State v. Crowley.

show that the law was originally enacted for the protection of trade and credit, and of honest and industrious people, and not (in the language of McCord v. The People) "for the protection of rogues in their dealings with each other."

The doctrine of the above cases was vigorously assailed upon principle by Mr. Justice PECKHAM, dissenting from the decision of the court in McCord v. The People, and he cited Comm. v. Harris, 22 Penn. St. (10 Harris) 253, and Comm. v. Morrill, 8 Cush. 571. It must be conceded that these cases, particularly the former, sustain his views.

Rex v. Stratton, cited in a note to Buck v. Buck, 1 Campb. 549, illustrates the same principle, and is directly in point in this case. The indictment was for a conspiracy to deprive the prosecutor of the office of secretary of an illegal company. Lord ELLENBOROUGH said : "This society was certainly illegal. Therefore, to deprive

an individual of an office in it cannot be treated as an injury. When the prosecutor was secretary of the society, instead of having an interest which the law would protect, he was guilty of a crime."

In Jacob's Law Dictionary, the essential elements of a criminal conspiracy are thus stated: "CONFEDERACY (confederatio). is when two or more combine together to do any damage or injury to another, or to do any unlawful act. And false Confederacy between divers persons shall be punished, though nothing be put in execution. But this Confederacy, punishable by law before it is executed, ought to have these incidents: First, it must be declared by some matter of prosecution, as by making of bonds, or promises, the one to the other; secondly, it should be malicious, as for unjust revenge; thirdly, it ought to be false, against an innocent; and lastly, it is to be out of court, voluntarily. Terms de Ley, 158." In the present case, the confederacy or conspiracy charged in the information is punishable by law before it is executed, and hence is within the above rule. As already observed, the proofs show that it is not "false, against an innocent."

After much investigation and deliberation, we have reached the conclusion that the rule of the New York cases is supported by the better reasons, as well as by the weight of authority, and that it is our duty to adopt it. We do so with hesitation, because able judges and courts have held a different rule; and with reluctance, because the acts of the defendants (or some of them), as disclosed

Hart v. Stickney.

by the evidenee, were outrageous and indefensible, and the perpetrators richly merit punishment. But it is far better that they should escape punishment under this information, than that sound legal rules should be disregarded to meet the supposed exigencies of a particular case.

It may further be observed (although not essential to the determination of the question under consideration), that had Burke exercised common prudence and caution, he could not have been misled by the false pretenses by which he was induced to pay the money to Carnahan. He had in his possession the box which the latter charged contained counterfeit money, and, by an examination of its contents, could readily have ascertained whether the charge was true. The cases cited by counsel for the defendants abundantly show that such a case is not within the statute.

It follows from the foregoing views that the second question submitted by the learned circuit judge for our determination must be answered in the negative.

The case must be certified to the Circuit Court with these answers to the questions reported, and with the direction that that court proceed in accordance with our decision.

It is so ordered.

HART V. STICKNEY.

(41 Wis. 630.)

Promissory note-dishonored by non-payment of interest.

A promissory note, bearing interest payable annually, was indorsed before maturity, but after an installment of interest was due and unpaid. Held, that the note was dishonered and that the indorsee took it subject to all equities between the original parties.

A

CTION by the plaintiff as indorsee before maturity of a promissory note executed by the defendants May 1, 1873, payable two years from date, with interest payable annually. The defendants denied that plaintiff was an indorsee in good faith and for value before maturity, and set up transactions between themselves and the payee of the note. The defendants had a verdict and judgment, and plaintiff appealed.

Rogers & Hover, for appellant.

Hart v. Stickney

Jenkins, Elliott & Winkler, for respondents, cited, to the point that the note was dishonored by the non-payment of interest, Butler v. Wagner, 35 Wis. 54; 2 Parsons on Bills and Notes, 394; Vinton v. King, 4 Allen, 562; 1 Parsons on Bills and Notes, 374; Newell v. Gregg, 51 Barb. 263; First National Bank v. Scott County Commissioners, 14 Minn. 77.

COLE, J. The main questions in this case arise upon exceptions taken to the refusal of the Circuit Court to give instructions asked on the part of the plaintiff, and on exceptions to certain portions of the charge. The first question to be considered is, Did the court state the law correctly as to what would amount to a dishonor of the note, so as to subject it to equities existing between the original parties? Upon that point the Circuit Court in substance held, that where a note is for the payment of money at a specified time, with interest payable annually, and the note is sold by the payee to a third person when a year's interest is past due and unpaid, the law will construe that the note is dishonored - the default in the payment of interest will be sufficient to put the purchaser on his guard to see if there is any thing wrong about the note. The evidence made this charge applicable, if sound as a proposition of law; for it is an admitted fact that a year's interest had been due on the note for nearly eleven months, when the plaintiff purchased it of the payee. The case most directly in point in support of the view of the Circuit Court, is Newell v. Gregg, 51 Barb. 263, to which we were referred on the argument. It is not necessary to state the facts of that case. It suffices to say that the court held that when a note was given for the payment of $200 two years from date, with interest payable annually, the payment of the interest when due was as much a part of the agreement as the promise to pay the principal; that it was a portion of the debt which was evidenced by one written promise to pay; that when the instrument furnishes evidence that the written promise to pay has been broken, a party taking it has notice that the maker may have a defense. The principle of this decision commends itself to the good sense of every one, and we think it is sound. For the fact that interest on the note is due and unpaid is of equally pointed character to show dishonor as the non-payment of an installment. In Vinton v. King, 4 Allen, 562, the court decided that a note payable by installments was overdue when the first inVOL. XXII.-92

Hart v Stickney

stallment was overdue and unpaid, and that one who took the note afterward, received it subject to all equities between the original parties. The court say: "The circumstance that a note is overdue makes it incumbent on the party receiving it to satisfy himself that it is a good one; and if he omit so to do, he must stand in the situation of him who was holder at the time it was due." See, also, Parsons on Notes and Bills, 374. We therefore think, upon this branch of the case, that the court was right in charging, upon the admitted facts, that the note was deemed to be dishonored when taken by the plaintiff, and that it was open to the defense set up in the answer. And this view disposes of the exception taken to the refusal of the court to give the second special instruction of the plaintiff, which was to the effect that if he had no knowledge of any defense to the note at the time it was purchased, a recovery could be had upon it. The note in question bore date May 1, 1873, was payable to the order of Thomas W. Hart two years from date, with seven per cent interest, the interest payable annually. The plaintiff purchased the note March 22, 1875, and the first year's interest was then unpaid. On these admitted facts, the plaintiff could not be said to be an innocent purchaser.

[The court then examined the defense interposed, based upon the transactions between the original parties to the note, and held that the instructions to the jury relating thereto were erroneous, and that for this reason the judgment must be reversed.]

Judgment reversed.

CASES

IN THE

SUPREME COURT

OF

PENNSYLVANIA.

SMITH V. PHILADELPHIA.

(81 Penn. St. 88.)

Municipal corporation-liability of, for failure of water-works-damages. A municipal corporation laid water-pipes through the city which any one might connect with his house, and use on payment of a certain water-rent. The pipe with which plaintiff's house was connected was so carelessly laid that it froze and burst, thereby depriving plaintiff's tenants of water, on which ground they abandoned the premises. Held, that plaintiff could recover of the city the water-rent paid, while deprived of the use of the water, but not for damages in being deprived of the water, or for loss of tenants.

A

CTION on the case, in which the plaintiff alleged and the evidence tended to prove, that he was the owner of certain houses in Silver street, Philadelphia; that he paid the defendant for laying the water-main in that street in front of the houses, and also for permits to introduce the water; that the defendant had negligently laid the main too near the surface of the ground, so that it was frozen during two winters, and there was no water communicated to the houses; the attachments and water-pipes bursted, whereby the plaintiff lost his tenants and the rents of the houses and the benefit of his payment for the main, permits, etc., and expended large sums of money in repairs, etc.