Parker v. Huntington

Bigelow, J.

The demurrer - to the plaintiff’s declaration in this case is special, being intended to conform to the provisions of the practice act, St. 1852, c. 312, §§ 17, 20, 21. Unless there- " fore it can be sustained for the causes specifically assigned, it cannot avail the defendants.

Upon reference to these causes, it is manifest that the demurrer proceeds solely on the ground, that the present action, as set out in the plaintiff’s declaration, is an action of conspiracy, the gist of which is the unlawful combination or agreement of the defendants to do an act unlawful in itself, or to do a lawful act by unlawful means. These constitute the very substance and essence of a conspiracy, defined and understood in its strictest sense as a criminal offence at common law. The demurrer to the declaration, on the ground that it does not set out an agreement to do any act in itself unlawful, or any act, lawful in itself, by unlawful means, therefore raises the precise question, whether it is necessary for the plaintiff, in order to maintain an action against the defendants for the cause set out in the declaration, to aver and prove a conspiracy on the part of the defendants, within the technical meaning of that word.

By the ancient forms of pleading, all actions for malicious prosecution, where two or more were made defendants, were laid with a charge of conspiracy. This practice is supposed to have had its origin in the phraseology of St. 21 Edw. I., which *127 gave the form of writs in such cases by using the words de plácito conspirationis et trcmsgressionis. 1 Saund. 230, note. But the charge of conspiracy was never deemed essential to the action; and in modern times this form of allegation has fallen into entire, disuse. By the rules of the common law, an action of conspiracy, or to use an equivalent expression, a writ of conspiracy, was never allowed but in two cases; one for conspiring to procure a man to be indicted for treason; the other for a conspiracy to prosecute a man for felony by which life was put in danger. And in these cases, the action was confined within very narrow limits, and would lie only when a party was acquitted by a verdict, such as would enable him to plead autrefois acquit, if again indicted for the same crime. 2 Selw. N. P. (11th ed.) 1062. This form of action has however become obsolete in those cases where it was allowed at common law, having been superseded by the action on the case in the nature of a conspiracy, which furnishes an adequate and more liberal remedy for malicious prosecutions of every nature and description. Savile v. Roberts, 1 Ld. Raym. 374. 1 Saund. 230, note. Jones v. Baker, 7 Cow. 445 .

The present action, not being for a malicious prosecution for treason or for a felony whereby life was endangered, can in no sense be regarded as an action for conspiracy. It is simply an action on the case. The charge of conspiracy is mere surplusage, intended and used as matter of aggravation, and therefore not necessary to be alleged or proved. The gist of the action is not the conspiracy; but the damage done to the plaintiff by the acts of the defendants; and this is equally great, whether it be the result of a conspiracy, or of the act of a single individual. The insertion, in the declaration, of the averment, that the acts done were in pursuance of a conspiracy, does not change the nature of the action; it is nevertheless an action on the case, and is to be tried and determined upon the well settled rules applicable to that form of action.

Upon this ground it was early held, that if an action be brought against two defendants for procuring a man to be indicted for an offence, which'was neither treason, nor felony *128 by w.fich life was put in danger, though the word conspiravenmi be in the writ, yet if one be acquitted, the other may be found guilty. Savile v. Roberts, 1 Ld. Raym. 379. 1 Saund. 230, note. Subley v. Mott, 1 Wils. 210. Com. Dig. Action upon the case. for conspiracy, C. 1. These decisions proceeded on the ground, that the action was founded on a tort, and was therefore maintainable against one only, as well as against several, for the damage occasioned by the wrongful act.

It was not necessary therefore for the plaintiff in the present action to aver a conspiracy on the part of the defendants or to allege an agreement on their part to do any act in itself unlawful, or any act lawful in itself, but effected by unlawful means. These averments are immaterial, and not essential to the maintenance of the action. The plaintiff can maintain his case by proof of a malicious prosecution by both or either of the defendants. Payson v. Caswell, 22 Maine, 226. Dunlap v. Glidden, 31 Maine, 435. Jones v. Baker, 7 Cow. 445 .

It necessarily follows from these principles and authorities, that the present action must depend upon the well settled rules applicable to actions on the case for a malicious prosecution; and the plaintiff must show in its support a sufficient and proper ending of the indictment against him, and a want of probable cause.

As the demurrer was special, and the causes assigned did not go to the entire declaration, we have not carefully considered whether it sets out a good cause of action, although we are inclined to the opinion that the averments bring it within previous decisions of this court, by which it has been held, that an action for malicious prosecution cannot be sustained upon facts similar to those stated in the plaintiff’s declaration. Bacon v. Towne, 4 Cush. 217 . Parker v. Farley, 10 Cush. 279 .

The declaration not being insufficient for the cause set out in the demurrer, the entry must be Demurrer overruled.