6 Watts 304 | Pa. | 1837
The opinion of the Court was delivered by
The action on the case for a conspiracy, has in modern times taken the place of the writ of conspiracy, which seems to be considered as antiquated. The instances of these, suits in our reports, are not very numerous, but sufficient appears to show that an action on the case lies wherever the plaintiff is aggrieved and damnified by unlawful acts, done by the defendants, in pursuance of a combination and conspiracy for that purpose. It is said by Tilghman, C. J., in Griffith v. Ogle, 1 Binn. 174-5, that the conspiracy is the gist of the action, though it is still necessary to show some act done in execution of it. In that case it was held to lie against two defendants for conspiring falsely and maliciously, to accuse the plaintiff before the house of representatives, of extorting illegal fees and endeavouring to procure a person to make affidavit thereof, they knowing the contents to be false. In Mitchell v. Morrison and Penrod, 8 Serg. & Rawle 522, and 2 Penns. Rep. 126, the plaintiff, Mitchell, had obtained judgment against Morrison, and the defendant Penrod had, previously to the judgment, obtained from Morrison his effects, consisting of certificates of turnpike stock, and then had Morrison imprisoned under an execution, on a judgment before a justice of the peace, until he was discharged under the insolvent laws. It was held, that the action on the case for the conspiracy, was maintainable; Rogers. J., says, although Mitchell coi Id not collect his debt by fieri facias and levy, yet satisfaction mi;, ht have been obtained, by compelling Morrison to assign for the benefit of his creditors; there was at least a chance of satisfaction, of which he ought not to be deprived by any fraudulent com
It would seem, that in most of the cases this remedy has been employed for acts in the nature of malicious prosecution, or abuse of legal proceedings; yet I perceive no reason why it should be confined to such cases. Conspiracy comprehends any confederacy to prejudice a third person, as where divers confederate to impoverish a third person; 1 Hawk. P. C. Bk 1 c. 72; or to defraud by agreement among themselves, to accept, indorse and negotiate fictitious bills. I Leach, C. L. 232. It seems clear, that a combination to commit a misdemeanor, or other act, prohibited by law, constitutes this offence. 6 Petersdorf’s Abr. 99. By 13 Eliz. ch. 5, (in force here) all fraudulent gifts, grants, &c., of lands, tenements,
The circumstance that the debt was not payable at the time of the alleged fraud, is not in our opinion, a valid objection. Although it was not then payable, yet it was on the eve of becoming so, and the plaintiff might be as much defeated of his debt by acts done just before he was about to proceed to recover it, as afterwards. The plaintiff’s claim is founded, not so much on his debt being due, as on the injury done to him by the defendant’s sweeping away that property belonging to the debtor, which he might have made available by legal proceedings for recovery of his debt; and if this could be done just before the debt became due, the fraud might be committed with impunity. The question is one of fact for the jury, whether the acts were fraudulently done to defeat the plaintiff of his just debt, and whether he thereby lost the same. Nor is it necessary the designs of the defendants should he levelled at the plaintiff alone; if intended against him and others in the same situation, it is rather an aggravation than an alleviation of the offence.
As to the damages, the measure is stated in Mitchell v. Penrod, 8 Serg. & Rawle 524, to be the value of the property withdrawn from the reach of the plaintiff bjr the assignments, and not the amount of the debt due to the plaintiff, and this appears to be the standard intended by the court below, in the present ease, though the phraseology might have been more distinct. It is not easy to judge what was the property assigned by Tarbox to the plaintiffs and withdrawn, or its value; much was transacted secretly between the parties, and it was for the jury to judge how far it consisted of
Judgment affirmed.