and G. to be appealed of the death of E. F., her late husband, before J. and his companions, lately our justices, to hear and determine that appeal, and him to be taken and imprisoned upon that occasion, and to be detained in our prison of Lincoln until he was acquitted thereof before our aforesaid justices, according to the law and custom of our realm," &c.

It will be observed that the substance of the writ was that the plaintiff had been falsely and maliciously appealed or indicted, and had been acquitted, or, in the case of an appeal without indictment, nonsuited. No allegation is made in any of the writs of "want of reasonable and probable cause." This allegation appears to be of modern origin. See ante, p. 195.

Hist. Eng. Law, p. 160, note, Finl. ed.

We are therefore justified in inferring that actions for injuries from fraudlent combinations and conspiracies, whether by false prosecutions or otherwise, have been maintainable from the earliest times.

Modern Doctrines. - In modern times we have broken away from the old writ of conspiracy, as it was properly used, and it would no longer be considered as fatal to the plaintiff's case, in an action of conspiracy against several for falsely and maliciously indicting him of a felony, that all but one should be acquitted. The proceeding would doubtless be regarded as in substance an action for a malicious prosecution; and the plaintiff would be entitled to recover accordingly. A fortiori, if but one were sued for conspiracy. Savile v. Roberts, 1 Ld. Raym. 374; s. c. 12 Mod. 208; 1 Salk. 13. See note on Malicious Prosecution, ante, p. 191.

The old writ of conspiracy lay only in cases of false trials of the plaintiff, as appears from the statutes above mentioned, and from the absence of writs of this kind not founded upon the statutes. But it is not to be inferred that confederacies to injure a person in other ways were not actionable. There is a case in the Year-Books, 16 Edw. 2, p. 492, of the Prior of Coventry, who brought a writ of trespass a distinct writ from the earliest times against John de Nevill and many others, for a confederacy and riotous assembly, by which they beat him and his servants, and carried off his goods. It was objected, that the thing was an offence against the crown, so that the action belonged only to the king; but Herle, J., said that the plaintiff only mentioned the riot as matter to aggravate the fine to the king, and that he relied upon the trespass to himself, and for that he should recover damages. And though the king could pardon the fine, he could not the damages. See 2 Reeves's

"as

The effect of the principal case is, that the fact of conspiracy becomes actionable only when the act would be a ground of suit if done by a single person; and so it has been elsewhere held. Kimball v. Harman, 34 Md. 407. "It is clear," say the court in this case, well upon the authority of other cases as that of Savile v. Roberts [1 Ld. Raym. 374], that an act which, if done by one alone, constitutes no ground of an action on the case cannot be made the ground of such action by alleging it to have been done by and through a conspiracy of several." For which the court cite the principal case and Wellington v. Small, 3 Cush. 145; Adler v. Fenton, 24 How. 407; Cotterell v. Jones, 11 Com. B. 713. And, e converso, if the act is unlawful when committed by one, it will be unlawful when

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.