Jones v. Baker & Westervelt

7 Cow. 444

Opinion

Curia, per Savage, Ch. J.

There is a difference between an action for a conspiracy, upon a writ of conspiracy, and an action on the. case in nature of a conspiracy. The former must be against two or more; the latter may be against one. In the former, if all but one are acquitted, the plaintiff cannot have judgment; for his action fails; but it is otherwise in the latter action. (Com. Dig. Action upon the ease for a Conspiracy, (C. 1.)

*A writ of conspiracy, properly so called, did not lie, at ■the common law, in any case but where the conspiracy was to indict the party either of treason or capital felony, and a -verdict had been rendered in his. favor; and such writ must be brought against two at least. All the other cases of conspiracy in the books, were but actions on the case; though it was usual, in such actions, to charge a conspiracy. Yet, they might be brought against one. (1 Saund. 230, note,(4) Saville v. Roberts, Ld. Raym. 378, 379.) Saville v. Roberts, was an action against one only, for procuring the plaintiff to be indicted of a riot. It was an action on the case; and was held to lie. The case of Subley v. Mott and another, (1 Wils. 210,) was a special action on the case for a malicious prosecution. After verdict against one only, a motion was made in arrest; in answer to which, it was argued, that this was an action on the case .founded on a wrong; where, if any one be found guilty, the plaintiff should have judgment. And of that, opinion was the whole court; and they considered such to be the settled law since the case of Skinner v. Gunton and others, (1 Saund. 230.)

As to actual proof of conspiracy; in Rex v. Cope and others, (1 Str. 144,) the proof was, that the husband, wife and servants, had several times given money to the prosecutor’s apprentices to put. grease into the paste, and thus spoil the .cards. The prosecutor was a card maker. There was no other evidence of communication. The defendants were also card makers; and had, by turns, given the money ; which chief justice Pratt held sufficient evidence of conspiracy.

In this case, I think the judge erred in requiring further evidence of conspiracy. The circumstances shown, were sufficient to justify the finding of one. An actual conspiracy can seldom be proved unless by circumstances.

But if there be no evidence of conspiracy, the plaintiff may recover against one alone, where there is sufficient evidence against him; though not enough against the other. This being an action founded in tort, one defendant *may be found guilty, and the other have a verdict in his favor. The damage here is the gist of the action; not the conspiracy. The plaintiff showed damage; and if it resulted from the wrongful acts of the defendants, or either of them, the plaintiff was entitled to recover.

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The nonsuit should, therefore, be set aside, and a new trial granted.

Buie accordingly.

Sutherland, J., not having heard the argument, gave no opinion.

An action on the case in the nature of a conspiracy, will lie against one; or, if brought against many, all may be acquitted but one. Eason v. Westbrook, 2 Murph. 329.

In an action on the case for a conspiracy against A and B, the plaintiffs, in their declaration, alleged that they and A had been co-partners in trade, and that A had sold out to them his interest in the concern, and that the plaintiffs had agreed to pay all the debts against the firm, and that, after the dissolution, A had conspired with B to defraud them; and for that purpose, A made and delivered to B certain notes in the name of the firm, and antedated them before the dissolution, and delivered them to B, with the “intent” that he should present them for payment, which was afterwards done, and the note paid, the said B representing that the notes were just demands, and given to him at the time of their date, for goods sold by him to the firm. The judge charged the jury, that, “if they found that the notes were fabricated by the defendants after the dissolution of the partnership, with a view to make the defendants chargeable with them, as stated, and B then, in furtherance of the original design, induced the plaintiffs to pay the same, without disclosing the facts in relation to them, it was such a fraud as would entitle the plaintiffs to a verdict.” Held, that there was no error in the charge. Sheple v. Page, 12 Verm. 519.

The gist of the action is the damage to the plaintiff, and the conspiracy. Id.

Where a conspiracy is charged in a declaration between two or more, the acts of one, in pursuance of the conspiracy, are the acts of all, in legal contemplation, and may be alleged, in such case, in the declaration, as the individual acts of the one. Id. '

It was alleged in a declaration that the plaintiff and R were partners, and that the defendant covenanted with them to iurniah them with money tobe used as capital in their partnership business; that the defendant did so furoish money during a certain time, and afterwards, “ maliciously contriving and intending to injure and ruin the plaintiff, and confederating and conspiring with said R to injure and ruin the plaintiff in his business, and to break up said partnership, &c., refused any longer to furnish capital according to his covenant, and brought a suit against said partners, to recover the money furnished to them by him, and recovered judgment against them, and took out execution, and caused their stock in trade to be sold on said execution, at a great sacrifice, to pay the same,” and that said R, in pursuance of said confederacy, had refused to join with the plaintiff, in a suit against the defendant for a breach of said covenant. Held, that the plaintiff, in order to maintain his action, must prove not only that the defendant had broken his covenant, but that he did so with the intent, and pursuant to the confederacy as set forth in the declaration. Talbot v. Cains, 5 Met. 520.

To chargfb persons with a conspiracy to cheat and defraud a third person, there must be a collusion and participation in the scheme or its execution; mere silent observation and acquiescence are not sufficient. Brannock v. Bouldin, 4 Iredell, 61.

In an action on the case, in the nature of a conspiracy, charging that the defendants combined to injure the plaintiff's credit, it is necessary for the plaintiff to aver, in his declaration, the means by which such injury was intended to be effected. Setzar v. Wilson, 4 Iredell, 501.

It is no ground to support such an action, that the defendants, having an execution levied on the plaintiff’s property, required that the sale should be for specie. Id.

Nor can such an action bo maintained upon the ground that the defendants had, by fraud, obtained from the plaintiff the assignment of a judgment, and the transfer of a bond not indorsed. Id.

Nor on the ground that the .defendants had fraudulently procured a conveyance of a slave from the plaintiff. Id. (4 U. S. Dig. pp. 392, 393, tit. Conspiracy.)