
    NEW YORK GUARANTY AND INDEMNITY CO. v. GLEASON.
    
      N. Y. Court of Appeals ;
    
    
      November, 1879.
    Action for Money Had and Received.—Evidence.—Fraud.—Forgery. —Principad and Agent. —Conspiracy.—Testimony ■ op Accompdice.—Res Gest/E.—Triad.—Witness. —Grand Jury.
    To maintain an action on contract for money had and received, plaintiff must establish that defendant has received his money, or money to which he is entitled.
    It is not sufficient to show that he has, by fraud or wrong, caused the plaintiff to pay money to others, or to sustain loss or damage.
    
    But plaintiff need not establish that each of several joint wrong-doers personally received a share of the money obtained by means of forged bonds.
    If the money was received by a common agent, those for whose benefit it was thus received are jointly liable for the whole sum, although the agent fails to pay over, and absconds with the whole of the money.
    It is competent for the plaintiff to prove complicity on the part of all the defendants, in a forgery, for the purpose of showing their interest in the money obtained by means of forged bonds.
    Where there was evidence connecting a person with a forgery, but none of any agreement or understanding between the forgers • that he was to share in the proceeds of the forgery, or that he was personally to have any benefit therefrom, or that the agent of the forgers in obtaining the money was employed or acted for him, or that he actually received any part of the money,—Held, that he could not, in an action for money had and received, be made liable for the money so obtained.
    Even if it had been shown that with the money obtained by the agent, other persons purchased bonds and delivered them to him for safekeeping, as his own, he could not be held liable.
    
      To hold one liable, in such a case, it is necessary to show that he was one of the principals for whom the agent acted.
    The commission of a crime may be proved by the uncorroborated evidence of an accomplice.
    The jury are to determine how much weight shall be given to the evidence of an accomplice, or of the wife of an accomplice, who is called to testify to corroboratory facts.
    When two accomplices are called as witnesses, whether more weight should be given to the evidence of two than of one, and whether they corroborate each other, and to what extent, are matters for the jury-
    In a civil action, the plaintiff is not bound to establish any fact so clearly that it shall be free from doubt, but all that is required of him is that he shall satisfy the jury by a preponderance of evidence.
    
    Where the main issue in an action for money had and received, was whether a certain person who obtained money on forged bonds, was the agent of the defendants,—Held, that it was competent for the plaintiff to prove the relations which existed between the alleged agent and the defendants; that they had entered into a conspiracy to forge the bonds and put them upon the market; that they were jointly concerned in the forgery; and any other facts tending to show a scheme to get money from the plaintiff by means of the forged bonds.
    After establishing the conspiracy, the plaintiff can prove the acts, admissions and declarations of any one of the conspirators, done and made during the pendency of the criminal enterprise, in pursuance and furtherance thereof, and in reference thereto.
      Such evidence is received as a part of the res gestee, and therefore the act of all.
    Where, upon the whole evidence, the jury could have found for the defendants, and their verdict could not have been disturbed as against the evidence or weight thereof, it is impossible to say that improper evidence, damaging in its character, may be disregarded as harmless.
    
    Declarations of an accomplice, to a past transaction, having nothing to do with any res gestee, accompanying no act in furtherance of a criminal enterprise, and having nothing to do with the formation of a conspiracy, or with carrying it forward, should not be allowed for the purpose of showing a conspiracy.
    Evidence should not be admitted in an action for money had and received by means of forged bonds, to show that the defendant has been engaged in other crimes, or that he had harbored or associated with other criminals.
    Evidence given by a defendant, in a trial in another action, may be read so far as pertinent to the issue, and will be competent evidence against him of the facts stated, but for no other purpose.
    An adverse witness may be asked, on cross-examination, whether he did not testify differently before a grand jury, from the evidence given by him upon the pending trial.
    Even a grand juror may be called for that purpose.
    Whether a trial be long or short, or the exceptions few or many, every party has the right to demand that he shall not be prejudiced by improper evidence.
    Appeal by defendants from a judgment of the general term of the superior court of the city of New York, affirming a judgment in favor of plaintiffs, entered upon a verdict.
    This action was brought by the New York Indemnity Company against Andrew L. Roberts, Lydia J. Roberts, Valentine Gleason, Amelia Gleason, Horace S. Corp and others, to recover $75,000 for moneys had and received by defendants.
    The plaintiff’s complaint charged that on June 5, July 7, and August 9, 1873, the defendants were possessed of certain documents, purporting to be one hundred and four first mortgage bonds of the Buffalo, New York, and Erie Railroad Co., of the value of $1,000 each, and that, on the days mentioned, the defendants obtained from the plaintiff $75,000, and gave the bonds as security ; that the bonds were forged; were worthless ; and that the defendants received, to and for the use of the plaintiff, the said sum of $75,000, and the plaintiff claimed judgment for that amount. The answers amounted to general denials.
    
      The facts, as disclosed on the trial, are briefly as follows : In 1872 and 1873, Valentine Gleason and Andrew L. Roberts forged railroad bonds to a large amount, and agreed with Charles Rolston, who was also known as Walter Stewart and Walter Sheridan, that he should put as many of them as he could on the market, and that for this service he should have one-third of the proceeds, and that he should account to Gleason for one-third, and to Roberts for the remaining third. In the summer of 1873, Rolston borrowed from the plaintiff $60,000, against a pledge of eighty-four of the forged bonds, which purported to be of the value of $1,000 each. About the same time, one Charles J. Williamson borrowed from the plaintiff $15,000, upon a pledge of twenty bonds of the same class. Thereupon Rolston and Williamson disappeared.
    Lydia J. Roberts, who was at that time the widow of a deceased brother of Andrew, Amelia A. Gleason, the wife of Valentine, and Horace S. Corp, a brother of Mrs. Gleason, and one F. S. Pettis, aided in the preparation of the bonds.
    After the forgery was discovered, Rolston’s bankbook was found in Gleason’s box, in the vaults of a safe deposit company, and in the box of Corp were found quite a large amount of securities, marked in the name of Mrs. Gleason.
    Andrew L. Roberts, and Lydia J., who had meantime become his wife, appeared to have their money interests and property in common.
    Gleason, when inquiry was made of him about Rolston, denied all acquaintance with him.
    The plaintiff sued all the parties supposed to have been connected with the fraud. Williamson and Rolston could not. be found or served with process. Andrew L. Roberts, Lydia J. Roberts, Valentine Grleason, Amelia A. Grleason, and Horace S. Corp, answered the complaint.
    On the trial, the plaintiff used the testimony of F. S. Pettis, taken under commission while he was imprisoned in Massachusetts under a sentence for forgery. This testimony was the only direct evidence that showed Rolston passed the bonds upon the plaintiff, as an agent or partner of the defendants, and in pursuance of a specific agreement with them.
    Neither Andrew L. Roberts, Valentine Grleason, nor Horace S. Corp testified for the defense ; nor did it appear that any effort was made to procure their attendance as witnesses.
    The jury gave a verdict for the amount of the plaintiff’s loans, against all the defendants who answered in the cause.
    
      The superior court, at general term, affirmed the judgment entered on the verdict, and thereupon the defendants appealed to the court of appeals.
    
      Ira Shafer, for defendants, appellants.
    The law does not permit the making one charge and the proof of another (Code of Pro. § 171; Beard v. Yates, 2 Hun, 466; Walter v. Bennett, 16 N. Y. 250; Arnold v. Angell, 62 Id. 508; Hollister v. Englehart, 11 Hun, 446 ; Lienan v. Lincoln, 2 Duer, 670, 672). Fraud and crime, when made the foundation of civil liability, consist in intention, and that intention is a fact which must be averred, for it is the gist of the plea, and is traversable (5 Cranch, 351 ; Fisher v. Robinson, 21 Barb. 82; Bailey v. Ryder, 6 Seld. 363; Robinson v. Stewart, Id. 189; Chautauqua Co. Bank v. White, 2 Id. 236, 257; Brockway v. Burnap, 12 Barb. 347, 348; Thomas v. Austin, 4 Id. 265; Barber 
      v. Morgan, 51 Id. 116). An amendment of the complaint, on the trial, so as to confine the pleadings to the proof, would not have been permissible, because it would have changed the cause of action (Whitomb v. Hungerford, 42 Barb. 178; Bush v. Tilley 49 Id. 599 ; Ford v. Ford, 53 Id. 525 ; Phillips v. Melville, 10 Hun, 211). And it cannot be amended for the same reason, on appeal (Smith v. Mayor, 37 N. Y. 518). Whatever is done in pursuance of the conspiracy by any of the parties concerned, may be averred to be the act of all; and after averring the fraudulent combination, the acts of each defendant may be stated to have been done individually (Tappan v. Powers, 2 Hall, 277, 296; Jones v. Baker, 7 Cow. 445, 449 ; 1 Saund. 230, note 4; Forsyth v. Edminston, 11 How. Pr. 408; Mussina v. Clark, 17 Abb. Pr. 188; McHenry v. Hazard, 45 Barb. 657; Setzar v. Wilson, 4 Ired. Law 501, 507 ; People v. Brady, 56 N. Y. 182, 188; Root v. Lowndes, 6 Hill, 518 ; Campbell v. Butts, 3 N. Y. 173 -176; Davis v. Talcot, 2 Kern. 184). The cases which apparently conflict with this.rule (13 Johns. 184; 3 Id. 432 ; 3 Cai. 152; 16 Wend. 583) relate to judgments of justices’ courts, where pleadings are but little regarded. Plaintiff, on a complaint in assumpsit, should not have been permitted to prove that defendants had forged other bonds. In action for fraud, or to rescind a sale brought about by fraud, contemporaneous frauds, and fratidulent representations may be shown, for the purpose of showing the fraudulent intent (Cary v. Hotailing, 1 Hill, 311, 316 ; 3 Greenl. Ev. §§ 111, 111a; Hitchock’s case, 6 City Hall Rec. 43). The deposition of Pettis could not be read against Mrs. Gleason, nor against Corp, neither being a party when it was taken, and neither having the opportunity to file cross-interrogatories (1 Greenl. Ev. § 554). And the error could not be cured by telling the jury nearly a month after it was given, to disregard it (Erben v. Lorillard, 19 N. Y. 299). The attempt oí the supreme court in Mandeville v. Guernsey (51 Barb. 99), to limit the operation of the rule, has not been successful. The declarations of witnesses stating what had been done by the alleged conspirators, or wrong-doers, should not have been admitted inevidence (3 Greenl. Ev. § 94 ; Luby v. Hudson R. R. Co., 17 N. Y. 131; Card v. New York & Harlem R. R. Co., 50 Barb. 39). It would have been admissible if uttered in the heat of the occurrence (Whittaker v. Eighth Avenue R. R. Co., 5 Robt. 650); but not otherwise (1 Phil. Ev. 202 ; Anderson v. Rome, W. & O. R. R. Co., 54 N. Y. 334). Where hearsay evidence has been admitted bearing in the least degree upon the result, the judgment must be reversed (Worrall v. Parmlee, 1 N. Y. 519). It is settled law that for the purpose of impeachment, the record of conviction must be producéd, and the conviction cannot be shown on the cross-examination of the witness (1 Greenl. Ev. § 457 ; Newcomb v. Griswold, 2 N. Y. 298 ; Tifft v. Moor, 59 Barb. 619; Peck v. Yorks, 47 Id. 131; Rathbun v. Ross, 46 Id. 127). The cross-examination of Boberts in another case should not have been allowed (People v. White, 14 Wend. 111; 1 Phil. Ev. 442; Buller Nisi Prius Cas. 296; Peake Ex. 7, 8; Chitty C. L. 574, 745; Phil. Ev. 145). A witness must state facts, and not conclusions, except upon questions of science and skill (Morehouse v. Mathews, 2 N. Y. 514, 515 ; 1 Phil. Ev. 290). Spence’s belief as to Williamson and Slatterly not evidence (Butler v. Benson, 1 Barb. 526, 537). The wife of the accomplice cannot be used to corroborate her husband (Rex v. Neale, 7 C. & P. 168 ; 1 Phil. Ev. 114, Edwards’ ed). The jury, the judges of the credibility of witnesses (Roth v. Wells, 29 N. Y. 471). Such serious errors were committed on the trial that they cannot be disregarded (17 N. Y. 131; Anderson v. Rome, Watertown, &c. R. R. Co., 54 N. Y. 339). To make the other defendants liable in this action, Bolston and Williamson must have been their agents in fact (Byxbie v. Wood, 24 N. Y. 608; Allen v. Brown, 44 Id. 228; Commercial Bank of Rochester v. City of Rochester, 41 Barb. 341 ; Sloman v. Schmidt, 8 Abb. Pr. 5). The principle of Scott v. Shepherd, 3 Wils. 403, Guille v. Swan, 19 Johns. 381, and Vandenburgh v. Truax, 4 Den. 464, is not applicable. If they were all forgeries, &c., it does not follow from the proof here that they would be liable (Ryan v. New York Central R. R. Co., 35 N. Y. 210). In all joint wrongs there must be proof óf participation in the same wrongful act (2 Hill, on Torts, 457). The burden rested upon the plaintiff to establish to the satisfaction of the jury, that Mrs. Gleason was connected with Bolston and Williamson in these transactions, and if they were not so satisfied, she could not be held (6 N. Y. 233; 7 Id. 266 ; 11 Id. 416). Presumption of formal exception having been taken and omitted by mistake (Clarke v. Dutcher, 9 Cow. 674, 679). The court cannot, where the damages are entire, reverse in part and affirm in part (Code of Pro. § 330; Code of Civ. Pro. § 1317; Story v. New York & Harlem R. R. Co., 2 Seld. 85).
    
      John H. V. Arnold and Thomas H. Hubbard, for plaintiff, respondent.
    Each of the defendants was liable for the amount obtained upon the forged securities (3 Greenl. Ev. §§ 89 to 97). Every act and declaration of each one of the parties conspiring is admissible (1 Greenl. Ev. § 3); and the order of proof was entirely discretionary with the judge (National Trust Co. v. Roberts, 42 Super. Ct. [J. & S.] 100; Miller v. Barker, 66 N. Y. 558; Kelly v. People, 55 Id. 565). The testimony of Pettis was properly admitted (3 R. S. 5 ed. p. 988, § 33; Id. p. 985, §§ 9, 10 ; Gen. Stats. of Mass. of 1860, c. 131, § 13; Id. 1867 to 1872, c. 393, § 1; Commonwealth v. Hall, 4 Allen, 307; Cole v. Cole, 50 How. Pr. 60 ; 1 Greenl. 423, § 376 ; Code of Civ. Pro. § 832; Sims v. Sims, 12 Hun, 233). Motion to suppress the deposition should have been made before trial (Code of Civ. Pro. § 910 [Bliss ed.] p. 651, note A and § 911 ; Union Bank of Sandusky v. Torry, 5 Duer, 269 ; Zellinger v. Caffe, Id. 87; Sheldon v. Wood, 2 Bosw. 267 ; affirmed, 24 N. Y. 607). Evidence that defendant had practiced similar tricks on others proper to show the quo animo (Hitchcock’s Case, 6 City Hall Rec. 43). Overt acts not alleged in the indictment may be given on the part of the prosecution (2 R. S. 735, § 17); contemporaneous frauds may be proved (Scott v. Williams, 23 How. Pr. 393 ; Miller v. Barber, 66 N. Y. 568; Crary v. Houghtaling, 1 Hill, 311 ; Hall v. Naylor, 18 N. Y. 588 ; People v. Hopson, 1 Den. 577). What takes place before the grand jury cannot be disclosed (People v. Hurlbut, 4 Den. 133; 3 R. S. tit. 4, pt. 4, art. 1, § 31; 1 Colby Crim. Law, 242; 1 Whart. Crim. Law, § 508 ; 4 Blacks. Com. 126, note ; Imlay v. Harris, 2 Halstead N. J. L. 347; Crocker v. State, Meigs [Tenn.] 127; State v. Tassett, 16 Conn. 457). Defendants could have moved for a separate trial (Code, § 258). Pettis’ evidence was not necessarily to be stricken out; the party should have asked for instructions to the jury to disregard it (Marks v. King, 64 N. Y. 628; Miller v. Barber, 66 Id. 558 ; 1 Greenl. Ev. § 111; People v. Parish, 4 Den. 153). An assent to a wrong committed for the benefit of several, renders them equally liable with him who actually committed it (1 Chitty Pl. 31; 3 Hill, 148 ; 29 N. Y. 591; 44 Barb. 347). It is no ground of defense that the defendant is an infant, a married woman, an idiot¡ or a lunatic (1 Cow. Tr. 5 ed. 408, 409 ; Conklin v. Thompson, 29 Barb. 218 ; Fish v. Ferris, 5 Duer, 49 ; Bullock v. Babcock, 3 Wend. 391 ; Warmouth v. Cramer, Id. 396; Wallace v. Morss, 5 Hill, 391; Campbell v. Stokes, 
      2 Wend. 137; Campbell v. Perkins, 4 Seld. 440; People v. Wait, 30 N. Y. 78). Each is liable for all wrongs they commit (Low v. Mumford, 14 Johns. 426; Creed v. Hartman, 29 N. Y. 591; Kasson v. People, 44 Barb. 347). All persons, natural as well as corporations, may be parties in an action for wrongs (McCoon v. Smith, 3 Hill, 148 ; Mayor, &c. of N. Y. v. Bailey, 2 Den. 433 ; New York & New Haven R. R. Co. v. Schuyler, 34 N. Y. 30). A married woman, an infant, an idiot, a lunatic may be either plaintiff or defendant (1 Cow. Tr. 5 ed. 405 ; 1 Chilly Pl. 86 ; Hartfield v. Roper, 21 N. Y. 615 ; 2 R. S. 445-451; 3 Id. 5 ed. 745). And she is responsible for civil wrongs committed by her on a third person, when she acts freely and not under coercion (Matthew v. Fristie, 2 E. D. Smith, 90): for slander (Yeates v. Reed, 4 Bladf. 462 : for libels (Austin v. Wilson, 4 Cush. 273); for conversion of chattels (Estill v. Frost, 2 Den. 237; Vanneman v. Powers, 56 N. Y. 43; Rowe v. Smith, 55 Barb. 417): for a battery (Roodcap v. Sipe, 6 Grat. 213 ; Voorhees’ Code, 100 ; Malone v. Stilwell, 15 Abb. Pr. 421 ; Flanagan v. Tinin, 53 Barb. 587; 1 Bishop on Married Women, 905; 2 Id. 784, 905; Peake v. Lemon, 1 Lans. 295 ; Kowing v. Manly, 49 N. Y. 192). It was proper for the jury to look at the check (Morey v. Safe Deposit Co., 34 N. Y. Super. Ct. [J. & S.] 154; Frank v. Chemical Nat. Bank, 37 Id. 30; Ellis v. People, 21 How. Pr. 356). The jury may find a verdict upon the unsupported evidence of an accomplice (Ynguanzo v. Salmon, 3 Daly, 153 ; Dunn v. People, 29 N. Y. 523). Where the jury have been properly instructed, the judge may refuse to entertain any further application to charge them (Moody v. Osgood, 54 N. Y. 488). The case should not be sent back for an error in the rejection or reception of evidence which manifestly would not have changed the result (Buyers v. Patterson, Supreme Court of Penn., May, 1876, 3 N. Y. Weekly Dig. 46, and 2 Weekly Notes of Cases, 649). It was not necessary for the judge to charge that certain of the defendants must be established to be confederates of and joint wrong-doers with Rolston (Morehouse v. Yeager, 71 N. Y. 594). Errors in admitting or rejecting other testimony, so long as it did not exclude anything offered to contradict Pettis, could not alter the result as to the liability of Roberts and Gleason (Worrall v. Parmelee, 1 N. Y. 519, 521). That Williamson put upon the plaintiff bonds of the same class as Rolston carries strong moral conviction of defendant’s complicity with both persons, but does not amount to legal proof (Murray v. Jackson, 71 N. Y. 599). The court has the power to affirm the judgment against some of the defendants, and reverse it as to others (Code of Pro. § 12; Code of Civ. Pro. §§ 13-17; Morgan v. Smith, 70 N. Y. 537, 543). It can also reduce the amount of the judgment, and affirm it for the reduced amount (Chauteau v. Suydam, 21 N. Y. 179, 188 ; Brownell v. Winnie, 29 Id. 400, 411).
    
      
       Or its. equivalent. Price v. Oriental Bank, 38 L. J. N. S. 41; S. C., 26 Weekly R. 543; Ainslie v. Wilson, 7 Cow. 662; Garnsey v. Allen, 27 Me. 366. Compare Stroud v. Pierce, 6 Allen, 413; Field v. Symes, 2 Robt. 35.
    
    
      
       See Butler v. Livermore, 52 Barb. 570.
    
    
      
       See note at the end of the case.
    
    
      
       For other illustrations of this rule and its limits, see the following cases and others which they cite.
      Where there is abundant evidence to justify the conclusion that the parties were all acting with a common purpose and a common design, although there may have been no previous combination or confederacy to commit this particular offense, the acts and declarations of each, from the commencement to the consummation of'the offense, are evidence against the others, especially if the declarations are not given in evidence to prove the guilt of the parties on trial, and as the declarations of one conspirator against another, but as a part of the res gesta. Kelley v. People, 55 N. Y. 565; aff’g Armsby v. People, 2 N. Y. Sup'm. Ct. (T. & C.) 157.
      Where declarations of a conspirator are merely a narrative of a past occurrence they cannot be received as evidence of such occurrence against a co-conspirator. They must be concomitant with the principal act and connected with it, so as to constitute a part of the res gestes. Patton v. State of Ohio, 6 Ohio, 467.
      Evidence of a narration by one conspirator of what had been done in accomplishing the purpose of the conspiracy, is not competent against another conspirator. Declarations, to be thus admissible, must have been made in furtherance of the common object, or as part of the res gestes. People v. Davis, 56 N. Y. 95.
      In an action on the case for conspiracy, proof of a division of the profits of the fraudulent transaction is sufficient evidence of combination in the first instance, to render admissible the declarations of one conspirator against the rest. Kimmel v. Geeting, 2 Grant (Pa.) Cas. 125.
      The acts or declarations of a supposed agent or joint conspirator of a party, cannot be received in evidence against such party, without evidence to prove the relation existing between them. Lee v. Bennett, How. App. Cas. 187; People v. Parish, 4 Den. 153.
      But it is in the discretion of the court to receive the declaration first, and the evidence of connection afterward. Place v. Minster, 65 N. Y. 89; State v. Ross, 29 Mo. 32, 50. But it is to be cautiously done. Burke v. Miller, 7 Cush. 547.
    
    
      
       See p. 358 of this vol.
    
    
      
       The following is the complaint in full:
      “Plaintiffs complain, and show to the court, that the plaintiffs are, and, during the times hereinafter stated were, an incorporation duly incorporated and doing business, in the city of New York, under a special act of the legislature of the State of New York, passed April 16, 1864, and acts amendatory thereof.
      “That, on or about the fifth day of June, 1873, the seventh day of July, 1873, and the ninth day of August, 1873, the said defendants were possessed of certain documents purporting to be one hundred and four first mortgage bonds of the Buffalo, New York & Erie R. R. Company, a corporation duly created and existing under the laws of the State of New York, and purporting to have befen duly issued by, and to be the valid bonds of, the said company, and purporting to have been duly signed by the President and Treasurer, of said company, and purporting, to be impressed with the corporation seal thereof, and each of said so-called bonds so purporting to be for the payment, and of the value of one thousand dollars; that on or about the said fifth day of June, 1873, and the seventh day of July, 1873, and the ninth day of August, 1873, at the city of New York, the said defendants obtained and received of and from the plaintiffs the sum of seventy-five thousand dollars, and deposited with the plaintiffs, as security for the said sum of seventy-five thousand dollars, the said alleged and pretended bonds of the Buffalo, New York, & Erie Railroad Company.
      “That said sum of seventy-five thousand dollars was by defendants obtained of and from the plaintiffs at the time, and in the amounts as follows, viz.: the sum of thirty thousand dollars on the fifth day of June, 1873, the sum of thirty thousand dollars on the seventh day of July, 1873, and the sum of fifteen thousand dollars on the ninth day August, 1873, and the said one hundred and four alleged and pretended bonds of the said Buffalo, New York & Erie Railroad Company were deposited with the plaintiffs by the defendants, at the times and in the manner as follows, viz.: June fifth, 1873, forty-one thereof; July seventh, 1873, forty-three thereof ; and August ninth, 1873, twenty thereof; that afterward, and during the month of September, 1873, and not before, the plaintiffs learned, and now allege the truth to be that the said documents, purporting to be bonds of the said company, and each and every of them, were and was false, fictitious, forged, and counterfeit, and were not, nor was either of them, good or valid bonds of the said company; that said so-called and pretended bonds are now in the possession of the plaintiffs, and are of no value whatever, and the same are ready to be delivered up to the defendants, and would have been tendered to them but for the fact, that since the plaintiffs discovered the true character of the same, the said defendants cannot be found. Wherefore, the plaintiffs allege and claim the said defendants have had and received, to, and for the use of. the plaintiffs, the sum of seventy-five thousand dollars, at the times, and in the amount as above stated, and- that they, the said defendants, on the said days, became indebted because-of the premises, in the' sum of seventy-five thousand dollars, viz.: June fifth, 1873, in the sum of $30,000; July seventh, 1873, in the sum of $30,000, and August ninth, 1873, in the sum of $15,000, and that the same remain wholly unpaid.
      “Wherefore, plaintiffs demand judgment against the said defendants, for the sum of seventy-five thousand dollars, with interest upon $30,000 from June fifth, 1878, and with interest upon $30,000 from July seventh, 1873, and with interest upon $15,000 from" August ninth, 1873, besides costs of this action.”
    
   Earl, J.

This is an action to recover of Gleason and wife, Roberts and wife, and Corp, the sum of $75,000, had and received by them to and for the use of the plaintiff. It is alleged in the complaint that the money was obtained of the plaintiff on the security of forged bonds of the Buffalo, New York and Erie Railroad Company, and that $30,000 was thus obtained June 5, $30,000 July 7, and $15,000 August 9,'1873.

Upon the trial evidence was given, which it is claimed tended to show that the defendants, with others, were engaged in a conspiracy to forge the bonds and put them upon the market, for the purpose of defrauding any person who should advance any money on the faith of them. There was a verdict and judgment against all the defendants for these sums, with interest, and all of them have appealed.'

We have recently had before us the case of the National Trust Co., of the city of New York, against these same defendants, in which the pleadings were the same, and the evidente substantially the same as in this case. In that case we held that the action was purely ex contractu assumpsit for money had and received; that to maintain the action it was necessary for the plaintiff to establish that the defendants had received its money; or money to which it was entitled; and that it was not sufficient to show that they had by fraud or wrong caused the plaintiff to pay money to others, or to sustain loss or damage. But we also held that it was not necessary for the plaintiff to establish that each defendant personally received a share of the money obtained by means of the forged bonds, and that if the money was received by a common agent, those for whose benefit it was thus received were jointly liable for the whole sum, although the agent failed to pay over, and absconded with the whole of the money.

We further held that it was competent for the plaintiff to prove complicity on the part of all the defendants in the forgery, not for the purpose of establishing any liability on account of that, or for the wrong done, or damage caused the plaintiff thereby, but for the purpose of showing the interest of the defendants in the money obtained by means of the forged bonds. We reversed the judgment in that case, because these principles were not observed in the trial of that action ; and our decision was based upon exceptions to the charge, and to refusals to charge as requested.

Upon the trial of this action, the plaintiff attempted to show that all of the defendants were implicated in forging the bond, and that for the benefit of all of them Charles Rolston obtained of the plaintiffs the two items of $30,000, and Charles J. Williamson the item of $15,000. Rolston and Williamson fled soon after the money was obtained, and are not parties to this action.

On the argument before us it was admitted that there was not sufficient evidence that Williamson acted as agent.for any of these defendants in obtaining the $15,000, or that any of the defendants received any portion of it, and hence, that in any event, the judgment must be reduced by that sum, with the interest thereon, from August 9, 1873. It was also admitted that there was no sufficient evidence to support any recovery against the defendants Corp and Mrs." Gleason, and that the judgment, as to them, must be reversed and a new trial granted. But it is claimed that the plaintiff, has a valid recovery for .the $60,000, and interest against the other three defendants.

I have looked through the vast volume of evidence taken upon the trial of this action as carefully as 1 can, and I cannot find sufficient to sustain any recovery against Mrs. Roberts. There was evidence evidently connecting her with the forgery; but there was no evidence of any agreement or understanding between the forgers that she was to share in the proceeds of the forged bonds, or that she was personally to have any benefit therefrom. There was no evidence that Rolston was employed or acted as her agent in procuring the $60,000 of the plaintiff, and there was none that she actually received any part of that sum.

The fact that some money and valid bonds were found in her box in the office of the safe deposit company, is not sufficient to show that she received any of the plaintiff’s money.

That money and those bonds are in no way shown to have in any way come from the plaintiff or plaintiff’s money; and even it had been thus shown, the fact would not have justified the verdict which was recovered against her for the whole of the money obtained by Rolston. Even if it had been shown that with the money obtained by Rolston other persons purchased bonds and then delivered the bonds to her for safekeeping, or as' her own, she could not, in this action for money had and received, be made liable in the absence of proof, that Rolston, in some way, acted for her in obtaining the money. To authorize.#this recovery against her for all the money obtained by Rolston, it was not sufficient even to show that there was an unstanding among the forgers that she was in some way to receive some benefit from the forgery, or that she was to receive a portion of the proceeds of the forged bonds ; but it was necessary to show that she was one of the principals for whom Rolston acted in obtaining the $60,000. On the contrary, the proof given on the part of the plaintiff shows precisely the persons for whom Rolston acted in obtaining this money, and she was not one of such persons. The judgment as to her must, therefore, also be reversed.

As to the other two defendants, Gleason and Roberts, I think there was evidence enough to justify a verdict against them for the money obtained by Rolston.

That Rolston obtained the money upon the forged bonds, is undisputed. He absconded immediately afterwards, and there is no direct proof that either of these defendants received any of it.

The case against them depends mainly upon the evidence of the witnesses Pettis and wdfe, and Olmstead, all of whom were more or less implicated, and concerned in the forgery. Olmstead was the engraver who made the seal used upon the forged bonds, and Pettis was one of the active parties engaged in executing the forgery. He was, at the time of the trial, in prisón, under conviction for crime, in the State of Massachusetts, and his deposition taken there was read.

These were discreditable witnesses, but it was for the jury to determine what weight should be given to their evidence. They had the right to believe them, even if not corroborated (People v. Costello, 1 Denio, 83; Hoskins v. People, 16 N. Y. 344 ; People v. Dyle, 21 Id. 578 ; Dunn v. People, 29 Id. 523). But there were various significant circumstances, proved by other witnesses, tending to corroborate them, which it is needless to take time to refer to. The principal facts were testified to by Pettis, and without his evidence there would be no case against any of the "defendants. He testified to facts showing that these two defendants were the leaders among those engaged in the conspiracy, and that the others played subordinate parts. They manufactured the forged bonds, and mainly controlled them.

Pettis was to have from them a share of the bonds to dispose of, and he was to divide with them the proceeds of such bonds. Rolston was to take from them some of the bonds to dispose of, and he was to have one-third of the proceeds of such bonds, and each of them was to have one-third. The jury were authorized from the evidence to find that the forged bonds were delivered to Eolston in pursuance of this agreement, and that, in pursuance thereof, he disposed of them to the plaintiffs, and obtained the $60,000. In doing this he acted as agent for these two defendants, or for himself and them, and, in either event, they became responsible for his acts, no matter what he did with the money ; he acted for them when he obtained it, and hence their liability in this form of action was established. The judge, therefore, did right at the trial in refusing to nonsuit the plaintiff, and, as to these two defendants, to submit the case to the jury.

But it is claimed on the part of the appellants, that the judge at the trial, committed various errors in his rulings upon questions of evidence, and in his refusals to charge as requested, and such alleged errors must now be examined. While the charge did not very clearly or explicitly lay down the principles which should have governed the jury in their decision of the case, ifc was not excepted to, and hence cannot be complained of here. The counsel for .the defendants requested the judge to charge that they must entirely disregard the evidence of Pettis, unless he was sustained and corroborated by credible evidence upon material and relevant facts ; and he so charged. He then requested him to charge that if the jury found, from the evidence, that Mrs. Pettis was an actor in the alleged forgeries, she must be regarded as an accomplice and could not be used to sustain Pettis. This was refused. In this there was no error. In this State, as stated above, it is the law, that a person charged with crime may be convicted upon the uncorroborated evidence of an accomplice. Such evidence should be carefully scrutinized, and generally should be corroborated before it is relied on to produce a conviction. But if the jury believed the facts testified to by an accomplice uncorroborated, they can base their verdict upon it, and the judge presiding at the trial would not be justified in instructing the jury to disregard such evidence. And it must always be within the province of the jury, upon the same principles, to determine how much weight shall be given to the evidence of the wife of the accomplice, or of any other accomplice who is called to testify to corroboratory facts. When two accomplices are called as witnesses, whether more weight should be given to the evidence of two than of one, and whether they corroborate each other, and to what extent, are matters for the jury. The law was, therefore, laid down more favorably to the defendants than they could legally require.

After the judge had charged as requested, that if the jury found, from the evidence, that either of the witnesses, Mr. Pettis, Mrs. Pettis, or Olmstead, had committed perjury in any respect, the entire evidence of such witness should be disregarded, he was requested to charge as follows: “That if the jury found that Robert A. Pinkerton entered into a combination with Pettis to release him from his imprisonment, in consideration of Pettis’ incriminating the defendants Roberts, Grleason, and their wives and Corp, and in pursuance of such combination has testified untruly as to any facts, they must disregard his evidence, also that if the jury find from the evidence that Pinkerton did not find the seal sworn to in Roberts’ desk, and that he has testified falsely upon this subject, they must wholly disregard his evidence.”

There was no error in refusing these requests. I can find no evidence in the case which justified them ; and besides, the jury had already been sufficiently instructed as to the effect upon the evidence of a witness of a false swearing by him as to any fact.

The judge was requested to charge the jury that if they found, from the evidence, that there was any doubt about the fact that Rolston’s bank-book, or the fact that the envelope with A. H. Palmer on it was found in Grleason’s safe, they should disregard Pinkerton’s evidence as to these facts. This was properly refused. He had already fairly instructed the jury upon the matter of doubt, and had instructed them that if they had any doubt about any matter, to give the benefit of the doubt to the defendants. This was more favorable than the defendants could legally require in a civil action. In such an action the plaintiff is not bound to establish any fact so clearly that it shall be free from doubt. All that is required of him is that he shall satisfy the jury by a preponderance of evidence; and he is never called upon to free their minds of all doubt.

It is sufficient to say, as to the other requests to charge, that I have carefully examined them, and am of opinion that none of them were improperly refused.

There now remains for consideration only the rul- ' ings of the judge during the trial upon questions of evidence, so far as they affected the defendants Gleason and Roberts.

It was needful for the plaintiff to establish that Rolston acted for these defendants when he obtained the money of the plaintiff upon the forged bonds. Whether or not Rolston did so act, was the main issue to be tried. As bearing upon this issue, it was competent for the plaintiff to prove the relations which existed between Rolston and the defendants; that they had entered into a conspiracy to forge these bonds and put them upon the market; that they were jointly concerned in the forgery ; and any other facts tending to show a scheme to get money from the plaintiff by means of forged bonds. As the case was to be made out under great difficulties, it was proper for the court to allow the plaintiff considerable latitude in marshaling the facts and circumstances bearing upon the issue. The plaintiff had the right to show, under the complaint, that there was a conspiracy, engaged in by the defendants and others, to forge these bonds, and to procure this money. It had the right to give any competent evidence to establish the conspiracy; and having established it, it could then prove the acts, admissions and declarations of any one of the conspirators, done and made during the pendency of the criminal enterprise, in pursuance and furtherance thereof, and in reference thereto (1 Greenl. on Ev. § 111). Such evidence is received on the theory that the conspirators have jointly assumed to themselves, as a body, the attributes of individuality, so far as regards the common design, thus rendering whatever is done or said by any one in furtherance of that design a part of the res gestee, and therefore the act of all. It is the same principal of identity with each other that governs in regard to the acts and admissions of agents, when offered in evidence against the principals, and of partners against the partnership (3 Greenl. on Ev. § 94). Keeping these principles in view, we have carefully examined the numerous exceptions taken during the progress of the trial, and while quite desirous to uphold a recovery against the two defendants, which seems to be meritorious, we are brought to the conclusion that considerable damaging evidence was received in violation. of these rules, the observance of which cannot with safety be dispensed with in the administration of justice.

The main facts in this case, which it was necessary to establish, were not undisputed. They were either disputed upon the evidence given on behalf of the defendants, or were testified to by discreditable witnesses on the part of the plaintiff. Upon the whole case the jury could have found for the defendants, and their verdict could not have been disturbed as against the evidence or weight thereof. In such a case it is impossible to say that improper evidence, damaging in its character, may be disregarded as harmless.

Mrs. Pettis, while under examination on the part of the plaintiff, testified that upon one occasion she called at the house of Mr. Gleason and found him, her husband, and Mr. Corp, and perhaps Mrs. Gleason, locked in a room together, under suspicious circumstances, which she detailed. She then returned home, and her husband came home in the evening; and as to what took place then she testified as follows: “I made a very strict inquiry what he was doing, and demanded explanation why he locked the door. He said, ‘ Mr. and Mrs. Roberts are very much opposed to you; you threatened to expose Mrs. Roberts when you compelled her to put up something for my bail, and Mr. Roberts considers you a dangerous woman to know any of his business, and it is not likely they would want you in the house when they were putting seals on counterfeit bonds. I never want you to go near .these people again.” I think he said they were Buffalo and Erie; I would not be sure what he said, but I think he mentioned the name of the bonds.” The evidence was objected to as hearsay and incompetent, and was allowed to show a conspiracy between the defendants. The objection should have been sustained. These were merely the declarations of Pettis as to a past transaction. They had nothing to do with any res gestee, accompanied no act done in furtherance of the criminal enterprise, had nothing to do with the formation of a conspiracy, or with carrying it forward. Therefore, within the principles above laid down, the evidence was incompetent. He cannot be regarded as the agent of his co-conspirators to make these declarations.

Mr. Pettis was allowed to testify that in 1854, 1855 and 1856, from seven to nine years before the transaction in question in this action, the defendant Robert and his brother kept a saloon in New York, where they dealt in counterfeit money, and that their bar-room was the resort of counterfeiters. This was objected to and received. It was clearly improper.to show that Roberts had been engaged in other crimes, or that he harbored or associated with other criminals.

It was error to allow Mrs. Roberts, on her cross-examination, to testify that evidence was given by some witnesses, upon some prior trial, referring to a time when her husband, some years before 1873, was arrested and taken from his saloon, that there was found in his saloon several thousand dollars of counterfeit or broken bank bills.

Bangs, a witness for plaintiff, a detective agent, was allowed to testify that some years before 1873, he arrested defendant Roberts and his brother, for robbing Adams Express Company. This was error.

A witness with whom Mr. and Mrs. Rolston boarded under the name of Stewart, was permitted to testify that he heard the Stewarts speak of the Gleasons as intimate friends, and that he had heard Mrs. Stewart speak about Mrs. Gleason’s family a great many times. This was error.

The defendant Roberts was not sworn, on the trial of this action. It was claimed that he was in prison, under an order of arrest issued in this action, and that he could not, therefore, be produced. He was sworn as a witness, in the prior action, of the National Trust Company, and on the trial of this' action, portions of his cross-examination upon that trial were read by the plaintiff, for the purpose of contradicting Mrs. Roberts as a witness, in this action, and also as evidence against Roberts. So far as Roberts stated anything in that evidence pertinent to the issue in this action, such statements were competent evidence against- him of the facts stated, and they were competent for no other purpose. Much of the cross-examination read was wholly immmaterial and incompetent. It was incompetant to discredit Mrs. Roberts ; and particularly all that part of it which related to Mr. Campbell, • and other discreditable or criminal transactions of Roberts, was improper, as he was not a witness in this action.

On the. cross-examination of Mrs. Pettis, the defendants offered to show that upon a material matter, she testified differently before the grand jury, and the offer was excluded. This was error. There is no rule of law, or principle of public policy, which prohibits a party from asking an adverse witness whether he did not testify differently before a grand jury, from the evidence given by him upon the pending trial.' Even a grand juror may be called for that purpose (3 R. S. 1019, 6 ed. § 316).

These are not all the errors which I think I have found, but I have now gone far enough to show that this judgment must be reversed. We cannot overlook such errors, because the trial has been long and the evidence is voluminous, and the objections and exceptions very numerous. Whether the trial be long or short, or the exceptions be few or many, every party has the right to demand that he shall not be prejudiced by improper evidence.

The judgment must be reversed, a new trial granted, costs to abide event.

All concurred, except Folger and Andrews, JJ., absent.

Note.—The English rule followed in a number of the States, and in earlier cases in this State, is that proof beyond reasonable doubt is usually required to establish a charge of crime in a civil action. The leading case is Thurtell v. Beaumont, 1 Bing. 329; approved in Steph. Dig. Ev. 98; and see Chalmers v. Shackell, 6 Carr. & P. 475. The American cases are Chaffee v. United States, 18 Wall. 545; The Mohler, 21 Id. 230; McConnell v. Delaware, &c. Ins. Co., 18 Ill. 228; Lexington Ins. Co. v. Paver, 16 Ohio St. 324; Wonderly v. Nokes, 8 Blackf. 589; Lanter v. McEwen, Id. 495; Bissel v. West, 35 Ind. 54; Tucker v. Call, 45 Id. 31; Ellis v. Lindley, 38 Iowa, 461; 23 Id. 1; Polston v. See, 54 Mo. 291; Clark v. Dibble, 16 Wend. 601; Hopkins v. Smith, 3 Barb. 592, 602; Woodbeck v. Keller, 6 Cow. 118; Berckmans v. Berckmans, 17 N. J. Eq. 453; Taylor v. Morris, 22 Id. 606; Strader v. Mulvane, 17 Ohio, 624; Steinman v. McWilliams, 6 Penn. St. 170; Gorman v. Sutton, 32 Id. 247; Coulter v. Stewart, 2 Yerg. 225; Freeman v. Freeman, 31 Wisc. 235; Mix v. Woodward, 12 Conn. 262, 288; Dwinells v. Aikin, 2 Tyl. (Vt.) 75; Warner v. Commonwealth, 2 Va. Cas. 105.

To the contrary, see Ætna Ins. Co. v. Johnson, 11 Bush, 587; S. C., 21 Am. R. 223; Sloan v. Gilbert, 12 Bush, 51; S. C., 23 Am. R. 708; Hoffman v. Western Mar. & F. Ins. Co., 1 La. Ann. 216, 219: Wightman v. Same, 8 Rob. (La.) 442; Schmidt v. New York Union Mut. Fire Ins. Co., 1 Gray, 529, 534; Rothschild v. Am. Cent. Ins. Co., 62 Mo. 356; Marshall v. Thames Fire Ins. Co., 43 Id. 586; Washington Union Ins. Co. v. Wilson, 7 Wisc. 169; Blaeser v. Milwaukee Mech. Mut. Ins. Co., 37 Id. 31; S. C., 19 Am. R. 747; Scott v. Home Ins. Co., 1 Dill. C. Ct. 105; Huchberger v. Merchant’s Fire Ins. Co., 4 Biss. C. Ct. 265; Watkins v. Wallace, 19 Mich. 57; Mathews v. Huntley, 9 N. H. 150 ; Folsom v. Brown, 5 Fost. (N. H.) 122; Kincade v. Bradshawe, 3 Hawks, 63; Wright v. Hardy, 22 Wisc. 348.

The best considered authorities, among those that require mere preponderance of probability, allow the presumption of innocence. Kane v. Hibernia Ins. Co., 10 Vroom (N. J.) 697; S. C., 23 Am. R. 239; Brandish v. Bliss, 35 Vt. 326; Scott v. Home Ins. Co., 1 Dill. C. Ct. 106.  