
    Commonwealth versus Thomas Davis.
    Upon an indictment for a conspiracy to cheat one, the conspiracy is the gist of the offence, and the cheating is but aggravation.
    Indictment for a conspiracy, with others unknown, to compel one James W. Stearns to an unjust settlement of his accounts with said Davis, and to alter the nature and condition of an agreement between them, which was, that Stearns should find all the stock for a brewery, that Davis should afford his labor for five years from 1809, and that they should divide the net profits equally. The indictment charges that Davis, with others, affirmed to Stearns that * he, Davis, was greatly indebted in New York, — that his creditors were then in town, and were about to seize and attach the property of Stearns for Davis’s debts,— that unless Steams would give up the agreement, and pay Davis 150 dollars for the net profits already earned, and a salary of 480 dollars for the year following, all the property of Stearns would be attached for Davis’s debt; that Stearns, giving credit thereto, did pay to Davis 150 dollars for the pretended profits, and did agree to pay him 400 dollars in monthly payments; whereby Stearns, as the indictment alleges, was cheated, and his property lost and sacrificed to a large amount; whereas, in fact, Davis’s creditors had not come from New York, and were not about to seize Stearns’s property for Davis’s debts, &c.
    After a verdict found against the defendant at the last April term in this county, he moved in arrest of judgment, assigning the fol lowing reasons : —
    ]. That there is not any allegation of the profits that had been earned, nor that there were no profits ; and it doth not appear that the 150 dollars paid was an unreasonable sum to be paid for the said profits ; nor is there any allegation that the new agreement was not mutually beneficial; nor does it appear that the said Stearns was defrauded thereby.
    
      2. That the indictment is insufficient, inasmuch as the facts, which are alleged as the result of, or as forming, the conspiracy, were themselves so manifestly absurd and improbable, as not to be entitled to public confidence, or to any credit from the people, and therefore do not constitute an offence against the public.
    
      Davis (Solicitor-General) for the commonwealth
    
      Putman for the defendant.
   By the Court.

The gist of the indictment is the conspiracy. The cheating is but aggravation. Judgment is not arrested, 
      
      
         [Unless the object of the- conspiracy be apparently criminal, it seems to be necessary to show an intention to accomplish it by improper means.—1 Stark. Grim. Pl. 156.—The only clause in the allegation of the conspiracy which can be thought to wear the aspect of criminality, is the conspiracy to compel Stearns to come to an unjust settlement of his accounts; but unjust as to whom is not stated. Non constat but it was to the defendant himself. — Ed.]
     