It must also be kept in mind that merely because plaintiff has located near an existing nuisance will be no defense, for the ancient doctrine 114 denying recovery in cases of "coming to a nuisance" has been exploded.115

Boiling Spring Bleaching Co., 14 N. J. Eq. 335; Jones v. Crow, 32 Pa. 398; Murgatroyd v. Robinson, 7 El. & B. 391.

114 Bl. Comm. book 2, p. 403.

115 Hurlbut v. McKone, 55 Conn. 31, 10 Atl. 164, 3 Am. St. Rep. 17; Susquehanna Fertilizer Co. of Baltimore v. Malone, 73 Md. 268, 20 Atl. 900, 9 L. R. A. 737, 25 Am. St. Rep. 595; People v. Detroit White Lead Works, 82 Mich. 471, 46 N. W. 735, 9 L. R. A. 722; Campbell v. Seaman, 63 N. Y. 568, 20 Am. Rep. 567.

CHAPTER XXI

CONSPIRACY

118. Definition.

DEFINED

118. A conspiracy may be roughly described as a combination of two or more persons to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful means, followed by conduct pursuant thereto, whereby damage results.1

"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for a conspiracy to prosecute a man for felony, by which life was put in danger."2 Later we find this form of action superseded by an action on the case in the nature of a conspiracy. It became the practice to treat the specific wrong, whether malicious prosecution or other tort, as the gist of the ac

1 This is not intended as a definition. It has been truly said that "what a conspiracy precisely is no one knows. Its definition is always question begging, and the only intelligible meaning of it seems to be that there is an indefinite class of offenses which become conspiracies because several unite in their execution and so render opposition by an individual more difficult." 8 Harvard Law Review, 228. Perhaps the following (taken from Eddy on Combinations, § 171) comes nearest to accuracy: "Conspiracy is the combination of two or more persons to do (a) something that is unlawful, oppressive, or immoral; or (b) something that is not unlawful, oppressive, or immoral by unlawful, oppressive or immoral means; (c) something that is unlawful, oppressive, or immoral by unlawful, oppressive, or immoral means." This broad definition, as the author states, "is made necessary in view of numerous decisions wherein combinations have been held illegal, neither the object nor the means of which were contrary to law, but were simply oppressive."

2 Parker v. Huntington, 2 Gray (Mass.) 124, 127, per Bigelow, J.; Van Horn v. Van Horn, 56 N. J. Law, 318, 28 Atl. 669.

3

tion. The charge of conspiracy was regarded as surplusage. If established, however, it was not without effect. It might serve to aggravate the wrong; it might extend liability beyond the active participants, since the conspirators became joint wrongdoers; lastly, it might extend the range of evidence, since, after a foundation has been laid by establishing prima facie the fact of conspiracy, the acts and declarations of each conspirator in pursuance of the original plan and with reference to the common object are evidence against all. It follows: First. That there must have been an act committed which of itself gave a cause of action." "The gist of the action is not the conspiracy charged, but the tort working damage to the plaintiff." 7 Second. A verdict might be rendered in favor of one defendant and

3 See Hansen v. Nicoll, 40 App. D. C. 228, 236, Ann. Cas. 1914C, 759; Van Horn v. Van Horn, 52 N. J. Law, 284, 286, 20 Atl. 485, 10 L. R. A. 184; Verplanck v. Van Buren, 76 N. Y. 247, 259, 260; Lee v. Kendall, 56 Hun, 610, 614, 11 N. Y. Supp. 131, 32 N. Y. St. Rep. 165; Porter v. Mack & Boren, 50 W. Va. 581, 585, 40 S. E. 459.

4 "A conspiracy may, when accompanied by an overt act, create a liability, by reason of the fact that one or more conspirators may do an unlawful act which causes damage to another, by which all those engaged in the conspiracy for the accomplishment of the purpose for which the injury was done, and which was done in pursuance of the conspiracy, would be alike liable, whether actively engaged in causing the loss or not." Doremus v. Hennessy, 176 Ill. 608, 614, 52 N. E. 924, 43 L. R. A. 797, 68 Am. St. Rep. 203, per Phillips, J. In accord, Woodruff v. Hughes (1907) 2 Ga. App. 361, 58 S. E. 551, 553; New England Foundation Co. v. Reed, 209 Mass. 556, 560, 95 N. E. 935; Cohen v. Nathaniel Fisher & Co., 135 App. Div. 238, 240, 120 N. Y. Supp. 546. For joint wrongdoers, see supra, p. 229 et seq.

5 Zellerbach v. Allenberg, 99 Cal. 57, 33 Pac. 786; Taylor County v. Standley, 79 Iowa, 666, 44 N. W. 911; Brinkley v. Platt, 40 Md. 529; Weil Bros. & Co. v. Cohn, 4 Pa. Super. Ct. 443; Schultz v. Frankfort Marine, Accident & Plate Glass Ins. Co., 151 Wis. 537, 139 N. W. 386, 43 L. R. A. (N. S.) 520.

6 Beechley v. Mulville, 102 Iowa, 602, 70 N. W. 107, 71 N. W. 428, 63 Am. St. Rep. 479; Delz v. Winfree, 80 Tex. 400, 16 S. W. 111, 26 Am. St. Rep. 755; Wills v. Central Ice & Cold Storage Co. (1905) 39 Tex. Civ. App. 483, 88 S. W. 265. Cf. Brewster v. Miller's Sons Co., 101 Ky. 368, 41 S. W. 301, 38 L. R. A. 505; Robertson v. Parks, 76 Md. 118, 24 Atl. 411.

7 James v. Evans, 149 Fed. 136, 140, 80 C. C. A. 240, per Bradford, J. In accord, Garing v. Fraser, 76 Me. 37; City of Boston v. Sim

8

against the other. This marked the difference between conspiracy the crime, and conspiracy the tort. To constitute the former, no overt act was necessary; the combination itself was the offense. Furthermore, though "indictments for conspiracy are not to all intents joint, for, where more than two are charged, some may be acquitted and the conviction of the rest, if two, will be good," yet they are "strictly joint so far as respects the constitution of the offense by two. And if it appear in the record in any manner that two did not participate in the unlawful intent, all are discharged, because neither is guilty of that offense." 10

Assuming for the moment that there must be a cause of action independent of the conspiracy in order to give rise to an action in tort, it becomes evident that the accomplish

mons, 150 Mass. 461, 23 N. E. 210, 15 Am. St. Rep. 230, 6 L. R. A. 629; Laverty v. Vanarsdale, 65 Pa. 507. Cf. Savill v. Roberts, 1 Ld. Raym. 374, 378.

8 Van Horn v. Van Horn, 56 N. J. Law, 318, 28 Atl. 669; Jones v. Baker, 7 Cow. (N. Y.) 445; Laverty v. Vanarsdale, 65 Pa. 507; Ratcliffe v. Walker (1915) 117 Va. 569, 85 S. E. 575; James v. Evans, 149 Fed. 136, 80 C. C. A. 240; Skinner v. Gunton, 1 Wms. Saund. 228. • Smith v. State (1913) 8 Ala. App. 187, 62 South. 575; State v. Loser, 132 Iowa, 419, 104 N. W. 337; Com. v. Eastman, 55 Mass. (1 Cush.) 189, 48 Am. Dec. 596; People v. Watson, 75 Mich. 582, 42 N. W. 1005; State v. True Nell, 79 Mo. App. 243. This in some states has been modified by statute. See Pen. Code Cal. § 184; People v. Johnson (1913) 22 Cal. App. 362, 134 Pac. 339; 2 Comp. St. N. J. 1910 (Crimes Act) p. 1757, § 37; Wood v. State, 47 N. J. Law, 461, 1 Atl. 509; Penal Law N. Y. (Consol. Laws, c. 40) §§ 580-583; People v. Flack, 125 N. Y. 324, 26 N. E. 267, 11 L. R. A. 807; Stat. Wis. (1898) § 4568; State ex rel. Durner v. Hoyt, 110 Wis. 189, 85 N. W. 1046, 62 L. R. A. 700; Rev. St. U. S. § 5440, Cr. Code U. S. (Act March 4, 1909, c. 321) § 37, 35 Stat. 1096 (U. S. Comp. St. 1913, § 10201); Hyde v. Shine, 199 U. S. 62, 25 Sup. Ct. 760, 50 L. Ed. 90.

10 State v. Tom, 13 N. C. 569, 578, per Ruffin, J. In accord, People v. Hamilton, 165 App. Div. 546, 151 N. Y. Supp. 125. So as to a nol. pros. entered as to one. State v. Jackson, 7 S. C. 283, 24 Am. Rep. 476. But if two are charged as conspiring with persons unknown, and the jury are satisfied that, though the defendants may not have conspired together, yet one of them did with some third unnamed and unknown person, the defendant so conspiring may be found guilty. Com. v. Edwards, 135 Pa. 475, 19 Atl. 1064; United States v. Hamilton, 26 Fed. Cas. No. 15,288.

ment of an unlawful purpose,11 or the use of unlawful means,12 will give rise to a cause of action. This is unquestioned. But the principle has been deduced that an act which might lawfully be done by one cannot be actionable if done by several.13 Some cases of interference with contractual rights have been decided on this ground.1 It has already been pointed out that the courts there failed to attach proper importance to the power of numbers and concert. In labor controversies, where the question has chiefly arisen, there is a strong tendency to break away from what has sometimes been said to be the established doctrine.

Is it therefore quite accurate to say that there can be no such tort as conspiracy? 15 It would seem that there are many acts which may be harmful only when done by conspirators. The "combination has a power in its confederated form which no individual action can confer." 16 For instance, for a single individual to express his disapproval of an actor by hissing might not be unlawful, but it would seem clearly actionable for a number to hiss pur

11 Newton Co. v. Erickson, 70 Misc. Rep. 291, 126 N. Y. Supp. 949; Hutton v. Watters, 132 Tenn. 527, 179 S. W. 134, L. R. A. 1916B, 1238, Ann. Cas. 1916C, 433; Martens v. Reilly, 109 Wis. 464, 84 N. W. 840; White v. White (1907) 132 Wis. 121, 111 N. W. 1116.

12 Wickersham v. Johnson, 51 Mo. 313; Van Horn v. Van Horn, 52 N. J. Law, 284, 20 Atl. 485, 10 L. R. A. 184. Cf. Karges Furniture Co. v. Amalgamated Woodworkers' Local Union No. 131, 165 Ind. 421, 75 N. E. 877, 2 L. R. A. (N. S.) 788, 6 Ann. Cas. 829; Sherry v. Perkins, 147 Mass. 212, 17 N. E. 307, 9 Am. St. Rep. 689; O'Callaghan v. Cronan, 121 Mass. 114. And see generally "Interference with Contractual Rights," supra, p. 424 et seq.

13 Rowan v. Butler (1908) 171 Ind. 28, 85 N. E. 714; Kimball v. Harman, 34 Md. 407, 6 Am. Rep. 340; City of Boston v. Simmons, 150 Mass. 461, 23 N. E. 210, 6 L. R. A. 629, 15 Am. St. Rep. 230; Bohn Mfg. Co. v. Hollis, 54 Minn, 223, 55 N. W. 1119, 21 L. R. A. 337, 40 Am. St. Rep. 319; Hunt v. Simonds, 19 Mo. 583.

14 See chapter XVI, supra, p. 424 et seq.

15 Cf. Jones v. Monson, 137 Wis. 478, 484, 119 N. W. 179, 129 Am. St. Rep. 1082.

16 Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 173, 186, 8 Am. Rep. 159. Cf. Cornellier v. Haverhill Shoe Mfrs'. Ass'n (1915) 221 Mass. 554, 109 N. E. 643, L. R. A. 1916C, 218; State v. Dalton & Fay, 134 Mo. App. 517, 114 S. W. 1132.