§ 1047. Conspiracy-When Actionable.-A conspiracy is a combination of two or more persons, by concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means.1 Viewed as a crime punishable by indictment, the gist of a conspiracy is the unlawful confederacy to do an unlawful act or a lawful act for an unlawful purpose. And the offense is complete when the confederacy is made. But in the civil law, a conspiracy, no matter how wicked or atrocious its designs, is not actionable unless it results in damage to the party suing.3 The damage, and not the conspiracy, is State v. Mayberry, 48 Me. 218; State v. Rowley, 12 Conn. 101; Smith v. People, 25 Ill. 17; Commonwealth v. Hunt, 4 Met. 111; Alderman v. People, 4 Mich. 414; State v. Burnham, 15 N. H. 396; Hinchman v. Richie, Brightly (Pa.) 143. 'Commonwealth v. Judd, 2 Mass. 337; 3 Am. Dec. 54; Commonwealth . Tibbetts, 2 Mass. 538; Commonwealth v. Warren, 6 Mass. 74; People v. Mather, 4 Wend. 259; 21 Am. Dec. 122; State v. Cawood, 2 Stew. 360; State v. Rickey, 9 N. J. L. 293; State v. Buchanan, 5 Har. & J. 317; 9 Am. Dec. 534; Collins v. Commonwealth, 3 Serg. & R. 220. See also Respublica v. Ross, 2 Yeates, S; Morgan v. Bliss, 2 Mass. 112; Commonwealth v. Hunt, Thach. Crim. Cases (Mass.) 609; People v. Richards, 1 Mich. 216; 51 Am. Dec. 75. Herron v. Hughes, 25 Cal. 555; McHenry v. Sneer, 56 Iowa, 649; Douglass v. Winslow, 52 N. Y. Sup. Ct. 439; Kimball v. Harman, 34 Md. 407; 6 Am. Rep. 340. the gist of the action. An act which if done by one alone constitutes no ground for 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. The quality of the act, and the nature of the injury inflicted by it, must determine the question whether the action will lie. And it is sufficient that damage results from the conspiracy, though the act contemplated was not done. A conspiracy is not actionable unless something is done in pursuance of the conspiracy which without the conspiracy would give a right of action. In an action on the case grounded on an alleged conspiracy by the defendants to injure the plaintiff, he cannot recover unless there is evidence that he sustained actual damage. The fact of conspiracy is simply matter of aggravation, and should be proved in order to entitle the plaintiff to 1 Tappan v. Powers, 2 Hall, 277. 2 Kimball v. Harman, 34 Md. 407; 6 Am. Rep. 340. 3 Patten v. Gurney, 17 Mass. 186; 9 Am. Dec. 141. Jones v. Baker, 7 Cow. 445; Adler v. Fenton, 24 How. 407; Sheple v. Page, 12 Vt. 519; Hutchins v. Hutchins, 7 Hill, 104; Page v. Parker, 40 N. H. 47; 43 N. H. 363; 80 Am. Dec. 172; Place v. Minster, 65 N. Y. 89; Patten v. Gurney, 17 Mass. 186; 9 Am. Dec. 141; Eason v. Petway, 1 Dev. & B. 44; Laverty v. Vanarsdale, 65 Pa. St. 507; Bowen v. Matheson, 14 Allen, 499; Herron v. Hughes, 25 Cal. 555; Parker v. Huntington, 2 Gray, 124; Kimball v. Harman, 34 Md. 407; 6 Am. Rep. 340; Hinchman v. Richie, Brightly (Pa.) 143; Fairbank v. Newton, 50 Wis. 628. As to conspiracy in general, see note to People v. Richards, 51 Am. Dec. 82-94. In Jones v. Baker, 7 Cow. 445, the court said: "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 Case 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. 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, 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, 1 Saund. 230." recover in one action against several. In such an action alleging that the defendants combined and conspired together to defeat the right of plaintiff to receive and possess a certain lot of bedsteads which he had purchased of one of the defendants, he is not entitled to recover damages against such defendant for breach of the contract of sale.2 No action lies by a person against others for conspiring to induce one not to make him a gratuity by will,3 or to induce his debtor to put his property out of his hands,* or to induce another to violate his contract, or by insurance companies, that they will not insure any boat on which a certain person is employed, or against several charged with conspiring together to procure, by perjuring themselves, the plaintiff's conviction of a crime, a nolle prosequi having been entered. A justice of the peace cannot maintain an action against two persons for having maliciously conspired together, by which he was induced to marry one of them, a minor, by reason of which he was subject to a penalty and costs. To conspire maliciously and vexatiously, and without reasonable or probable cause, to commence and actually commencing a suit in the name of a third party against the plaintiff, is not actionable, where no legal damage is alleged." Where A has agreed to sell property to B, C may, at any time before the title has passed, induce A not to let B have the property, and to sell it to himself, provided he be guilty of no fraud or misrepresentation, without incurring any liability to B. In such a case, A alone is liable to B 8 |