Opinion of the Court, by FREEDMAN, J.

ported or improbable professions, and to construe their acts in the light which the facts and circumstances of the case threw upon their possible and probable motives, designs, and interests. Upon the whole testimony, which is by far too voluminous to be satisfactorily adverted to here, it is impossible for any candid mind to believe that there could have been so much plotting and concealment, and yet so much harmony and concert of action, to accomplish a certain result, as the case discloses, without the presence of a master-mind, who organized and perfected the whole plan, and who from time to time set the parties in motion as circumstances seemed to require. That this master-mind was Wyatt, is a conclusion which, on a critical examination of the testimony, can not be resisted. He it was, therefore, that more than any other witness could have shown by explanatory testimony, if the fact could be shown at all in the face of the facts already established by the plaintiffs, that no legal or equitable grounds existed for setting aside the sale and the subsequent conveyances. The defendants, however, did not call him as a witness, nor did they account for such omission. Neither did Van Alstine, though present in court, see fit to take the stand. In view of this failure to produce material testimony clearly within reach, the court was justified in assuming that such failure was the result of knowledge or fear on the part of the defendants that their case could not be improved by the production of such testimony. On the other hand, upon the case as left by the defendants, the conclusion was almost unavoidable that all the defendants had been engaged in the fraudulent combination at the instigation of Wyatt.

This being so, the findings of fact made below can not be disturbed. Nor can I discover any error in the conclusions of law based upon the facts as found. The relief awarded in this case was not awarded against a

Opinion of the Court, by FREEDMAN, J.

purchaser for value, nor against a purchaser at all, nor against an innocent party who had received, without fault, through the fraud of another, property which in equity belonged to the plaintiffs. It was a case of an active, fraudulent combination, and in such a case the law gives complete restitution, and all the guilty parties are made answerable for the whole of the property (Troup v. Wood, 4 Johns. Ch. 260).

If any of the defendants were entitled to an adjustment of liabilities as between themselves, the attention of the court should have been directed to it, which was not done.

The defendants have argued that the legal estate of the property in question was in Mr. Bruce, as trustee for the plaintiffs, and that the plaintiffs had no leviable interest in the realty. But they are not in a position to raise this question, having by their answers admitted title in the plaintiffs (Paige v. Willet, 38 N. Y. 28; Thomas v. Austin, 4 Barb. 265).

The objection that the plaintiff's should have sought their remedy at law is equally untenable. The point was not raised below, and defendants submitted to the equitable jurisdiction of the court without complaint.

Finally, it is insisted that the court erred in admitting the declarations of the alleged confederates before proof of the combination. But this was a matter resting in the discretion of the court. Evidence of a conspiracy must have a beginning. The remarks and declarations of conspirators, directions given by them, and their conversations held during the carrying out of the conspiracy, are acts and as such part of the res gesta. If the conspiracy is finally, on all the evidence, clearly made out, the order in which the proof was given, is not material. It therefore rests solely in the discretion of the court to determine whether or not, at a particular stage of the proceedings, a sufficient

Statement of the Case.

foundation has been laid to admit evidence of such declarations (1 Greenl. on Ev. § 111).

The judgment should be affirmed with costs.

CURTIS and SPEIR, JJ., concurred.

THE ATLANTIC AND PACIFIC TELEGRAPH COMPANY v. WILLIAM E. BARNES, JAMES A. BARNES, AND HENRY BISCHOFF, JR.

SURETIES ON BOND FOR THE FAITHFUL PERFORMANCE BY THE PRINCIPAL OF CERTAIN DUTIES AND TRUSTS, AND THE ACCOUNTING AND PAYING OVER OF ALL MONEYS OF THE OBLIGEE COMING TO HIS HANDS. WHAT DOES NOT DISCHARGE THEM FROM LIABILITY. Where the principal, after the execution of the bond, received in the course of his employment, moneys of the obligee which he failed to account for and pay over, which was wellknown to the obligee,

HELD,

that the obligees thereafter keeping the employee in his service, without notifying the sureties of such default, did not discharge them from liability for future default, it not appearing either that the omission to give notice resulted in any injury to the sureties, or that the default was fraudulent in its character.*

Before FREEDMAN, CURTIS, and SPEIR, JJ.

Decided February 1, 1875.

* Whether the sureties would have been discharged if either the element of fraud in the default; or that of injury resulting from the omission to give notice, or both, had existed, seems to have been regarded by the court as not presented by the case for decision.

Statement of the Case.

Exceptions ordered to be heard at general term.

In this case a verdict of two hundred and sixtynine dollars and sixty-seven cents was directed for the plaintiff, at the trial term, exceptions to be heard in the first instance at general term, and judgment to be meantime suspended.

The plaintiff moved for judgment.

No testimony was taken, but the case was tried upon admissions made by the respective parties.

From these it appeared that the defendant, William E. Barnes, entered the plaintiff's employ December 23, 1873, and that he and the co-defendants, James A. Barnes and Henry Bischoff, Jr., executed a bond conditioned, that so long as said employment continued, said William E. Barnes should well, truly, and faithfully perform all the duties assigned to, and trusts reposed in, him by the plaintiff, and in particular should faithfully account for all moneys and property of said plaintiff which should come to his hands.

Upon this bond the present action was brought to recover the sum of two hundred and sixty-nine dollars and sixty-seven cents, in which amount William E. Barnes was indebted to the plaintiff at the time of his discharge (which occurred March 24, 1874), on account of moneys of the plaintiff which had come to his hands while the employment continued.

The defendants, James A. Barnes and Henry Bischoff, Jr., were duly notified of the deficiency, and payment of said sum was duly demanded, and refused.

When one month of the employment had expired (January 30th), said William E. Barnes was behindhand in his accounts with the plaintiff to the amount of fifteen dollars and ninety-two cents, and plaintiff had knowledge of this fact, but did not notify said James

Defendant's points.

A. Barnes and Bischoff; and it is claimed by these defendants, who alone have answered the complaint, that by reason thereof they as sureties are discharged.

McDaniel, Lummis, and Souther, attorneys, and Charles Edward Souther, of counsel for plainti urged;-I. Defendants' undertaking is absolute, by the express terms of the instrument. All are bound originally and no one collaterally. The defense of suretyship is, therefore, not pertinent.

II. But regarding defendants as sureties, their liability on the bond has not terminated. Nothing in the admitted facts constitutes a defense to the action (Albany Dutch Church v. Vedder, 14 Wend. 165; approved, Looney v. Hughes, 26 N. Y. 522, and cases there cited; Schroeppell v. Shaw, 3 N. Y. (3 Comst.) 446; Remsen v. Beekman, 25 N. Y. 552, 557 ; Black River Bank v. Page, 44 N. Y. 453). Of course there is no question but that the action is well brought. The bond being joint and several, all the obligors are properly included as defendants in a single action (Code, § 120; Carman v. Plass, 23 N. Y. 286; Brainard v. Jones, 11 How. Pr. 569).

J. Edwin Leary, attorney and of counsel for defendants, urged;-I. Equity holds the creditor or employer to good faith towards the sureties, and to the exercise of so much diligence and care in the management of his affairs as a prudent man would ordinarily make use of, and although the creditor could not be held to exercise active diligence in investigating the accounts of his servant or manager, still when knowledge of a default or dishonesty is brought to the knowledge, or confessed to the creditor or employer, the sureties are not responsible for any subsequent defalcation or dishonesty if the employment is continued (Story Eq. Jur. $$ 324-526; 2 Vernon (Eng.)