committed by a combination of several; as in the case of a conspiracy (carried out) for a malicious prosecution. Dreux v. Domec, 18 Cal. 83; Swan v. Saddlemire, 8 Wend. 676; Griffith v. Ogle, 1 Binn. 172; Haldeman v. Martin, 10 Penn. St. 369; Davenport v. Lynch, 6 Jones (N. Car.), 545; Hinchman v. Richie, Brightl. 143. Or a combination to entice a citizen of one State into the jurisdiction of another for the purpose of his arrest, though there be a cause of action against him. Phelps v. Goddard, 1 Tyler, 60. Or a combination to defraud. Bulkley v. Storer, 2 Day, 531; Cowles v. Coe, 21 Conn. 220; Adams v. Paige, 7 Pick. 542; Talbot v. Cains, 5 Met. 520; Penrod v. Morrison, 2 Penn. 126; Whitman v. Spencer, 2 R. I. 124; Johnson v. Davis, 7 Tex. 173; Sheple v. Page, 12 Vt. 519. The conspiracy in itself, as was decided in the principal case, is not so unlawful as to be actionable. The action lies for doing the (or at least some) unlawful act, not for conspiring to do it. Kimball v. Harman, supra; Castrique v. Behrens, 30 L. J. Q. B. 163; Kirkpatrick v. Lex, 49 Penn. St. 122; Parker v. Huntington, 2 Gray, 124; Herron v. Hughes, 25 Cal. 555; Hall v. Eaton, 25 Vt. 458; Eason v. Petway, 1 Dev. & B. 44; Bowen v. Matheson, 14 Allen, 499. But if any damage is sustained in consequence of the conspiracy, an action lies though the act designed was not committed. Patten v. Gurney, 17 Mass. 186. In the case of Swan v. Saddlemire, 8 Wend. 676, it is said to be sufficient that the defendants' act has caused trouble, inconvenience, or expense. In cases where the act is actionable per se, as in libel and certain cases of slander, it is not necessary, of course, to prove any special damage. Hood v. Palm, 8 Barr, 237. In Parker v. Huntington, 2 Gray, 124, the plaintiff declared against the defendants for maliciously conspiring to have him indicted for perjury; and there was a demurrer, on the ground that the declaration did not set out any agreement to do an unlawful act, or a lawful act by unlawful means. The demurrer was overruled; and the court said that as the action was not for a malicious prosecution for treason or for a capital felony, it was in no sense an action for conspiracy. It was simply an action on the case, and the charge of conspiracy was mere surplusage, intended as matter of aggravation. In some cases, however, the allegation of a conspiracy to injure the plaintiff, when followed by actual injury, becomes important; as where the injury in itself is one for which the law gives no redress. Thus, in Burton v. Fulton, 49 Penn. St. 151, the plaintiff sued the defendants as directors of a school board for maliciously conspiring to secure her removal from the position of teacher in one of their schools; and it was held that inasmuch as the defendants had the power of removal, the injury which may have resulted to the plaintiff from their action was not a ground of civil redress without proof of actual malice. See also Wellington v. Small, 3 Cush. 145; Leavitt v. Gushee, 5 Cal. 152; Newall v. Jenkins, 26 Penn. St. 159; Johnson v. Davis, 7 Tex. 173; Gaunce v. Backhouse, 37 Penn. St. 350; Hinchman v. Richie, Brightl. 143. In cases of this kind, where the fact of conspiracy is essential (in order to show the unlawfulness of the act and injury complained of) to the plaintiff's case, it is necessary, of course, to prove an actual combination or participation. See Gaunce v. Backhouse, 37 Penn. St. 350; Benford v. Sanner, 40 Penn. St. 9. It is not, however, necessary to prove an actual participation in the act in every case. See Page v. Parker, 43 N. H. 363, 367, where the court say that if the jury found that Reding (one of the defendants), with the other two, had combined and conspired to effect a common object, and it was arranged that each should do certain acts and perform certain parts, with a view to the attainment of the common result, or that one or two were to be the active agents while the other one or two remained in the background and took no open or visible part in the transaction, they would still all be alike liable for the acts of all or either of them. So, too, in Tappan v. Powers, 2 Hall, 277, it was held, on demurrer to the plaintiff's declaration, that whatever is done in pursuance of a fraudulent combination by any of the parties concerned in it may be averred to be the act of all. In Livermore v. Herschell, 3 Pick. 33, it was held in an action on the case in the nature of conspiracy against three for obtaining goods upon credit by false and fraudulent representations, evidence that the representations were made by one alone in pursuance of a previous agreement and confederacy with the other two, though in their absence, would sustain the declaration charging the three with the wrong. See also Bredin v. Bredin, 3 Barr, 81; Hinchman v. Richie, Brightl. 143. But if as to one of the defendants there be no collusion or participation in the scheme or in its execution, he cannot be found guilty by evidence of mere silent observation and approval of the act. Brannock v. Bouldin, 4 Ired. 61. See Johnson v. Davis, 7 Tex. 173. It has been supposed that since husband and wife are in law but one person, the charge of conspiracy cannot be sustained against them alone. Kirtley v. Deck, 2 Munf. 10, 15. But this was upon the authority of Fitzh. Nat. Brev. 116, which, as we have seen, treats mainly of the ancient writ of conspiracy; and this rule is there spoken of as applying to the case of a writ of conspiracy for indicting the plaintiff of felony. In cases of trespass, an action for a false and malicious prosecution would clearly lie against husband and wife, though alleged to have been per conspirationem, &c. (4 Car. & P. 349. Common Pleas, England, Nisi Prius, Trinity Term, 1830.) Assault. A. was advancing in a threatening attitude, with an intention to strike B., so that his blow would have immediately reached B. if he had not been stopped. Held, an assault, though at the particular moment when A. was stopped he was not near enough for his blow to take effect. ASSAULT. The declaration stated that the defendant threatened and attempted to assault the plaintiff. Plea, not guilty. It appeared that the plaintiff was acting as chairman at a parish meeting, and sat at the head of a table, at which table the defendant also sat, there being six or seven persons between him and the plaintiff. The defendant, in the course of some angry discussion which took place, having been very vociferous, and having interrupted the proceedings of the meeting, a motion was made that he should be turned out, which was carried by a very large majority. Upon this the defendant said he would rather pull the chairman out of the chair than be turned out of the room, and immediately advanced with his fist clenched toward the chairman, but was stopped by the church-warden, who sat next but one to the chairman, at a time when he was not near enough for any blow he might have meditated to reach the plaintiff; but the witnesses said that it seemed to them that he was advancing with an intention to strike the chairman. Spankie, Serjt., for the defendant, upon this evidence con tended that no assault had been committed, as there was no power in the defendant, from the situation of the parties, to execute his threat. There was not a present ability; he had not the means of executing his intention at the time he was stopped. TINDAL, C. J., in his summing up, said: It is not every threat, when there is no actual personal violence, that constitutes an assault; there must in all cases be the means of carrying the threat into effect. The question I shall leave to you will be, whether the defendant was advancing at the time, in a threatening attitude, to strike the chairman, so that his blow would almost immediately have reached the chairman, if he had not been stopped. Then, though he was not near enough at the time to have struck him, yet if he was advancing with that intent, I think it amounts to an assault in law. If he was so advancing that, within a second or two of time, he would have reached the plaintiff, it seems to me it is an assault in law. If you think he was not advancing to strike the plaintiff, then only can you find your verdict for the defendant; otherwise, you must find it for the plaintiff, and give him such damages as you think the nature of the case requires. Verdict for the plaintiff. Damages 18. COLE v. TURNER. (6 Mod. 149; s. c. Holt, 108. King's Bench, England, Nisi Prius, Easter Term, 1705.) Battery. To touch another in anger, though in the slightest degree, or under pretence of passing by, is in law a battery. HOLT, C. J., upon evidence in trespass for assault and battery, declared, First, that the least touching of another in anger is a battery. Secondly, if two or more meet in a narrow passage, and, without any violence or design of harm, the one touches the other gently, it will be no battery. Thirdly, if any of them use violence against the other, to force his way in a rude, inordinate manner, it will be a battery; or any struggle about the passage to such degree as may do hurt will be a battery. ELLIOTT v. BROWN. (2 Wend. 497. Supreme Court, New York, May, 1829.) Son Assault Demesne. The party first attacked, in a personal rencontre between two individuals, is not entitled to maintain an action for an assault and battery, if he uses so much personal violence towards the other party, exceeding the bounds of self-defence, as could not be justified under a plea of son assault demesne, were he the party defendant in a suit. ERROR from the New York Common Pleas. Brown sued Elliott in an action of an assault and battery. The defendant pleaded not guilty, and subjoined a notice of son assault demesne. On the trial of the cause, the plaintiff proved that the defendant struck him in the face, or put his fist in his face; upon which, as it appeared by the evidence on the part of the defendant, the plaintiff threw the defendant down on the pavement with violence, and when he arose again clenched him and threw him down, his head striking the curb-stone; his head was badly cut, and bled; he was greatly hurt and bruised, and was confined to his room for sixteen or seventeen days, and was attended by a physician, who testified that he found him very ill on the night he received the injury, that he was laboring under a concussion of the brain, and a wound in his head, which was bleeding. It appeared that the plaintiff was a very large and powerful man, and that the defendant was a small elderly man, and that it was with difficulty the former was torn from the latter when lying on the ground. The testimony was conflicting as to the fact whether the defendant struck the first blow. The judge charged the jury that they must determine who commenced the affray by committing the first personal violence; that the defendant had been much hurt, but yet the inquiry must be, who committed the first act of violence; and if they found that it was the defendant, their verdict must be for the plaintiff; but that in such case the injuries sustained by the defendant ought to be considered in mitigation of damages. The counsel for the defendant insisted that the judge should charge the jury, that, though they should believe that the defendant had put his fist in the plaintiff's face, yet if the plaintiff provoked it, and followed it up by unnecessary violence, he |