Pencavin v. Trapping

1 N.C. 262

Opinion

Doderidge, J.

et al. argued that the place of the procurement ought to be shewn; but he said that here it is not shewn, quia it is no procurement until he be indicted, aliter, in a conspiracy, for if two conspire to indict one, it is no procurement, until he be indicted.

Sed Hyde, C. J. Jones, J. and Whitlock, J. e contra *and adjournatur. Intrat. term P. for they continued opposed to Doderidge, J’s. opinion: quia the indictment is no offence, without a false procurement. Ergo, if two conspire that one should indict, the action lies against both for procurement. [Quære de hoc?]

Banks cited 27 Aff. 44. and Brief 924. that the action lies, although there be no indictment, but not a writ of conspiracy. So conspiracy lies not, if the indictment be bad; but an action on the case lies, although the indictment be reversed, Yet the amercement remains. 8 E. 4. 25, and the costs. 28 H. 8. 2.

Hyde, C. J.

The procurement is the imagination or agreement to indict.