61 P. 948 | Cal. | 1900
The demurrer to the complaint was sustained, and the appeal is taken from the judgment entered thereon. The sufficiency of the complaint is the only question presented on appeal. It is contended on the part of the appellants that the action is for the recovery of damages for a conspiracy between defendants to injure plaintiffs. The case cited and relied upon to support this theory is Dreaux v. Domec,
The language of the opinion is not very clear. There seems to be an ambiguity as to which action reference is made, whether to malicious prosecution or conspiracy. It is stated that the cause of action is complete before acquittal. If in reference to an action for malicious prosecution, it is against all the authorities; and a mere conspiracy, without carrying out the purposes of the conspiracy or perpetrating some wrong, is not the ground for a civil action.
In Saville v. Roberts, 1 Ld. Raym. 378, Chief Justice Holt said: "An action will not lie for the greatest conspiracy imaginable if nothing be put in execution, but if the party be damaged the action will lie, from whence it follows that the damage is the ground of action." And in Herron v. Hughes,
Parker v. Huntington, 2 Gray, 124, was an action to recover damages against the defendants for conspiring together to maliciously prosecute the plaintiff upon a charge of perjury. The question arose as to whether the case was an action for conspiracy or for malicious prosecution. The court used the following language: "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 the statute of 21 Edward I, which gave the form of writs in such cases by using the words `do placito conspirationis ettransgressionis.' But the charge of conspiracy was never deemed essential to an action, and in modern times this form of allegation has fallen into disuse. By the rules of 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 conspiracy to procure a man to be indicted for treason; the other for conspiracy to prosecute a man for felony by which life was put in danger. This form of action, however, has become obsolete in those cases where it was allowed at common law, having been superseded by an action on the case in the nature of a conspiracy, which furnishes an adequate and more liberal remedy for malicious prosecutions of every nature and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. . . . The gist of the action is not the conspiracy, but the damage done to the plaintiff by the acts of the defendants, and that is equally great, whether it be the result of a conspiracy or the act of a single individual. The insertion in the declaration of the averment that the acts were done in pursuance of a conspiracy does not change the nature of the action."
In this case, likewise, the gravamen of the action is the alleged malicious prosecution, and to support such action it must appear that the prosecution complained of was not only malicious but without probable cause, and that such prosecution has terminated. In this case the complaint shows *172
that the prosecution complained of resulted in a judgment in the superior court in favor of the plaintiff therein, that an appeal was taken and such judgment was reversed. By reference to the case in this court (Carpy v. Dowdell,
The demurrer was properly sustained and the judgment is affirmed.
Harrison, J., and Garoutte, J., concurred.