order in a proceeding in aid of execution, under section 490 of the civil code of that state, directing a garnishee to pay to the judgment-creditor money which he owed the judgment-debtor, was not a judgment and did not determine finally the liability of the garnishee. The language of the opinion is as follows: "The making of it [such an order] is not an adjudication between the parties. It does not determine their ultimate rights. It simply gives to the creditor the same right to enforce the payment of the money from the garnishee, that the debtor previously had. It is in effect only an assignment of the claim from the debtor to the creditor. The creditor gains no more or greater right than the debtor had, and the garnishee loses no rights. And the payment of the money can be enforced from the garnishee to the creditor only by an ordinary action." Board of Education v. Scoville, 13 Kas. 32. In a previous case, Arthur v. Hale, 6 Kas. 165, it was held to be error to award execution against a garnishee to collect the money, in case he failed to make payment according to the order. As the practice in the courts of the United States must conform, as near as may be, to that in courts of the state (Rev. St., sec. 914), these decisions construing the practice acts of the state are binding upon the courts of the United States. It follows that the circuit court erred in directing that execution might issue in this case against the garnishee, if payment should not be made according to the order. To that extent the order of the circuit court is reversed, but in all other respects affirmed; the defendant in error to pay the costs in this Court.

The cause is remanded, with directions to modify the order complained of by striking out all that part thereof which directs that execution may issue.

NOTE.-Although the decision of the Court is in terms confined to the Kansas practice, yet the ruling seems applicable in all states which have adopted the New York code of procedure. Sec. 490 of the Kansas code is almost identical with sec. 297 of the code of New York, sec. 467 of that of Ohio, and sec. 719 of the California code; and those provisions have received the same limited construction as the Kansas section. See Rice v. Whitney, 12 O. S. 358; Edgarton v. Hanna, 11 O. S. 323; Welch v. R. R. Co., 11 0. S. 569; Bank of Rochester v. Bank of Sandusky, 6 O. S. 254; Rodman v. Henry, 17 N. Y. 482; Bank v. Pugsley, 47 N. Y. 368; Parker v. Paige, 38 Cal. 522.

war, and military supplies over the railroad of the defendant company, from the year 1868 to 1875, which claims and vouchers the plaintiff alleges were false, fraudulent and excessive.

The law under which this suit is brought being a penal statute, it should not be enlarged by implication, but should be strictly construed. 18 Wall. 409; 2 Dill. 224. Under the common law of England, corporations could be indicted for misfeasance and nonfeasance, and the same principle has been recognized by many of the state courts in this country. It being settled, however, that there are no common-law offences cognizable by the United States courts, but only such as are declared so by act of Congress, it may be questioned whether the federal courts would follow the English rule on this subject. But that question is not important in this

case.

The only point here is, whether or not corporations are included in the word persons, and as such liable to the penalty prescribed in sec. 3490 of the Revised Statutes, under which this suit is brought.

The tendency of modern decisions is to hold corporations liable as to duties and responsibilities, the same as individuals. 2 Dill. Corp. sec. 746. But after a careful reading of the law under which this suit is brought, and the Act of 1863, from which it is taken, I can not bring my mind to believe that Congress intended to include corporations within the provisions of the act. The whole tenor of the law seems to preclude its applicability to corporations. Sec. 1 of the Act of 1863 (U. S. Statutes at Large, vol. 12, p. 696) provides, if any person in the land or naval forces of the United States shall do any of the acts therein specified, being the same as prohibited by sec. 5438 of the Revised Statutes, he may be arrested and held to trial by court-martial, and, if found guilty, shall be punished by fine and imprisonment, etc. Sec. 3 of said act provides that any person not in the military or naval forces of the United States, * who shall do or commit any of the

acts prohibited by any of the foregoing provisions of this act, shall forfeit and pay to the United States the sum of $2,000, and, in addition, double the amount of damages which the United States may have sustained by reason of the doing or committing such act, together with the costs, etc., and every

such person shall, in addition thereto, on conviction in any court of competent jurisdiction, be punished by imprisonment not less than one, nor more than five years, or by fine, etc.

Now, sec. 1 of this act is re-enacted in substance in sec. 5438 of the Revised Statutes, omitting its restriction to persons in the land or naval forces, and making it applicable to every person, whether in the land or naval forces or not, thus doing away with the distinction between such persons as are in the United States service and those that are not, and providing a common punishment for both classes. And sec. 3 of said act, which provides for a penalty and forfeiture by civil proceedings, is re-enacted in sec. 3490 of the Revised Statutes, omitting the punishment clause, which is provided for in sec. 5438.

If possible, in construing statutes, the legislative intent must be ascertained from the words of the act itself; and as the last act does not seem to indicate an intention to enlarge the scope of the act of 1863, but merely to arrange its provisions under different sections and titles, we may well look to the original act for light on this subject.

Did section 3 contemplate bringing corporations within its provisions? It would seem, not. It provides that every person, not in the military or naval forces, who shall commit the act, in addition to the penalty and forfeiture, may be imprisoned, etc. Sec. 5438, Rev. Sts., has the same provisions. These

statutes evidently refer to such a class as are capable of being employed in the land or naval forces, or in the militia.

It is further provided, in section 5 of the first act, that, in a suit to recover this forfeiture and damages, such person may be arrested and held to bail. The same provision is contained in section 3492 of the Revision. These various provisions of the law indicate to my mind that, in using the word person in the act of 1863, and in the Revised Statutes, it was the intention to restrict it to individuals, and not to make it applicable to corporations.

The demurrer to the petition will, therefore, be sustained.

The bill and amended bill show that complainant, a colored woman, and Harriet Walker, were sisters, both being illegitimate, and born of the same mother. Complainant alleges that her sister first married one Penney, and after his death married Walker, and died in August, 1869, leaving her husband surviving, but leaving no child, and no mother, nor brother, nor sister, except herself; and she files this bill to recover certain real estate, which said Harriet owned at the time of her death, situate in the city of Memphis. The defendants demur to the bill. The demurrer was sustained and the bill dismissed, and complainant has appealed to this court.

The question presented upon the demurrer is, whether complainant, as sister of said Harriet, is entitled to the estate left by her, she having died, leaving her husband surviving. And we are of opinion, she is not.

The case of Webb v. Webb, 3 Head, 69, was one of the death of an illegitimate, in June, 1858, leaving no child, but a widow and a mother, and legitimate brothers. It was held that the rule governing the case was found in code, § 2423; and, after quoting the section, the court declares the course of descent to be, under said section, first, to the child or children of the illegitimate, if any there be; if none, then to the surviving husband or wife; if there be no surviving husband or wife, then to the mother; and if no surviving mother, then to the brothers and sisters by the mother, or their descendants.

In this case there was no child surviving; but the bill states that there was a husband surviving, and claims that complainant is entitled to the estate before him, or in exclusion of him, under § 2423, a, act of 1866-7. That section provides, "where any woman shall die intestate, having a natural-born child or children, whether she also leave a legitimate child or children, or otherwise, such natural-born child or children shall take by the general rules of descent and distribution, equally with the other child or children, the

estate, real and personal, of his, her, and their mother; and, should either of such children die intestate, without child, his or her brothers and sisters shall in like manner take his or her estate." It had been held in 1 Cold. 562, that the illegitimate, though born of the same mother, do not inherit equally with the legitimate, the estate of a deceased brother; and while a legitimate brother or sister could inherit from an illegitimate brother or sister, born of the same mother, an illegitimate brother or sister, though born of the same mother, could not inherit from a legitimate brother or sister. And, for the purpose of enabling the children, legitimate and illegitimate, born of the same mother, to take her estate equally, and also to enable them to inherit equally, as between themselves, the act of 1866-. 7, § 2423, a, was passed. But it was not intended by said act to change the course of descent prescribed in § 2423.

The chancellor's decree will be affirmed.

NOTE.-If the parties in this case had been of legitimate birth, the descent would have been cast upon the complainant, under the provisions of sec. 2420 of the Tennessee code. The act of 1819, ch. 13, was very nearly the same as sec. 2423, a, of the code, supra. This act went so far as to allow illegitimate children to take their mother's estate, according to the general rules of descent, in case she left no legitimate child. But no further rights of inheritance were conferred, so that an illegitimate child, claiming to inherit through her mother, who was dead, a share of her grandfather's estate, was held, as to this claim, to be still under the disabilities of the common law. Brown v. Kerby, 9 Hum. 460. The act of 1866-7, code 2423, a, allows illegitimates to take equally with their legitimate brothers and sisters, their mother's property; in this respect extending the benefits conferred by the act of 1819. It will be ob served that the later act, in its second clause, provides that, "should either of such children die intestate, without child, his or her brothers and sisters shall, in like manner, take his or her estate." This clause is copied verbatim from the act of 1819. It was construed, in Riley v. Byrd, 3 Head, 20, as standing independent of the first clause of the same act; and, in that case, the brothers and sisters of an illegitimate were allowed to take his estate, "in like manner," that is, according to the general rules of descent. It would seem that the complainant in the principal case esteemed her.. self entitled to inherit her deceased sister's property, under the construction given to the statute in Riley v. Byrd. Webb v. Webb, 3 Head, 69, was decided by the same court, at the same term, under the act of 1851-2, ch. 39, now sec. 2423 of the code. That act provided, "when an illegitimate child dies intestate, without child or children, husband or wife, his real and personal estate shall go to his mother, and if there be no mother living, then equally to his brothers and sisters by his mother, or descendants of such brothers and sisters." It was held, that this enumeration of relatives in order indicated, that such order was to control the descent of the property, and that, consequently, the estate of an illegitimate, dying without children, would go to his widow in preference to his brothers. This case arose in 1858, after the passage of the act of 1851-2. The case of Riley v. Byrd, heard at the same term, arose in 1848, and the court adjudicated it with reference to the act of 1819. The contrary results reached in these two cases, at the same term of the court, might appear to indicate that the two acts could not stand together, and consequently, that the later act had repealed the former. But it is clear that the last adjudication does not recognize any repeal in turn, of the act of 1851-2, by the latest act of 1866-7, though the latter is, as to the clause in question, identical with that of 1819.

It is further to be observed, that the object which, in the principal case, the court attributes to the legislature in passing the act of 1866-7, is quite different from any recognized by the Supreme Court, in 3 Head. Woodward v. Duncan, 1 Cold. 562, declined to extend the construction of these statutes so far as to allow the estate of a legitimate to descend under the provisions. "Such" children, was held to mean illegitimates only. The principal case sug. gests that the latest act was intended precisely to remove this restriction. But Riley v. Byrd construed the act of 1819 to apply in this respect only to the estates of "such" children, that is, illegitimates. The construction now

given to these statutes not only removes the restriction which the decision in Woodward v. Duncan recognized as then existing, but imposes in its place another, which takes away benefits then existing under the same statutes, as recognized by the decision in Riley v. Byrd. Legitimates might now perhaps inherit from their illegitimate brothers and sisters; but illegitimates may not.

The result of this decision is, that the case of Riley v. Byrd is disregarded, if not overruled, as an authority, and that both secs. 2423 and 2423, a, of the Tennessee code, which were apparently at variance under the decisions in 3 Head, supra, are allowed to stand together. P.

The act of March 28, 1873, entitled, "An act to establish evidence of title to real property, and to restore the records of the same and to provide for the recording of deeds," which provides that any person claiming an estate or interest in real estate where deeds have been lost or destroyed, may apply to the circuit court, and have an adjudication of the title according to the evidence adduced by him, is in conflict with sec. 32, art. 4 of the constitution of 1865, declaring that "no law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title; but if any subject embraced in an act be not expressed in the title, such act shall be void only as to so much thereof as is not so expressed," and is unconstitutional and void, so far as it provides for proceedings which are to end in final judgment.

APPEAL from St. Louis Circuit Court.

LEWIS, C. J., delivered the opinion of the court: This is a proceeding instituted under "An act to establish evidence of title to real property, and to restore the records of the same, and to provide for the recording of deeds," approved March 28, 1873. The petitioner, substantially following the terms of the act, sets out a chain of title under which she claims the real estate described, embracing a number of deeds, some of which, she alleges, have been lost or destroyed. Her prayer is as follows: "Wherefore, your petitioner prays the honorable court to hear and determine this petition, and adjudge, determine and decree that the title to the said undivided one-twenty-seventh part of said survey of land belongs to your petitioner, and that the same be vested in her in fee-simple absolute."

The first section of the act, with great particularity and much verbiage, provides, in effect, that any person claiming an estate or interest in any lands whose deeds have been lost or destroyed, may apply by petition to the circuit court of the proper county, setting forth a description of such lands, the nature of his interest therein, and a description of the lost deeds, by dates, contents, and parties therein. He shall also set forth the manner in which his deeds were lost or destroyed, and may pray the court to "hear and make a record of such evidence as the said petitioner or petitioners shall produce touching or concerning his, her or their alleged estate or interest in and to said lands described in his, her or their petition." Nothing here follows indicating, that the court is to make any such record as is prayed for. But, in lieu thereof," upon hearing such testimony and proof of title as is produced by the said petitioner or petitioners, *

the estate or interest of the said petitioner shall be adjudged and determined by the said court, according to the evidence adduced," etc.

The second section provides for notices by newspaper publications, addressed "to all whom it may concern," and by service on such persons as may be in possession of the land, and for a submission of proof at the next term of the court. The third section allows any person claiming an adverse interest in the lands to appear and answer the petition. Then, " if upon a final hearing, the court shall find the allegations of said petition to be substantially proved, it shall order a decree, * adjudging said petitioner or petitioners to be seized of an interest and estate in the said lands, according to the allegations and prayer of the said petitioner or petitioners, which said decree shall be conclusive against all persons and parties who may appear and answer in said cause, or who shall have been personally served with notice, and shall be prima facie evidence against all other persons claiming said premises, from the time of entering of the said decree."

By the fourth section it is provided that any person claiming an interest in the lands adverse to the decree, who has not been personally notified, and has not appeared and answered, may, upon twenty days' notice, move to open the proceedings; whereupon proofs shall be heard and "the court shall adjudge the ownership and title of said lands, according to the evidence adduced," etc. If no such motion be made within two years, the decree becomes conclusive against all persons whomsoever, except infants, lunatics and married women, who may appear within two years after a removal of disabillity, etc.

The fifth section provides for a recording of the decree, and makes a certified copy evidence, etc. The sixth section requires the proceedings to conform, "as near as may be, to the rules and practice in civil cases." The seventh section authorizes a second recording of any deed, etc., when the first record has been lost or destroyed.

From this synopsis of the entire act, two things are apparent: First, that in all the judicial proceedings contemplated, the only possible result is a judgment or decree of title; which judgment is to be prima facie conclusive against some persons, absolutely conclusive against some others, and, in certain conditions, conclusive against all the world. Second, that in none of these proceedings is any action to be taken for "establishing evidence," as that expression is generally understood.

To establish evidence-which means to secure its preservation for possible future use in a judicial controversy is one thing; to render a judgment or decree-which ends all controversy-is a very different thing. The one implies that the office of the testimony is yet unfulfilled; the other, that it has performed its functions and may henceforth be dispensed with. In the one case, the title or right remains in statu quo and liable to any countervailing proofs by the adverse claimants; in the other, it is divested of all existing uncertainty, and freed forever from the adverse and defeated claim. No further argument can be needed to show that the subject of rendering final judgment and decrees is not expressed in the title, " An act to establish evidence of title to real property, and to restore the records of the same, and to provide for the recording of deeds."

Section 32, article 4 of the State Constitution of 1865, declares that: "No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title; but, if any subject embraced in an act be not expressed in the title, such act shall be void only as to so much thereof as is not so expressed." The act before us violates this commandment in every aspect. Not only does it omit from the title the chief object to be effected by the body of the

act; it also excludes from the body the purpose most conspicuously displayed in the title.

The grossest frauds ever perpetrated in the legislation of the past, were those wherein an enactment enforced a duty or a measure, of which no notice appeared in the title. Careless or unsuspecting citizens and legislators, finding nothing objectionable in the title, were too often indisposed to look any further. The most obnoxious laws have thus gone undetected through all the forms of legislation, under an introductory disguise of innocence or apparent utility. Hence the practical wisdom of the constitutional provision above quoted. If any illustration of the wrongs it may prevent had been specially designed by the framer of the act under consideration, he could not have more happily succeeded. The citizen who should find nothing alarming in the establishment or perpetuation of any possible evidence affecting his right of title, might suddenly find the latter imperiled or destroyed by a process of very different import. If he happen not to have been served with personal notice, and to have neither seen nor heard of the newspaper publication "to whom it may concern," for the space of two years, he may find his title divested by a conclusive " judgment, under the fourth section, and yet never be able to comprehend how such final destruction could lurk in a mere proceeding to "establish evidence."

66

For the reason stated, we find the act unconstitutional and void, in so far as it provides for proceedings which, in every instance, are to culminate in a final judgment; no reference being made in the title to any such conclusion. It can not be assumed that the act could be constitutionally enforced by a decree merely establishing the evidence, without any judgment upon the title. For, the whole proceeding being statutory and in derogation of the common law, it must be strictly followed. No provision is made for a decree or order establishing the evidence, and, therefore, no such decree or order would be authorized.

The provisions not relating to judicial proceedings may have been deemed desirable for the purpose of giving some color to the title of the act. They propose nothing whatever, that was not already provided for under the general law.

The parties who appeared or were summoned in this cause, under the provisions of the act, demurred to the petition, as not stating facts sufficient to constitute a cause of action, specifying the unconstitutionality of the legislation relied on, with other objections which we need not notice. The circuit court sustained the demurrer. Its judgment is affirmed. All the judges

ence between the value of the stock as it was represented to be, and as it is in fact.

2. RETURN OF CERTIFICATE NOT NECESSARY.-In such an action it is not necessary to aver or prove that the plaintiff had offered to return the certificate of stock given him; though such an averment would be required in a suit to recover consideration for a contract which had been rescinded.

3. A DEFENDANT can not prove at the trial a variance between the pleadings as served on him and the record.

4. EVIDENCE OF REPRESENTATIONS TO OTHER PERSONS ADMISSIBLE.-In an action for fraudulent representations, it is competent to prove representations made to other persons, at or near the same time, and of a similar character, and under similar circumstances, on the question of fraudulent intent.

5. — ORDER OF PROOF.-The order of proof is a matter in the discretion of the court, and the declarations of a conspirator may be admitted against his co-conspirator, before proof of his connection with the conspiracy has been made; provided such proof is afterwards made.

ANDREWS, J., delivered the opinion of the court: The objection was taken, on the trial, that the plaintiff could not maintain the action, for the reason that he did not return, or offer to return, to the defendants the certificate of stock in the "Union Patent Right Company," issued to him on his subscription to the capital stock, within a reasonable time after the discovery of the alleged fraud. The validity of the objection depends on the character of the action. The complaint contains all the allegations essential in an action for deceit in inducing the plaintiff, by fraudulent representations, to purchase a worthless stock. The scienter was sufficiently averred. 25 N. Y. 244. The summons was for relief, and judgment was demanded for the damages sustained by the plaintiff.

It was not necessary to aver or prove that the plaintiff had offered to return the certificate in an action for the deceit. The action was ex delicto, and not upon contract. The form of the summons, and the demand for relief, in connection with the allegations of the fraud, characterize it. If the action had been brought upon the promise which the law implies against a fraudulent vendor of real or personal property, to restore the consideration paid by the vendee upon his electing to rescind the contract, then plaintiff would have been bound to aver and prove that, upon discovery of the fraud, he had returned, or offered to return, what he had received upon it. But an action for damages for the deceit is brought consistently with an affirmance of the contract of sale, and the judge properly held, on the trial, that the averment in the complaint, of an offer to return the certificate, might be disregarded as surplusage. Hubbell v. Meigs, 50 N. Y. 487.

The answer of the defendant Barber contains a counter-claim arising out of an alleged contract between the plaintiff and Barber, made subsequent to the sale of the stock. The copy of the pleadings, furnished the court by the plaintiff, contained a reply denying the alleged counter-claim. The defendant Barber thereupon offered to prove that in fact no reply had been served, as was claimed by the plaintiff. The judge refused to hear the proof, and ruled that the case should proceed upon the pleadings furnished, leaving the defendant to his remedy by motion after the trial.

This was the former practice in respect to the nisi prius record. Wood v. Bulkley, 13 Johns. 486. And it was, we think, within the discretion of the judge to refuse to enter into this collateral issue at that stage of the proceedings. Moreover, the facts upon which the alleged counter-claim arose were shown upon the trial, and they were insufficient to establish a counter-claim in the action.

In order to understand the force of objections taken

on the trial by the defendants to the admission of evidence, it is proper to refer to the general features of the case, as disclosed by the testimony.

The "Union Patent Right Company " was a corporation organized under the general law for the formation of manufacturing and other corporations, passed February 17th, 1848. The certificate was dated February 23d, 1865, and was filed in the office of the secretary of state, January 13th, 1866. The object of the corporation, stated in the certificate, was the dealing in patent rights, and the manufacture and sale of patented articles. The capital stock was fixed at $35,000, divided into shares of $500 each. The defendants and five other persons were named as trustees for the first year. The defendants Barber and Schermerhorn were elected, respectively, president and secretary of the company, and the salary of the former was fixed at $500 a month. Both of the defendants took an active part in the organization of the company, and the office of the defendant Schermerhorn was also, for a considerable time, the office of the company. The promoters of the company, shortly before it was organized, had purchased, for the sum of $8,500, an interest in a patent "hay-loader," and had given their notes for the principal part of the purchase-money. These notes were outstanding, and the scheme was set afoot to organize a corporation on the basis of this property, and by sales of stock to realize the means for the payment of their liabilities, and to secure themselves for their advances. The interest in the patent was conveyed by the owners to the company soon after its organization, and was the only property which the company had to represent its nominal capital of $35,000. Both defendants were interested in the original purchase of the ⚫ patent, and both were to be benefited by sales of stock. In order to promote the sale of stock, various individuals of prominence in the community were solicited to subscribe for stock and to give their notes for the amount of their subscriptions, so as to give credit to the enterprise, upon the secret agreement, however, that the notes should be given up, after a short time, without payment. In several instances subscriptions were made and notes were given upon this understanding, which were subsequently surrendered in pursuance of it to the makers. These subscribers neither received the stock, nor paid their subscriptions. The plaintiff subscribed for one share of the stock, and gave his note for the full par or nominal value of the share. But he was not one of the persons with whom the agreement referred to was made. His note was payable to the defendants, or to one of them, and was transferred before maturity in part payment of notes given by the defendants and others to the patentee on the original purchase, and he was subsequently compelled to pay it. The negotiation with the plaintiff, which resulted in his subscription to the stock, was conducted by the defendant Barber in the back office of the defendant Schermerhorn, who, at the time, was in the front office and did not hear the conversation. The invention was represented by Barber to be of great value. He mentioned the names of the persons who had taken stock in the company, and these were persons who had allowed their names to be used and had given their notes to aid the enterprise, but who never took, and were never expected to take, stock in the company. Stock was sold to other parties, under similar circumstances and upon similar representations. Enough was realized from the sales to pay the advances and liabilities of the original purchasers of the patent. Some effort was made to introduce and sell the right to use the invention; but after a short time they were discontinued. No dividends were ever earned or paid by the company, and there was evidence tending to show that the invention was of no value.

It can not be doubtful that an action lies for the fraud practiced upon the plaintiff. The representation of the value of the invention was connected with a false representation of an extrinsic fact calculated to impose upon the plaintiff, to put him off his guard and to induce him to give credit to the representation of value. It had the effect it was designed to have. He relied, in taking the stock, in part upon the supposed judgment of other persons, who, as he was falsely informed, had taken stock in the company.

It is earnestly insisted, in behalf of the defendant Schermerhorn, that the evidence is insufficient to connect him with the fraud. It is quite true that he made no direct representations to the plaintiff; but the evidence warrants the conclusion that he knew, from its inception, of the scheme for securing fictitious subscriptions in aid of the sale of the stock, and that he accepted the benefits resulting from the fraud.

The judge permitted the declarations made by the defendant Barber, during his negotiation with the plaintiff for the sale of the stock, to be given in evidence as against the defendant Schermerhorn, before his connection with the company had been shown. The evidence was competent as against Barber. It became competent as against Schermerhorn when, by the facts subsequently proven, his connection with the fraud was prima facie shown. The declarations of Barber were not competent to show that Schermerhorn was a party to the fraud, nor were they admitted for that purpose. But, when evidence sufficient to submit to the jury had been given, tending to show that the defendants were jointly engaged in a common scheme to defraud the plaintiff and others, the acts and declarations of Barber in furtherance of the common design were admitted against both. The order of proof is, in general, a matter of discretion; and we are of opinion that no legal error was committed in allowing the declarations of Barber to be given in evidence as against his co-defendant, before proof of his connection with the conspiracy had been made. If the proof subsequently given had failed to connect Schermerhorn with the fraud, it would have been the duty of the court to have instructed the jury to disregard them in considering his liability. 1 Greenl. Ev., § 3; The People v. Parish, 4 Penn. 153; Sweat v. Rogers, 6 Tenn. 118; Page v. Parker, 40 N. H. 62.

The plaintiff was permitted to prove representations made by the defendants to other persons at or near the same time, and of a similar character as those made to the plaintiff, and under similar circumstances. This was competent upon the question of fraudulent intent. Cary v. Hoitaling, 1 Hill, 311; Hall v. Naylor, 18 N. Y. 588.

The court, in accordance with the request of the defendant, instructed the jury that the rule of damages was the difference between the value of the stock as it was represented to be and as it was in fact, and refused to charge that no recovery could be had, because no proof of difference in value had been given. The value of the stock depended upon the value of the invention. The company had no other property. The jury were authorized to find that the invention was without value, and from this fact that the stock was valueless also.

The defendants represented that the invention was a valuable one, and, as against the defendants, the jury could assume that, if the representations had been true, the stock would have been worth what the plaintiff paid for it. Page v. Parker, 40 N. H. 46. The court properly refused to charge as requested.

The court having charged, in substance, that the jury must be satisfied from the evidence, that the defendants were guilty of the fraud charged, before they could find a verdict against them, was then asked