21 Am. Dec. 122; State v. Younger, 1 Dev. L. 357; S. C., 17 Am. Dec. 571; State v. Christianbury, Busb. L. 48; Hinchman v. Richie, Bright. 143; Respublica v. Ross, 2 Yeates, 1; Commonwealth v. Corlies, 8 Phil. 450; Collins v. Commonwealth, 3 Serg. & R. 220; Commonwealth v. McKisson, 8 Id. 420; Commonwealth v. Bliss, 12 Phil. 580; Heine v. Commonwealth, 91 Pa. St. 115; Johnson v. State, 3 Tex. App. 590; State v. Noyes, 25 Vt. 415. "The offense of conspiracy is committed when to the intention to conspire is added the actual agreement:" United States v. Donau, 11 Blatch. 168; nor need the means be settled and resolved on at the time of the conspiracy: The King v. Gill, 2 Barn. & Ald. 204; much less need the conspirators succeed: State v. Norton, 3 Zab. 33. If overt acts were charged in the indictment and sustained by proof, such acts would be merely matter of aggravation: State v. Noyes, 25 Vt. 415; Collins v. Commonwealth, 3 Serg. & R. 220; or evidence of the crime: Commonwealth v. Corlies, 8 Phil. 450. But in New Jersey, although it was acknowledged that such were the common-law doctrines, still under the statute some act must be done in execution of the design agreed upon to complete the offense: State v. Norton, 3 Zab. 33.

A conspiracy must be shown, and evidence that each one acted illegally or maliciously will not support an action for a conspiracy, without proof that the defendants conspired together: Newell v. Jenkins, 26 Pa. St. 159 (compare Rex v. Cope, 1 Stra. 144); and there must be a direct intention that injury shall result from the conspiracy, or the object must be to benefit the conspirators to the prejudice of the public or the oppression of the individual: Commonwealth v. Ridgway, 2 Ashm. 247. The agreement may be express or implied, and it is not essential that any but the leading conspirator know the exact part which each is to perform: United States v. Rindskopf, 6 Biss. 259. And if it be proved that the defendants pursued by their acts the same object, often by the same means, one performing one part and another another part of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object: The Mussel Slough Case, 5 Fed. Rep. 680. The conspirators might not be even acquainted with each other: People v. Mather, 4 Wend. 229; S. C., 21 Am. Dec. 122. And when a number of persons meet together for different purposes, and afterwards join to execute one common purpose to the injury of the property of another, it is a conspiracy, and it is not necessary to prove any previous plan amongst them against the person injured: Lowery v. State, 30 Tex. 402. Nor would it be a defense to say that the whole scheme was concocted before he became an associate: Den d. Stewart v. Johnson, 3 Harr. (N. J.) 87.

Many acts which, if done by an individual, are not indictable, are punishable criminally when done in pursuance of a conspiracy between two or more persons: State v. Rowley, 12 Conn. 101; and the act of an individual may be lawful, and yet, if he combines with others to do the same act, with the intention to prejudice the public to his own benefit, if prejudice and oppression are the necessary consequences, he may commit an indictable offense: Commonwealth v. Tack, 1 Brews. 511. Wharton, in his work on Criminal Law, does not approve of extending the law on this point. In section 2288 of the seventh edition of his work, he says: "Undoubtedly it has been held that there are cases in which persons may be indicted for an offense committed in concert, when they would not be severally indictable for such offense if committed individually. These decisions can not now be shaken, except by the courts who pronounced them; but any further extension of conspiracy in this direction should be resolutely opposed. A distressing uncertainty will oppress the law if the mere fact of concert in doing an indif

ferent act will be held to any greater extent than at present to make such act criminal. We all know what offenses are indictable, and if we do not, the knowledge is readily obtained. Such offenses, when not defined by statute, are limited by definitions which long processes of judicial interpretation have hardened into shapes which are distinct, solid, public, and permanent. It is otherwise, however, when we come to speak of acts which are quasi criminal or immoral. These there has never been any judicial attempt to define or legislative attempt to codify. No man can know in advance whether any particular enterprise in which he may engage falls under either of these heads. The chief object of penal jurisprudence is to prevent crime by attaching penalties to specific offenses. Here, however, there are no specific offenses to which penalties can be attached. Nor can we continue

to accept the reasons by which this indefinite extension of conspiracy has been justified. It used to be said that the combination of two or more persons to do an act invests it with a criminality which it does not otherwise possess. Undoubtedly this is so with riot, which depends on tumult, which again depends on plurality of agents; but riot is positively defined by the law, and all who engage in a riot have means to know what it is, and know that it is punishable. But can this be predicated of combinations which the law does not in advance pronounce to be unlawful? One of two alternatives we must here accept. We must, with the old English judges, look upon all voluntary combinations as suspicious, and objects of judicial suppression, or we must declare that only such combinations are penally cognizable, as are declared beforehand to be unlawful."

Conspiracy is, in its nature, a joint offense, and it can not be committed by one alone; but the proof must show that two or more persons were engaged in the offense: Pollard v. Evans, Show. 380; United States v. Miller, 3 Hughes, 553; Evans v. People, 90 Ill. 384; State v. Christianbury, Busb. L. 48; Commonwealth v. Manson, 2 Ashm. 31; Commonwealth v. Irwin, 8 Phil 380. Consequently an action for conspiracy will not lie against a husband and wife alone, because they are but one person: Kirtley v. Deck, 2 Munf. 15; although if a man and woman marry in the name of another for the purpose of raising a specious title to the estate of the person whose name is assumed, it is a conspiracy: The King v. Robinson, 1 Leach C. C. 37; and if two persons alone are indicted, both must be convicted, and an acquittal of one would be an acquittal of the other: State v. Tom, a Slave, 2 Dev. L. 569; Jones v. Baker, 7 Cow. 445; and the effect would be the same if a nolle prosequi was entered as to one. In such a case a verdict of guilty against the other could not be sustained: State v. Jackson, 7 S. C. 283; S. C., 24 Am. Rep. 476. But a judgment may be given against one before a conviction of the other: Rex v. Kinnersley, 1 Stra. 193; and one of them can not, on a writ of error, object to a discontinuance of process against the other: Wright v. The Queen, 14 Q. B. 148. A conviction of two persons is not, however, always necessary. Thus if three persons were engaged in a conspiracy, and one of them died before trial and another was acquitted, the survivor may be tried and convicted: People v. Olcott, 2 Johns. Cas. 301. And on an indictment alleging that two persons named in it conspired together, together with divers others whose names were unknown, one of the persons indicted may be convicted and the other acquitted, if the jury are satisfied from the evidence that any other persons conspired with him to commit the offense: State v. Adams, 1 Houst. Cr. Cas. 361; and on an indictment of three persons, tried separately, if one of them is convicted before the others are tried, the possibility of the others being found not guilty is not a sufficient reason for holding the judgment irregular: Regina v. Ahearne, 7 D. & R. 6.

CONSPIRACIES TO CHEAT AND DEFRAUD. -"A diversity of opinion seems to have arisen upon the question, whether, if two or more persons agree to cheat or defraud another of lands or goods, without agreeing upon the particular means to be employed, the conspiracy is then indictable; or whether they must go further and determine the means, when it will be indictable or not, according to the nature of the means. The question indeed, as usually presented in the reports, wears the aspect of one concerning the mere form of the allegation in the indictment; but an accurate examination shows the difference to extend further:" 2 Bishop on Cr. Law, 7th ed., sec. 199. In England it is a settled rule that the indictment need not set forth the means to be used: Id., sec. 200; 2 Wharton on Cr. Law, 7th ed., sec. 2298. In America the rule seems to be different, and it has been held that as cheating and defrauding a person of his property are not necessarily a crime at common law, an indictment charging a conspiracy to cheat and defraud must contain averments setting out the unlawful means by which the object was to be accomplished; this rule has been laid down in Maine: State v. Williams, 48 Me. 218; State v. Roberts, 34 Id. 320; Massachusetts: Commonwealth v. Shedd, 7 Cush. 514; Commonwealth v. Eastman, 1 Id. 189; Commonwealth v. Wallace, 16 Gray, 223; Michigan: Alderman v. People, 4 Mich. 414; New York: Lambert v. People, 9 Cow. 578; and March v. People, 7 Barb. 391, where it was held that although there may have been an intention to defraud, yet if the means could not possibly have that effect, the offense is not complete; the contrary rule prevails in Pennsylvania: Commonwealth v. McKisson, 8 Serg. & R. 420. This subject is discussed in the works of the authors above cited, and treated at length by Bishop in the second volume of his work on Criminal Procedure, sections 204-222, to which the reader is referred. We will proceed to consider those cases in which the question was as to whether the offense proved was itself a conspiracy.

To charge persons with conspiracy to cheat and defraud a third person, there must be a collusion and participation in the scheme or its execution. Mere silent observation and acquiescence are not sufficient. Unless the persons charged, by some deed or word, become parties to the plot to cheat, they neither influence the acts of the person defrauded, nor contribute to bis losses, and therefore are not liable to this action: Brannock v. Bouldin, 4 Ired. L. 61. An indictment lies for a conspiracy to defraud an individual of his property: Lambert v. People, 7 Cow. 167; and also in many cases where, through the false representations of others, a party has been defrauded: State v. Mayberry, 48 Me. 218. Thus partners may be convicted of conspiracy to cheat and defraud by a false representation as to the solvency or trade of another, although the representation was oral, and one for which one would not per se be liable civilly: Regina v. Timothy, 1 Fost. & F. 39; see also Commonwealth v. Warren, 6 Mass. 74; and the same, of course, would be true where partners recommended an insolvent person as worthy of credit, whereby the plaintiffs were induced to trust him with goods, which the defendants immediately attached with other goods of the insolvent's, thus causing the plaintiffs to lose their goods: Patten v. Gurney, 17 Mass. 182. So where A. and B. conspire to make a representation, knowing it to be false, that horses were the property of a private person, and not of a horse-dealer, thereby inducing a purchase, they are guilty of conspiracy: Queen v. Kenrick, 5 Q. B. 49; S. C., D. & M. 208. And so are parties conspiring to buy a horse for much less than its real value, by falsely represent ing to the seller that the horse is unsound, and that one of them had sold the horse for the smaller price: Regina v. Carlisle, Dears. C. C. 337; but no action

can be maintained against persons for falsely representing that a horse is sound unless there is evidence of a concert between the parties to effect a fraud: Rex v. Pywell, 1 Stark. 402; and persons inducing the prosecutor to buy certain plated ware at auction, by means of false representations as to its quality, are not liable to indictment, as an agreement between persons to dispose of goods in this way is not conspiracy: Regina v. Levine, 10 Cox C. C. 374. Chambers, Common Sergeant, in this case, said: "It is most important not to bring within the criminal law the ordinary enhancing of value and quality by the seller of the goods. There is always a conflict of knowlege and skill between a buyer and seller, the one wishing to buy as advantageously and the other to sell as advantageously as he possibly can, and it would be very dangerous to extend the criminal law to such cases. At present, the line is fixed, and there must be a false representation of an existing fact, operating upon the mind of a buyer, and deceiving him in such a manner that he can not protect himself against it." But a mock auction, with sham bidders, who pretend to be real bidders, for the purpose of selling goods at prices grossly above their worth, is an offense at the common law, and those aiding or abetting such a proceeding may be indicted for conspiracy with intent to defraud: Rex v. Lewis, 11 Cox C. C. 404; so also brokers are indictable if they agree before a sale at auction that only one of them shall bid for each article sold, and that all articles thus bought by any of them shall be sold again amongst themselves at a fair price, and the difference between the auction price and the fair price be divided among them: Levi v. Levi, 25 Eng. L. & Eq. 377; and so also are those who conspire to sepa rately induce a third person to purchase each other's goods for them at an advanced price, in his own name, without intending to pay for them, thereby intending to charge him with their goods at the advanced price: State v. Rowley, 12 Conn. 101; but the fact that the plaintiffs and other buyers of farm produce at a certain village were combined in secret partnership is no ground for the recovery of damages by one who has sold them such produce, from time to time, in ignorance of the partnership, where it appears there was, nevertheless, a healthy competition, and that the defendants were paid a fair market price: Fairbank v. Newton, 50 Wis. 628.

A combination to secrete or dispose of the property of a debtor for the purpose of defrauding his creditors is indictable: Commonwealth v. Goldsmith, 12 Phil. 632; so would it be if such a combination was for the purpose of avoiding an expected adjudication of bankruptcy, even though the adjudication was not made: Heyman v. The Queen, L. R., 8 Q. B. 102; S. C., 12 Cox C. C. 383; or if in pursuance of such a combination, the personalty of the debtor was attached and concealed: Hall v. Eaton, 25 Vt. 458. In Heine v. Commonwealth, 91 Pa. St. 145, H. and others were indicted and convicted for conspiring to defraud creditors; H. being the owner of a store, and assigning the goods in it to a clerk for that purpose. And a general creditor who procures the assignment of a deed of trust which his debtor has given of his exempt personalty, and substitutes a trustee who refuses to receive payment, sells the property, and produces a balance which the creditor garnishes, is with his accomplice guilty, if they acted in concert under an agreement to accomplish the result: Ellzey v. State, 57 Miss. 827. As conspiracies to obtain goods by false pretenses or to cheat and defraud are indictable: Johnson v. People, 22 Ill. 314; Rhoads v. Commonwealth, 15 Pa. St. 272, and cases cited ante, of course those entering a combination by which one person was to obtain the goods of another on credit, and then abscond, are guilty: Commonwealth v. Ward, 1 Mass. 473; Place v. Minster, 65 N. Y. 89; but the fact that

a merchant buys goods on credit, and then assigns them to an assignee with. out consideration, who removes them out of the state, does not make the parties guilty of conspiracy, where the goods were removed with a bona fide intent to sell them for the benefit of creditors: Whitman v. Spencer, 2 R. L 124. Persons combining to cheat one of hats by bargaining with him a certain quantity of wine pretended to be good wine of the kingdom of Portugal, called New Lisbon, are indictable: Queen v. Macarty, 6 Mod. 301; S. C., 2 East Cr. L. 823; and so are parties conspiring to defraud a party to a contract of exchange, and using a forged deed to effectuate their object: State v. Bradley, 48 Conn. 535. Conspiracies between a partner and a third person to cheat the copartner are indictable: State v. Cole, 39 N. J. L. 324; Queen v. Warburton, L. R., 1 Cr. Cas. Res. 274; but a complaint for conspiracy by a partner and a third person, by which the third person brought an action against the partner conspiring, who confessed judgment, and thus broke up the business, should be dismissed if the partner owed a debt for the full amount to his co-conspirator, although it was not yet due: Neudecker v. Kohlberg, 14 Am. L. Rev. 812.

Employees combining to cheat and defraud the employer are guilty. This rule would apply where the employees of a bank conspire to defraud it: State ▼. Buchanan, 5 Har. & J. 317; S. C., 9 Am. Dec. 534; or where an employee conspired with a third person for that purpose: Commonwealth v. Foering, 4 Pa. Law J. R. 29; or where the employees of a dyer used the dyeing materials on articles not intrusted to them for dyeing, and not belonging to themselves or their families, to their employer's loss: Regina v. Button, 11 Q. B. 929. An indictment will not lie for a conspiracy to commit a civil injury of any description that is not in itself an indictable offense. Thus, it is not an indictable offense for several persons to conspire to obtain money from a bank by drawing their checks on the bank when they have no funds there: State v. Rickey, 9 N. J. L. 293; nor against several persons who induce a testator to revoke a will in favor of a third party by means of false representations, as the revocation merely deprives the devisee of an expected gratuity, without interfering with any of his rights: Ilutchins v. Hutchins, 7 Hill, 104 (see further, State v. De Witt, 2 Hill (S. C.), 282; S. C., 27 Am. Dec. 371, as to the effect of destroying a will to defraud devisees); nor for the sale and transfer of a railroad excursion ticket, unless there was a previous concert between them to obtain the ticket for the purpose of its being fraudulently used: Regina v. Absolon, 1 Fost. & F. 498; nor for a conspiracy between two persons to defraud a third in an unlawful enterprise: State v. Crowley, 41 Wis. 271; S. C., 22 Am. Rep. 719. On the other hand, an indictment will lie if a man and woman marry in the name of another person for the purpose of raising a specious title to the estate of the person whose name is assumed: The King v. Robinson, 1 Leach C. C. 37; or for the destruction or erasure of the indorsement on a promissory note, with intent to defraud: State v. Norton, 3 Zab. 33; or for a conspiracy to obtain the prosecutor's acceptance, although he did not intend to take it up, and the bill was never in his hands, except for his acceptance: Queen v. Gompertz, 9 Q. B. 824; or for combination to cheat, by offering to sell forged foreign bank notes of a denomination the circulation of which is prohibited by statute: Twitchell v. Commonwealth, 9 Pa. St. 211; or for a fraudulent conspiracy to obtain a knowl. edge of certain things known to so few in a certain business that the knowl. edge made the business very profitable: Jones v. Baker, 7 Cow. 445; or for conspiring to ruin a card-maker's trade, by bribing his apprentices to put grease in his paste, thus spoiling the cards: Rex v. Cope, 1 Stra. 144.

Conspiracies to cheat one at gaming are held indictable; as where one con⚫