SECTION II.

Conspiracy in General.

REX v. EDWARDS.

KING'S BENCH. 1724.

[Reported 8 Modern, 320.]

THE defendants were indicted, for that they, per conspirationem inter eos habitam, gave the husband money to marry a poor helpless woman, who was an inhabitant in the parish of B. and incapable of marriage, on purpose to gain a settlement for her in the parish of A. where the man was settled.

It was moved to quash this indictment, because it is no crime to marry a woman and give her a portion; and the justices are not proper judges what woman is capable of a husband, neither have they any jurisdiction in conspiracies.

It was insisted on the other side, that there is a crime set forth in this indictment, which is a conspiracy to charge a parish, &c. and a conspiracy to do a lawful act, if it be for a bad end, is a good foundation for an indictment. An indictment for a conspiracy to charge a man to be the father of a bastard-child, was held good, Temberley v. Child, 1. Sid. 68. s. c. 1 Lev. 62; Rex v. Armstrong, 1 Vent. 304, though fornication is a spiritual offence; because the Court of King's Bench has cognizance of every unlawful act by which damages may So an information for a conspiracy to impoverish the farmers of the excise, was held good.

ensue.

To which it was answered, that those were conspiracies to do unlawful acts; but it was a good act to provide a husband for this woman. THE COURT. The quashing indictments is a discretionary power of the court, but in this case the defendant has not showed anything to induce the court to quash the indictment; and if the matter be doubtful, the defendant must plead or demur; but indictments for conspiracies are never quashed.— A bare conspiracy to do a lawful act to an unlawful end, is a crime, though no act be done in consequence thereof, Reg. v. Best, 2 Ld. Ray. 1167; s. c. 6 Mod. 185; but if the fault in the indictment be plain and apparent, it is quashed for that reason, and the party shall not be put to the trouble to plead or demur. Suppose there is a conspiracy to let lands of ten pounds a year value to a poor man, in order to get him a settlement, or to make a certificate man a parish-officer, or a conspiracy to send a woman big of a bastardchild into another parish to be delivered there, and so to charge that parish with the child; certainly these are crimes indictable. But in this indictment it is not set forth, that the woman was likely to be

chargeable to the parish. As to the objection, that the sessions have no jurisdiction in conspiracy, the contrary is true; they have no jurisdiction in perjury at common law, but by the statute they have; and they have no jurisdiction to indict for forgery, but certainly they have jurisdiction de conspirationibus, Rex v. Rispal, 3 Burr. 1320; and such a person as this defendant is was punished by indictment at common law.1 But in the Trinity Term following judgment was given for the defendant, because it was not averred in the indictment, that the woman was last legally settled in the parish of B., but only that she was an inhabitant there.

THIS was an indictment for a conspiracy, which stated that the defendants unlawfully and wickedly devising and intending to injure, oppress, and aggrieve T. Goodlake, of Letcombe Regis in the county of Berks, Esquire, on the 24th of November, 50th Geo. 3, with force and arms, at East Challow in the county aforesaid, unlawfully and wickedly did conspire, combine, confederate, and agree together, and with divers other persons unknown, to go into a certain preserve for hares at Letcombe Regis aforesaid, in the county aforesaid, belonging to the said T. G., without the leave and against the will and consent of the said T. G., to snare, take, kill, destroy, and carry away the hares in the said preserve then being, and to procure divers bludgeons and other offensive weapons, and to go to the said preserve armed therewith for the purpose of opposing any persons who should endeavor to apprehend or obstruct or prevent them in and from carrying into execution their unlawful and wicked purposes aforesaid; and that the said defendants, in pursuance of and according to the conspiracy, combination, confederacy, and agreement aforesaid, so as aforesaid before had, afterwards, to wit, on the said day, &c., about the hour of 12 in the night of the same day, with force and arms, at East Challow aforesaid, in the county aforesaid, unlawfully and wickedly did procure divers large bludgeons, and other offensive weapons, and did go to the said preserve of the said T. G. armed therewith, for the purpose of opposing any persons who should endeavor to apprehend. obstruct, or prevent them in and from carrying into execution their unlawful and wicked purposes aforesaid. And the said defendants,

1 It is said, s. c. 1 Sess. Cases, 336, that the court left the defendants to demur or plead to it, as they should think fit; and s. c. 1 Stra. 707, that on a demurrer to this indictment. judgment was given for the defendant, because it is not an offence

indictable.

being so armed as aforesaid, in further execution of their unlawful and wicked purposes aforesaid, then and there did set divers, to wit, 100 snares, for the purpose and with the intent to take, kill, destroy, and carry away the hares in the said preserve then being; in contempt of the king and his laws, to the evil example of others, to the great damage of the said T. G., and against the peace, etc.

After a verdict of guilty, it was moved in the last term, by Jervis, to arrest the judgment for the insufficiency of the charge, which was only that of an agreement to commit a mere trespass upon property, and to set snares for hares, and was not an indictable offence, but at most only an injury of a private nature, prohibited sub modo, under a penalty. And 2 Hawk. P. C. c. 25, s. 4, was referred to. Another objection was taken, that the place where the offence was committed was not alleged with sufficient certainty and precision.

Gleed now opposed the rule, and endeavored to sustain the indictment upon the authority of 2 Hawk. P. C. c. 72, s. 2, where it is said that all confederacies whatsoever wrongfully to prejudice a third person are highly criminal at common law; as where several confederate to maintain one another in any matter whether it be true or false. The cases also show that it is equally an offence to combine to do a lawful act by unlawful means, or to an unlawful end, as to do an act in itself unlawful; as in the instance of workmen conspiring together to raise their wages, The King v. The Journeymen Tailors of Cambridge, 8 Mod. 11, or parish officers conspiring to marry a helpless pauper into another parish, to settle her there and rid themselves of her maintenance, The King v. Edwards and Others, 8 Mod. 320. And in all cases of unlawful conspiracy, the mere unlawful agreement to do the act, though it be not afterwards executed, constitutes the offence; according to Rex v. Armstrong and Others, 1 Ventr. 304, and Rex v. Rispal, 3 Burr. 1320, and 1 W. Black. 368. In this latter case the indictment for conspiring to charge a man with a false fact, and exacting money from him under pretence of stifling the charge, was sustained; though the fact imputed, which was merely that of taking hair out of a bag belonging to the defendant Rispal, did not import in itself to be any offence. [LORD EllenborougH, C. J. All the cases in conspiracy proceed upon the ground that the object of the combination is to be effected by some falsity; insomuch that in Tailor and Towlin's case in Godb. 444, it was held necessary in conspiracy to allege the matter to be false et malitiose. By the old law indeed the offence was considered to consist in imposing by combination a false crime upon a person. But are you prepared to show that two unqualified persons going out together by agreement to sport is a public offence?] Modern cases have carried the offence further than some of the old authorities, such as The King v. Eccles and Others, where the defendants were convicted upon a charge of conspiring together by indirect means (not stating what those means were) to prevent a person from carrying on his trade. And in The King v. Spragge and Others, 2

Burr. 993, which charged the defendants with a conspiracy to indict and prosecute W. G. for a crime liable by law to be capitally punished, and that in pursuance of such conspiracy they did afterwards indict him; one of the objections was, that the charge was only of a conspiracy to indict, not of a conspiracy to indict falsely; but it was overruled.

LORD ELLENBOROUGH, C. J. That was a conspiracy to indict another of a capital crime; which no doubt is an offence. And the case of The King v. Eccles and Others was considered as a conspiracy in restraint of trade, and so far a conspiracy to do an unlawful act affecting the public. But I should be sorry that the cases in conspiracy against individuals, which have gone far enough, should be pushed still farther: I should be sorry to have it doubted whether persons agreeing to go and sport upon another's ground, in other words, to commit a civil trespass, should be thereby in peril of an indictment for an offence which would subject them to infamous punishment. PER CURIAM.

Rule absolute.1

REX v. PYWELL.

WESTMINSTER SITTINGS. 1816.

[Reported 1 Starkie, 402.]

THIS was an indictment against the defendants for a conspiracy to cheat and defraud General Maclean, by selling him an unsound horse. It appeared that the defendant Pywell had advertised the sale of horses, undertaking to warrant their soundness. Upon an application by General Maclean at Pywell's stables, Budgery, another of the defendants, stated to him that he had lived with the owner of a horse which was shown to him, and that he knew the horse to be perfectly sound, and as the agent of Pywell, he warranted him to be sound. General Maclean purchased the horse, and took the following receipt:

"Received of Maclean, Esq., the sum of fifty guineas, for a gelding warranted sound, to be returned if not approved of within a week."

1" After the most careful and elaborate consideration of the cases, I am satisfied that Rex v. Turner is not law." LORD CAMPBELL, C. J., in Reg. v. Rowlands, 5 Cox 436, 490. "The King v. Turner, 13 East, 231, to say the least of it, is an odd case. Confederates armed with clubs to beat down opposition, entered a man's preserve in the night to take and carry away his hares; and Lord Ellenborough called this 'an agreement to go and sport on another's ground,' in other words, 'to commit a civil trespass'! It would be a curious thing to know what he would have called an agreement to steal a man's pigs or to rob his henroost. In its mildest aspect, the entry into the preserve with bludgeons was a riot, which, it appears by a note in the second vol ume of Mr. Chitty's Criminal Law, page 506, may be a subject of conspiracy." GIBSON, C. J., in Mifflin v. Com., 5 W. & S. 461, 463. — ED.

It was discovered, very soon after the sale, that the animal was nearly worthless. The prosecutors were proceeding to give evidence of the steps taken to return the gelding, when

LORD ELLENBOROUGH intimated that the case did not assume the shape of a conspiracy; the evidence would not warrant any proceeding beyond that of an action on the warranty, for the breach of a civil cons tract. If this (he said) were to be considered to be an indictable offence, then instead of all the actions which had been brought on warranties, the defendants ought to have been indicted as cheats. And that no indictment in a case like this could be maintained, without evidence of concert between the parties to effectuate a fraud.

The defendants were accordingly acquitted.

The Attorney-General and Andrews for the prosecution.
Nolan and Spankie for the defendants.

Indictment, amongst other counts, that the prisoner had unlawfully conspired with one Joseph Warburton and one W. H. Pepys, by divers subtle means and devices, to cheat and defraud the prosecutor, S. C. Lister.

At the trial at the summer assizes, in 1870, for the West Riding of Yorkshire, at Leeds, it was found that the prisoner and Lister were in 1864 in partnership, and carried on a part of the partnership business at Urbigau, in Saxony, by there selling patent machines; that the prisoner had given notice according to the terms of the partnership agreement for a dissolution of the partnership between himself and Lister; and that upon such dissolution an account was to be taken according to the partnership agreement of the partnership property, and that according to it such property would be divided on such dissolution in certain proportions between the prisoner and Lister after payment of partnership liabilities; and that the prisoner, in order to cheat Lister, had agreed with his brother, Joseph Warburton, who managed the partnership business at Urbigau, and with Pepys, who resided at Cologne, to make it appear by documents, purporting to have passed between Pepys and Joseph Warburton, and by entries in the partnership books or accounts, made under the superintendence of Joseph Warburton, that Pepys was a creditor of the firm for moneys advanced; and that, by reason of such documents and entries, certain partnership property was to be withdrawn and to be handed to Pepys or otherwise