class we have an authority for au indictment for a conspiracy to cheat an individual: See 7 Am. Jurist, 445. It is said, however, that an indictment will not lie for a conspiracy to commit any mere civil trespass: Arch. Cr. Pl. 507.

Mr. Chitty, at the page cited above, says, "there are perhaps few things left so doubtful in the criminal law as the point at which a combination of several persons in a common object becomes illegal; certain it is, that there are many cases in which the act itself would not be cognizable by law if done by a single person, which becomes the subject of indictment when affected by several with a joint design." He further remarks, "it might be inferred from the decisions that, to constitute a conspiracy, it is not necessary that the act intended should be in itself illegal, or ever immoral-that it should affect the public at large, or that it should be accomplished by false pretenses; and, though it is agreed that the gist of the offense is the union of persons, it is impossible to conceive a combination, as such, to be illegal. We can rest, therefore, only on the individual cases decided, which depend in general upon particular circumstances, and which are not to be extended."

The counsel for defendants in this case cites the last sentence