2 Id. 486. These decisions were made before the amendment to section 2606, in 1884: Ch. 399. Subsequent to that amendment, the learned surrogate of New York County entertained an application to compel an executor of a deceased executor to account, and his decree was sustained by the general term: In re Fithian, 44 Hun, 457. In that case it was held that the purpose of the amendment was to develop all that the executor knew or could learn about the trust estate and in reference to it. We concur in this opinion. Undoubtedly no decree could be made against the administrator if the petition to the surrogate failed to allege or the proof failed to show property of the infant in the administrator's possession. But before the sureties on the bond can be sued, proceedings in the surrogate's court must, at least, establish the fact that none of the infant's property has come into the administrator's possession. In the absence of a decree to that effect, the presumption would be that the administrator has possession of the infant's estate, and until it is otherwise established, a devastavit will not be presumed. The judgment should be reversed, and a new trial granted, with costs to abide the event. GUARDIAN AND WARD. The liability of a surety on a guardian's bond is fixed by proof that the guardian never paid over to his ward the sum which the court ordered him to pay over, and that there has never been any settlement between the guardian and ward: Gillet v. Wiley, 126 Ill. 310; 9 Am. St. Rep. 587. But an action will not lie against a guardian's sureties till there has been a settlement of the guardian's account with the court, and a failure to pay as ordered by the court: Gillespie v. See, 72 Iowa, 345. LEONARD V. POOLE. [114 NEW YORK, 871. ACTION TO ADJUST DIFFERENCES OF PARTIES WHO HAVE ENGAGED IN UNLAWFUL PLOT to advance the price of an article of food will not be entertained by the courts. PERSONS KNOWINGLY PROMOTING AND PARTICIPATING IN CARRYING OUT CRIMINAL SCHEME ARE ALL PRINCIPALS, and the fact that one of them acts, in some respects, in subordination to the others, and is to profit less than the others, or not at all, by the consummation of the scheme, does not render him less a principal. LAW-BREAKERS ARE NOT ENTITLED TO AID OF COURTS to adjust difference; arising out of and requiring an investigation of their illegal transaction. ACTION for an accounting. Between August 13, 1879, and February 9, 1880, the defendants, Elmore A. Kent and Abram Poole, were partners under the firm name of E. A. Kent & Co., buying and selling produce on commission at New York and Chicago. During the same period, Henry C. Butcher, Howard Butcher, and Henry P. Darlington were partners under the name of Washington Butcher's Sons, carrying on the same business at Philadelphia and Chicago. Between the same dates, Darius Miller and Nathan G. Miller were partners under the name of D. & N. G. Miller, engaged in the same business at New York and New Britain. And between the same dates James R. Keene was engaged in business in New York. The above-named firms and Keene executed and delivered to E. A. Kent & Co. this contract, on the day of its date: "The undersigned, each for himself, and not for the others, hereby agree to form a pool or combination for the purpose of buying and selling one hundred and twenty thousand tierces of lard, and to receive and pay for the amounts set opposite their respective names, to wit, James R. Keene, forty thousand tierces; Washington Butcher's Sons, forty thousand tierces; D. & N. G. Miller, twenty thousand tierces; E. A. Kent & Co., twenty thousand tierces; and the said parties, each for himself, authorizes and empowers E. A. Kent & Co., in consultation and with the approval of James R. Keene, N. G. Miller, and Henry C. Butcher (parties hereto) to purchase and sell at their discretion, or that of a majority of them, the aforesaid quantity (one hundred and twenty thousand tierces), each agreeing to be responsible for the amount set opposite their respective names, and no more; any profit or loss arising from said purchases and sales to be divided pro rata among the subscribers hereto; and the said parties hereby agree to furnish, on demand, to E. A. Kent & Co., a margin of not less than one dollar per tierce for each and every tierce purchased, and further additional margins, if required, by any decline in the market value thereof. And whereas James R. Keene is the present owner of fifty thousand tierces of lard, Washington Butcher's Sons of forty thousand tierces, and D. & N. G. Miller of sixteen thousand tierces, now, for and in consideration of the sum of one dollar to each of the aforesaid parties paid by E. A. Kent & Co., and for other valuable considerations, receipt of which is hereby acknowledged, the aforesaid James R. Keene, W. Butcher's Sons, and D. & N. G. Miller agree and bind themselves to hold, tie up, and effectually withdraw from market, so that the same cannot be sold during the continuance of this agreement without the written. consent of all the parties hereto the aforementioned number of tierces of land, to wit, James R. Keene, fifty thousand; W. Butcher's Sons, forty thousand; D. & N. G. Miller, sixteen thousand; and from time to time, when demanded by E. A. Kent & Co., to furnish the said E. A. Kent & Co. with evidence satisfactory to them that the said number of tierces of lard are withheld from market and in possession of the aforesaid parties respectively; and it shall be the duty of said E. A. Kent & Co. to obtain such evidence of possession whenever required by either of the parties hereto. It is further understood and agreed that this agreement, in all its provisions and requirements, shall remain in full force and effect until the aforesaid one hundred and twenty thousand tierces of lard have been accumulated and sold, unless sooner dissolved by the consent in writing of all the parties hereto. "NEW YORK, August 13, 1879. "James R. Keene..... 40,000 tierces of lard. "Washington Butcher's Sons..... 40,000 tierces of lard. "D. & N. G. Miller.. 20,000 tierces of lard. "E. A. Kent & Co... ... tierces of lard." The court found that at the date of this contract it was agreed between the signers that E. A. Kent & Co. were not to be interested as principals in the transaction, but were to make the purchases and sales as brokers. It also found that shortly after the above contract was executed, the following contract was executed and delivered by the signers thereof to E. A. Kent & Co., the existence thereof being unknown to James R. Keene: "For and in consideration of the payment to us, the undersigned, one half each, by E. A. Kent & Co., of any and all profits realized from the purchase and sale of twenty thousand (20,000) tierces lard, or any part thereof, E. A. Kent & Co.'s shares of a total of one hundred and twenty thousand (120,000) tes. lard, as set forth in a certain agreement made of the thirteenth day of August, by and between E. A. Kent & Co., D. & N. G. Miller, Washington Butcher's Sons, and James R. Keene, we, the undersigned, respectively, D. & N. G. Miller and Washington Butcher's Sons, hereby guarantee and assume all loss, as against said E. A. Kent & Co., on ten thousand (10,000) tcs., each, arising from said transactions. "WASHINGTON BUTCHER'S SONS. "D. & N. G. MILLER. "Witness: E. A. KENT." To carry out their contract, Keene, W. Butcher's Sons, and D. & N. G. Miller furnished large sums of money to E. A. Kent & Co., with which, from time to time, between the date of the contract and January 31, 1880, they bought and sold, on the produce exchanges of New York and Chicago, futures and options in lard; and also bought large quantities of lard, some of which was, from time to time, sold. These sales were made so as to cause, and for the purpose of causing, the price of lard to fall, so as to enable the pool to purchase it at satisfactory prices, withdraw it from the market, and thereby greatly increase the market price. Many purchases and sales were made upon the approval of James R. Keene, N. G. Miller, and Henry C. Butcher, or a majority of them, but many were made by E. A. Kent & Co. without such approval, and upon their own judgment. During the period of these transactions, E. A. Kent & Co., from time to time, delivered to James R. Keene statements of the purchases and sales made for the parties interested. Many of the purchases and sales entered in these statements did not describe actual transactions, but described alleged sales by themselves to themselves, and alleged purchases by themselves from themselves, upon which alleged transactions commissions were charged. These facts were not disclosed by the statements, nor in any other way. On the 31st of January, 1880, the defendants furnished to Keene a sunimary statement of the alleged transactions, which showed $133.09 due from them to him, and on the 6th of February, 1880, they sent him a check for this amount; and on February 9, 1880, they sent him a check for $127.95, an alleged difference in interest. Keene retained and collected these checks, but did not accept them in settlement. The court found that these statements were fraudulent, and that a much larger sum was due to Keene from the defendants; but as the parties had engaged in an unlawful conspiracy, the court refused to adjust their differences, and dismissed the complaint, with costs. The general term affirmed the judgment, and the plaintiff appealed. Stephen H. Olin, for the appellant. FOLLETT, C. J. When the transactions out of which this action arose were being carried on, the statutes of this state provided that if two or more persons conspire to commit any act injurious to trade or commerce, each of them is guilty of a misdemeanor: 2 R. S. 692, sec. 8, subd. 6. The same provision is contained in the Penal Code, section 168. The scheme entered into by the parties to the contract of August 13, 1879, was an indictable misdemeanor: 2 R. S. 692, sec. 8; People v. Fisher, 14 Wend. 9; 28 Am. Dec. 501; Hooker v. Vandewater, 4 Denio, 349; 47 Am. Dec. 258; Stanton v. Allen, 5 Denio, 434; 49 Am. Dec. 282; Arnott v. Pittston and Elmira Coal Co., 68 N. Y. 558, 565; 23 Am. Rep. 190; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173. The scheme which the parties to the contract for a time pursued, and sought to consummate, was identical with the one described in the contract, and equally criminal. That Keene, Washington Butcher's Sons, and D. & N. G. Miller agreed to engage, and actually engaged, in an unlawful plot to advance the price of lard cannot be successfully denied, and the courts of this state will not entertain an action to adjust their differences. This proposition is well settled; and we do not understand that the learned counsel for the appellant gainsays it, nor does he assert that the rule would not be applicable to a case arising between those parties and out of these transactions. The learned counsel for the appellant insists that Kent & Co. were not principais, but were mere agents for the principals, and that they cannot avoid payment upon the ground that the transactions were illegal. When persons knowingly promote and participate in carrying out a criminal scheme, they are all principals; and the fact that one of the parties acts in some respects in subordination to the others, and is to profit less than the others, or not at all, by the consummation of the scheme, does not render such person less a principal. This rule is elementary, and does not require elaboration or the citation of authorities. Throughout the period covered by the transactions, these defendants bought and sold lard and futures and options in lard, and actively engaged in the attempt to carry out the unlawful enterprise. If, at the close of their transactions, Keene and his associates had been found to be owing Kent & Co., we think it very clear that the illegality of the enterprise would have been a perfect defense to an action brought by Kent & Co. to recover the sum due: Bartlett v. Smith, 13 Fed. Rep. 263; Cobb v. Prell, 15 Id. 774; |