§ 77. Introductory.-The object of this chapter is to discuss a single phase only of the subject of conspiracies. An exhaustive or comprehensive treatment of the law relating to conspiracies would not be germane to the subject of this work. But during the past few years conspiracies in restraint of trade have assumed new and very formidable proportions. Since the rise and phenomenal development of the trade and corporate "trust," the attempt to avoid the dangers of that method by adopting others more limited in their operations, but designed to accomplish the same ends, has become of very common occurrence. The dangerous character of many of these methods has attracted the attention of the courts and of legislators, and where the common law has proved inadequate to the correction of the evil, it has been met by legislative enactments. The United States statute, known as "The Anti-Trust Act," with many acts of similar nature by the various State legislatures, are examples of recent legislation on this subject. These enactments indicate a tendency of the present time and provide remedies for the growing evil. To the application of statutory and equitable rules to business methods, held and treated as conspiracies, the following sections are devoted. § 78. Conspiracy Defined. In general a conspiracy is an agreement between two or more persons to perform an unlawful act. The essential points are two or more persons combined to do an illegal thing. It may be an agreement to do a thing criminal or unlawful, per se, or to do a thing which is, per se, lawful, in an unlawful manner. An agreement to accomplish a lawful end by unlawful means constitutes a conspiracy. In order that a combination should amount to a conspiracy there must be an agreement on the part of the parties to the combination to attempt to do an unlawful act. The crime or the offense is determined by the motive by which the act is prompted. The gist of the offense is in the combination and in the purpose to accomplish a criminal or illegal object. It is the power of combination that renders the purpose dangerous to the public or to an individual, and it is this that constitutes the forming of the plan a conspiracy. At common law the gravamen of the offense is the agreement. An overt act is not essential to the completion of the offense. The unexecuted purpose constitutes the crime. In some cases where the matter is regulated by statute an overt act is essential to the offense, but the legal character of the offense is not changed by the execution of the agreement.' Where the 1 United States v. Walsh, 5 Dill. 60; State v. Norton, 33 N. J. L. 40, 46; Hazen v. Commonwealth, 23 Pa. St. 363, 364; United States v. Martin, 4 Cliff. 160, 162; Wilder v. McKee, 111 Pa. St. 335; Place v. Minster, 65 N. Y. 89, 95; Walker v. Cronin, 107 Mass. 555; Gary v. Frazer, 76 Me. 37; Hutchins v. Hutchins, 7 Hill, 104; Jones v. Baker, 7 Cow. 445; Barker v. Huntingdon, 2 Gray, 124. “A conspiracy at common law consists in the unlawful agreement of two or more persons to compass or promote some criminal or illegal purpose, or in the unlawful agreement to compass or promote a purpose not in itself criminal nor unlawful, by criminal and unlawful means. If the crime consists in the illegal object, the purpose must be clearly offense is of a civil character, exposing the conspirators only to the payment of damages for an injury inflicted, the gist of the wrong is not in the agreement, but in the act by which the injury was effected. The only effect of the con and fully stated in the indictment. When the act is itself illegal there is no occasion to state the means by which the conspiracy was effected. When an indictment charged that the defendant conspired by divers false pretenses, and subtle means and devices, to obtain from another large sums of money, and to cheat and defraud him thereof, it was held that the gist of the offense being the conspiracy, it was quite sufficient to state only that fact and its object, and not set out the specified pretenses." State v. Bartlett, 30 Me. 132, 134. The essence of a conspiracy, so far as it justifies a civil action for damages, is a concert or combination to defraud, or to cause other injury to persons or property, which, because of acts done in pursuance of such conspiracy, actually results in damages to the person or property of the person injured or defrauded. A civil action will not lie for a mere conspiracy. It is the damage done in pursuance of the conspiracy which gives the right of action. It is now well established that, in civil actions, the conspiracy is not the gravamen of the charge, but may be pleaded and proved in aggravation of the wrong of which the plaintiff complains, and as enabling him to recover against all the conspirators, as joint tort-feasors. If a plaintiff fail in the proof of a conspiracy, or concerted design, he may yet recover damages against such of the defendants as are shown to be guilty of a tort, directly resulting in damages to the plaintiff." Doremus v. Hennessey, 62 Ill. App. 391, 402. "It has often been said that a conspiracy to effect an unlawful purpose, or a lawful purpose by unlawful means, is an offense. But this is said to be a limitation rather than a definition. It certainly lacks definiteness. Many acts are said to be unlawful which would not be a subject of a criminal conspiracy. Other acts are unlawful because they are in violation of the criminal law or of some penal statute. If the ends or means are criminal in themselves, or contrary to some penal statute, the conspiracy is clearly an offense. Between these two extremes a great variety of cases may arise, many of which ought not to be regarded as criminal. Suppose two or more boys, for instance, agree to go upon another's land; the proposed act, is, or may be, a trespass, and, therefore, unlawful. If they do not go no harm is done; if they do go they are or may be civilly liable, but no one would seriously contend that in either case they would be liable criminally for conspiracy. But suppose two or more conspire unjustly and wrongfully to deprive another of his liberty or property; then, as we shall hereafter see, the criminal law may take cognizance of the act. Of course, it is difficult if not impossible to define accurately and clearly in advance what would and what would not be an offense. Hence, the difficulty of regulating spiracy in a civil offense is the aggravation of the injury inflicted. In a recent case in New Jersey, the rule was stated by the court, as follows: "It is not necessary to consider the office of the ancient writ of conspiracy, and the process by which, in time, it was superseded by the later and more efficacious action on the case for conspiracy, and the still more modern action for malicious prosecution. Nor will it now be advantageous to show how long and difficult it was to separate the idea of a criminal conspiracy at common law, where the agreement or conspiracy was the gravamen of the offense, from the real complaint in a civil action, that the combination of two or more persons has enabled them to inflict a great wrong on the plaintiff. The combination or conspiracy in the latter case was, therefore, a matter of aggravation or inducement only, of which one or all might be found guilty, while in the former it was essential to show two or more had joined in an agreement to do an unlawful act, or to do a lawful act in an unlawful manner. The distinction is now well established that in civil actions the conspiracy is not the gravamen of the charge, but may be both pleaded and proved as aggravating the wrong of which the plaintiff complains, and enabling him to recover against all as joint tort-feasors. If he fails in the proof of a conspiracy or concerted design, he may still recover damages against such as are shown to be guilty of the tort without such agreement." by statute in all cases the law of criminal conspiracy. But this difficulty is not confined to these cases. There are other offenses at common law that are not defined by any statute. The statute prescribes a penalty for such cases without attempting to define in advance the acts which shall constitute an offense. It is left for the court to determine in each particular case whether it is or is not an offense. * ** If we were to attempt to give a rule applicable to this branch of the subject, we In a recent case in Mary should say that it is a criminal offense for two or more persons, corruptly or maliciously, to confederate and agree together to deprive another of his liberty or property. Such a rule is proximately correct and practically just." State v. Glidden, 55 Conn. 46, 70. 1 Van Horn v. Van Horn, 52 N. J. L. 284, 286. We have not presented for determination in this pleading the vexed question, whether an action will lie against a third person for the malicious land, the court said: "It is a general rule that a conspiracy cannot be made the subject of a civil action unless something is done, which, without the conspiracy, would give a right of action. The damage done is the gist of the action, not the conspiracy. Where the mischief contemplated is accomplished, the conspiracy becomes important, as it may affect the means and measures of redress. The party wronged may look beyond the actual participants in committing the injury and join with them as defendants all who conspired to accomplish it, and the fact of conspiracy may aggravate the wrong; but the simple act of conspiracy does not furnish a substantive ground of action."1 § 79. The Rule in England.-The rule, as established by the recent decisions of the English courts, is somewhat more tolerant of agreements in restraint of trade than the American decisions. In the recent leading case of the Mogul Steamship Company v. McGregor, the defendants, who were firms of shipowners, trading between China and Europe, with a view to obtaining for themselves a monopoly of the homeward tea trade, and thereby keeping up the rate of freight, formed themselves into an association, and offered to such merchants and shippers in China as shipped their tea exclusively in vessels belonging to members of the association a rebate of 5 per cent. on all freights paid by them. The plaintiffs, who were rival shipowners trading between China and Europe, were excluded by the defendants from all the benefits of the association, and, in consequence of such exclusion, sustained damages. It was held that the association, being formed by the defendants with the view of keeping the trade in their own hands, and not with procurement of the breach of a contract, if by such procurement damage was intended to result, and did result, to the plaintiff. Lumley v. Gye, 2 El. & Bl. 216; Brown v. Hall, L. R. 9 Q. B. Div. 333. In the opinion of Mr. Pollock (ubi supra), the difficulties in such cases disappear, or are greatly re duced, when the cause of action is considered as belonging to the class in which malice, in the sense of actual ill will, is a necessary element." Ibid. 1 Robertson v. Parks, 76 Md. 118; S. C., 24 Atl. Rep. 411, 413. See also Kimball v. Harman, 34 Md. 407; Cooley on Torts, 125. |