381.) These cases, and many others that might be cited, show that if the defendants in such a case as this acted bona fide, upon legal advice, their defence is perfect. * * * * * Judgment of the Circuit Court reversed.1 BRADLEY, J., dissented on the ground that being a creditor is a condition precedent to the right to institute proceedings in bankruptcy. SECTION 4. CONSPIRACY. PLACE V. MINSTER. (65 N. Y. 89.-1875.) Amasa J. Parker and Geo. M. Curtis for the appellant. Samuel Hand for the respondent. DWIGHT, C. The defendants urge that the judge at the trial should have nonsuited the plaintiff on the ground that there was no evidence to go to the jury to substantiate the charge made in the complaint. They urge this on two grounds. One is, that if the testimony of the plaintiff's witnesses were wholly credible, there is a clear departure in the testimony from the complaint, so that it is "improved in its entire scope and meaning." The other is, that the plaintiff's case rests on the testimony of an accomplice in the fraud, James Sherlock. And that he has so contradicted himself and was so influenced by fear of the hope of reward that his statements should not have been taken into account, but that the court should have rejected them as a matter of law. The first of these objections 1 Judgment in a former action, unless obtained by fraud, is evidence of probable cause, although reversed on appeal. (Crescent C. L. S. Co. v. Butchers' Union, 120 U. S. 141; Adams v. Bicknell, 25 N. E. 804 (Ind. 1890).) What is such a termination of former action as will maintain this action? (Cardival v. Smith, 109 Mass. 158.) The action is maintainable against a corporation. (Copley v. G. & B. S. M. Co., 2 Woods, 494; 28 Myers, Fed. Dec. p. 337; Reed v. Home S. Bk., 130 Mass. 443.) to the plaintiff's recovery requires an examination, to some extent, of the testimony. The testimony, assuming for the moment that full credit should be given to it, discloses that the defendants L. Minster and Kohn did not specifically direct the goods to be purchased in L. Minster's name. The plaintiff's own testimony is, that Sherlock told him that he had got orders from L. Minster (in whose name L. Minster and Kohn were doing business). He packed the goods by Sherlock's direction, and shipped them to L. Minster. The first order was sent 20th June, 1865, to the value of $2814, together with samples worth seventy dollars. On July 7th, Sherlock told the plaintiff that he was going to New York and wished more samples. He then said that he had another order for another lot of gloves, and they were directed and shipped as before to the amount of $2279, together with samples worth seventy-eight dollars. Other shipments were made on similar orders, down to the 4th or 5th of August. On the last of these days, he being in New York, received from Sherlock a check, signed L. Minster, for $1200. Shortly after August 11, 1865, the plaintiff saw L. Minster at his store, and asked him if he had paid Sherlock for the goods they had had of himself. Minster denied that they had bought any goods of the plaintiff, and said that they did not owe Sherlock anything. On cross-examination the plaintiff testified that while he was in New York looking after the payment of his bill, he saw Minster in his store, but had no conversation with him about the goods, although he had then sent more than half of them. As far as is shown, not a word passed between him and the defendants as to their connection with the transaction, though the opportunities for such inquiry were at hand, and the sales were large enough to have attracted a seller's attention to their prompt adjustment, and payment by Sherlock was but partial and dilatory. It is true that the plaintiff testifies that bills were originally made out in L. Minster's name. These were, however, subsequently surrendered to Sherlock, on his representation that Minster would not pay unless bills were made out in Sherlock's name. This was done ac cordingly, although it is charged by the plaintiff that this was a part of the fraudulent conspiracy to obtain his goods without payment. Without further detail of the testimony in this branch of the case, I think it clear that there was no specific understanding that the goods should be sold to L. Minster, as charged in the complaint. The most that can be said is, that there was an ambiguity of expression in the language of Sherlock, and that the plaintiff may have supposed that there was an order on the part of Minster for the goods, though there was no direct statement that the goods were sold to him. All that was proved with any distinctness was that there was a conspiracy between Sherlock and L. Minster and Kohn, that the goods should be sold to Sherlock, and that he should go through the form of selling them to Minster & Kohn; that Sherlock should then abscond from the country and conceal himself in such a way that no testimony from him would be available, and that Minster & Kohn would then be able to represent that they bought the goods from Sherlock, and were in no respect liable to the plaintiff. Such a fraud would differ from the one charged in the complaint, in the fact that in that the conspiracy was alleged to be to sell to L. Minster, who was no member of the firm of Minster & Kohn, and who might deny the sale, while, as proved, Sherlock was to be the purchaser, and a subordinate contract was to be entered into as between him and the defendants. That such a combination as this proved would amount to a conspiracy in law is deducible from the authorities. The essence of a conspiracy, so far as it justifies a civil action for damages, is a concert or combination to defraud or to cause other injury to person or property, which actually results in damage to the person injured or defrauded. All the necessary elements are present, according to the case made by the plaintiff. (Page v. Parker, 43 N. H. 363; Wiggins v. Leonard, 9 Iowa, 195; Whitman v. Spencer, 2 R. I. 124; Walsham v. Stainton, 33 Law J. Ch. 68.) The act charged to result in a conspiracy may, in one aspect of the case, be innocent; in another it may be fraudulent. It will be necessary to consider the intent with which the act was done, so that the question will be peculiarly for the consideration of the jury. In Whitman v. Spencer, supra, a New York merchant purchased goods from a dealer in Providence, Rhode Island, to the amount of $6000, upon credit, and assigned them, without consideration, by a clear bill of sale, and the assignee removed the goods to Providence, where they would be free from attachment, and sold them there, saying that he intended to pay the creditors of the New York merchant, whose claims he had guaranteed, at the same time refusing to give a list of the creditors, such list being also refused by the vendor. It was held under this state of facts that the question whether there was a conspiracy or not depended solely on the intent. If the goods were taken to Providence with the bona fide intent to sell them for the benefit of the creditors, there was no conspiracy. On the other hand, if there was an intent to secrete them, a conspiracy existed. The whole matter accordingly, it was considered, must go to the jury. In the case at bar, if Sherlock and the defendants contrived a plan whereby Sherlock was to get the title to the goods and then go through the form of sale to the defendants, and he was to abscond, so that the true history of the transaction could not be traced, and the defendants could get the goods without paying for them, the conspiracy would clearly be established. This would be so, though Sherlock was the only active participator in the fraudulent statements, and the defendants were wholly passive and silent as between themselves and the plaintiff. (Page v. Parker, supra.) It would seem to be a fraudulent conspiracy, even though Sherlock made no affirmative false statement to the plaintiff, but simply bought the goods with a preconceived design, as between himself and the defendants, not to pay for them, and to put out of the way all accessible evidence of their wrongful act. Such a fraudulent concealment of the true nature of a dealing, which on its face appears to be an ordinary sale, would be a fraud of a deep dye. Designing men cannot be allowed to put forth a supple tool to do their bidding, knowingly take the profits of a concocted wrong, remain silent, and go unwhipped of justice. The action for conspiracy is devised for just such cases. It reaches the silent partners in the transaction, and السل causes them to disgorge the profits of their hidden guilt. It is, thus, a highly remedial action, and in no respects to be discouraged, when resorted to in cases which fairly admit of its application. If the testimony in this cause most favorable to the plaintiff is true, the present is emphatically one of those cases to which the law should be applied with an unsparing hand, as the more active agent was plainly weak and vacillating and only upheld by the strong will and fortifying purpose of men of bolder design and firmer nerve. The correctness of these views is distinctly sustained by the judgment in Moore v. Tracy, 7 Wendell, 229. In that case Tracy brought an action on the case for a conspiracy against W. and A. Moore, charging them with enteirng into a fraudu lent combination with one J. Van Valkenburgh to the following effect: Van Valkenburgh was to pay and obtain of the plaintiff various goods under the pretence of a fair and bona fide purchase, but not intending to pay for the same, and the goods so obtained were to be delivered into the possession of the defendants; Van Valkenburgh should then declare himself insolvent, and obtain a discharge under the insolvent act, and thereby defeat the collection of the plaintiff's demand. It was further charged that in pursuance of such conspiracy, Van Valkenburgh, under the pretence of a fair and honest purchase, obtained from the plaintiff certain articles of property, which were delivered to the defendants, or one of them, and by them disposed of to their own use. The facts alleged in the complaint having been proved at the trial, mainly by the testimony of the co-conspirator, Van Valkenburgh, the court, on appeal, held that the complaint disclosed a good cause of action, and affirmed a judgment rendered against the Moores. Pasley v. Freeman, 3 Term R. 56, was among other cases relied on. It was said: "In the case at bar the defendants reaped all the fruits of the fraud, but had no personal communication with the plaintiff. The declaration does not charge them with doing any act to induce the plaintiff to sell his goods to Van Valkenburgh, but he must be considered their agent, and his false and fraudulent representations (that he intended to and would pay for the goods, when it had previously been determined between him and the defendants that |