sense of being a tort. On the other hand, a conspiracy to commit a fraud may be indictable though the fraud is not in itself indictable. In the case of R. v. Warburton, the defendant and another person conspired to defraud the defendant's partner of partnership property under such circumstances that the fraud was perhaps not criminal in itself. Cockburn, C. J., in delivering the judgment of (L. R., 1 C. C. R. 273-7) the Court for Crown Cases Reserved, said, "It is sufficient to constitute a conspiracy if two or more persons combine by fraud and false pretences to injure another. It is not necessary in order to constitute a conspiracy that the acts agreed to be done should be acts which if done would be criminal. It is enough if the acts agreed to be done, although not criminal, are wrongful, i. e., amount to a civil wrong." The generality of these expressions must probably be confined by reference to the particular class of civil wrongs under consideration, namely, "civil wrongs by fraud and false pretences."

Another remarkable circumstance connected with the law of conspiracy is, that it renders it possible by a sort of fiction to convert an act innocent in itself into a crime by charging it in the indictment as an overt act of a conspiracy of which there is no other evidence than the act itself. In other words, if the jury choose to impute bad motives to an act prima facie innocent, they can convict those who combine to do it of conspiracy. Upon an indictment of this sort, Rolfe, B., made the following observations: "What the prosecutors of this indictment have done is this, they have not proceeded under the statute (6 Geo. 4, c. 129, repealed) to indict the parties for the alleged illegal act, but they undertake to show that there was a general combination amongst them all to effect these illegal acts, and for that it is they have indicted them. That is a legal course to pursue, and being legal, I shall not now step out of the path of my duty by speculating upon the policy that has been adopted in this case. It would be, however, much more satisfactory to my mind, if the parties were indicted for that which they have directly done, and not for having previously conspired to do something, the having done which is the proof of the conspiracy. It never is satisfactory, although undoubtedly it is legal." R. v. Selsby, 5 Cox, C. C. 495. So where persons were indicted for a conspiracy to commit an unnatural offence, upon evidence which, though weak, tended, as far as it went, to show the actual commission of the offence, Cockburn, C. J., referring to the language of Rolfe, B., said: "I am clearly of opinion that where the proof intended to be submitted to a jury is proof of the actual commission of crime, it is not the proper course to charge the parties with conspiring to commit it, for that course operates, it is manifest, unfairly and unjustly against the parties accused; the prosecutors are thus enabled to combine in one indictment a variety of offences, which if treated individually, as they ought to be, would exclude the possibility of giving evidence against one defendant to the prejudice of others, and deprive defendants of the advantage of calling their co-defendants as witnesses." R. v. Boulton, 12 Cox, C. C. at p. 93. It is one of the objections to making crimes of mere in

tentions or private agreements, of which explicit evidence is seldom to be had, that such definitions usually involve this inconvenience. Thus the gist of the crime of high treason is compassing and *imagining the king's death, but the most indifferent overt act [*426 may be treason, if the jury choose to impute to it such а motive. Thus the overt act of treason for which Lord Preston and others were convicted and sentenced to death was hiring a boat at Surrey Stairs, 12 How. St. Tr. 727. Nor need there be any overt act at all in the ordinary sense, the mere conspiracy being an agreement and therefore an overt act. Mulcahy v. Reg. infra; and see Heymann v. The Queen, 12 Cox, C. C. 303; L. R., 8 Q. B. 102.

There is another point connected with the law of conspiracy, which is involved in great obscurity: namely, whether any one of the parties must have proceeded to the commission of some act in furtherance of the conspiracy, or, as it is usually called, some overt

act.

The authorities seem to stand thus. In the Poulterers' Case, 9 Co. 55 b., Lord Coke says that, "a man shall have a writ of conspiracy, although they do nothing but conspire together, and he shall recover damages, and they may also be indicted thereof." (p. 56 b.) In the next page he mentions, as the first incident of the crime of conspiracy (or, as he calls it, confederacy), that, "it ought to be declared by some manner of prosecution, as in this case it was, either by making of bonds, or of promises one to the other." In R. v. Best, 2 Ld. Raym. 1167, it is said in the marginal note that "an illegal conspiracy is indictable, though nothing is done in pursuance of it." This was so contended by counsel in that case, but from the indictment it does not appear that any such contention was necessary, and the judgment is silent on the point.

In R. v. Kinnersley Str. 193, which is frequently referred to as an authority that no overt act need be proved, no such point arose. All that was there decided was that no overt act need be laid in the indictment, as is now well settled. So also in the case of R. v. Spragg, 2 Burr. 993, Lord Mansfield expressly reserves his opinion on the subject now under consideration, pointing out that it was not necessary for the decision of that case. And in Mulcahy v. Reg., L. R., 3 H. L. 306, it was laid down that the agreement of two or more persons is an act in advancement of the intention which each has conceived in his mind.

The practical importance of this difficulty is lessened by the fact that the existence of the conspiracy until revealed by some overt act is rarely known, and it therefore seldom becomes, under such circumstances, the subject of the indictment.

Of course an overt act committed by any one of the conspirators would be sufficient, for on the general principles of agency as applied to criminal law, such an act would be the act of all.

It was said by Lord Ellenborough that a mere agreement to commit a civil trespass would not be the subject of indictment. R. v. Turner, 13 East, 228. But this decision is not at all borne out by the

definitions above referred to; and in R. v. Rowlands, 17 Q. B. 686, 79 E. C. L., Lord Campbell said, "I have looked most elaborately into all the authorities which were cited, and as to Turner's case I have no doubt whatever that it was wrongly decided." In Turner's case the agreement was to go and take hares by night in a preserve, armed with offensive weapons; which was rather a strong one to hold to be a mere civil trespass. The same learned judge held that a conspiracy to hiss an actor or damn a play would be indictable. Clifford v. Brandon, 2 Camp. 358; 6 T. R. 628. So a conspiracy to impoverish A. B., a *427] *tailor, and to prevent him carrying on his trade, has been held to be indictable. R. v. Eccles, 1 Lea. 274; 3 Dougl. 337. In R. v. Carlisle, Dears. C. C. 337; 23 L. J., M. C. 109, S. sold a mare to B. for 391., and before the price was paid, B. and C. conspired together falsely and fraudulently to represent to S. that the mare was unsound, in order to induce S. to accept 277. instead of the agreed price of 391.; and it was held that this was indictable as a conspiracy. So it has been held to be indictable to conspire to raise the price of funds by spreading false reports; R. v. De Berenger, 3 M. & S. 67; or of any vendible commodity; R. v. Aspinall and others, infra, Blackburn, J., and Brett, J. A.; to conspire to raise a false claim to property by contracting a marriage; R. v. Robinson, 1 Lea. 44; and to conspire to induce persons to take shares in a new company, to which was to be transferred the business of an old company known to the conspirators to be hopelessly insolvent and worthless, with a view of defrauding and cheating the persons so taking and paying for their shares of the price which they would have to pay. R. v. Gurney and others, 11 Cox, C. C. 439-40.1

An indictment charged the defendants in a second count with having conspired in order to obtain a quotation of shares in the Stock Exchange List, to induce persons who should thereafter buy and sell shares to believe that the company was duly formed and constituted, and had complied with the rules of the Stock Exchange, so as to en

1 A conspiracy to manufacture a base material in the form and color of genuine indigo, with intent to sell it as genuine, is indictable. Commonwealth v. Judd et al., 2 Mass. 329; S. C. 2 Wheel. C. C. 293. So a conspiracy between persons in falsely pretending they were about to enter in business, whereby they obtained goods on credit, when the intention was to procure the goods, sell them at an under price, and leave the Commonwealth, is indictable. Commonwealth v. Ward, 2 Mass. 473. [A conspiracy to defraud the government of revenue is indictable. United States v. Rindskoff, 6 Biss. 259; United States v. Babcock, 3 Dill, 581. For conspiracy to import goods without duty. United States v. Graff, 14 Blatchf. 381.] But it has been held not an indictable offence for several persons to conspire to obtain money from a bank, by drawing their checks on the bank when they have no funds there. State v. Richie, 4 Halst. 223. To constitute the offence of conspiracy, there must be a conspiracy to cheat and defraud some person of his property. Although there may have been an intention to defraud, yet if the means used could not possibly have that effect, the offence is not complete. March v. People, 7 Barb. 391. The obtaining possession of goods under the pretence of paying cash for them on delivery, the buyer knowing that he has no funds to pay with, and appropriating the goods to his own use, in fraud of the seller, is such a fraud or cheat as may be the subject of a conspiracy. Commonwealth v. Eastman, 1 Cush. 189. To constitute the crime of conspiracy, it is not necessary that the conspirators should succeed. State v. Norton, 3 Zab. 33; People v. Chase, 16 Barb. 495. * S.

title the company to have their shares quoted in the official list. The Court of Queen's Bench held the count was good, although there was no averment that the object sought was to injure persons by inducing them to deal in the shares of the company. Cockburn, C. J., and Blackburn, J., intimated it would have been more prudent to have added some such averment, so as to make the offence more distinct, but held that the object of the conspiracy could be sufficiently inferred by the prior averments of the indictment. The judgment of the Queen's Bench was affirmed in the Court of Appeal, the Court further holding the insufficiency of the indictment to be cured by the verdict. R. v. Aspinall, 1 Q. B. D. 730; 45 L. J., M. C. 129; on appeal, L. R. 2 Ap. Ca. 48; 46 L. J., M. C. 145.

In R. v. Pywell, 1 Stark. N. P. C. 402, it was held by Lord Ellenborough, that an agreement between two persons to give a false warranty to the purchaser of a horse was not the subject of an indictment for conspiracy; but in R. v. Kenrick, 5 Q. B. 49, 48 E. C. L., where the conspiracy proved was to make a false representation that horses were the property of a private person, and not of a horse-dealer, and thereby induce F. to buy them, the conviction was affirmed. This case apparently overrules R. v. Pywell. See R. v. Orman, 14 Cox, C. C. 381, post, p. 435.

A conspiracy to charge an innocent person with an offence is indictable; R. v. Best, 2 Ld. Raym. 1167; 1 Salk. 174; 3 Russ. Cri. 111, 5th ed., and it is immaterial whether the charge be true or false, successful or unsuccessful, if any of the means resorted to be unlawful; Hawk. P. C. b. 1, c. 72, ss. 3, 4; R. v. Hollingberry, 4 B. & C. 329, 10 E. C. L. But several persons may combine together to carry on a prosecution in a legal manner; Hawk. P. C. b. 1, c. 72, s. 7; 3 Russ. Cri. 112, 5th ed.; R. v. Murray, Matth. Dig. Cr. L. 90.

Any conspiracy to pervert the course of justice is, of course, indictable. Hawk. P. C. b. 1, c. 21, s. 15; Bushell v. Barrett, Ry. & M. 434; 1 Saund. 300; R. v. Jolliffe, 4 T. R. 285; R. v. Thompson, 16 *Q. B. 832, 71 E. C. L.; 20 L. J., M. C. 183; R. v. Mac

daniel, 1 Lea. 45; Fost. 130; R. v. Mabey, 6 T. R. Mabey, 6 T. R. 619; Cla- [*428

ridge v. Hoare, 14 Ves. 65, or by abuse of legal process to enforce payment of money which was known to be not due. R. v. Taylor, 15 Cox, C. C. 265, 268.

There are numerous instances in the books of conspiracies against morality and public decency held indictable; such as a conspiracy to seduce a young woman; R. v. Lord Grey, 3 St. Tr. 519; 1 East, P. C. 460; or to procure an infant female to have illicit carnal connection with a man; R. v. Mears, 2 Den. C. C. R. 79; 20 L. J., M. C. 59; or to procure a girl, whether chaste or unchaste, to become a common prostitute; R. v. Howell and Bentley, 4 F. & F. 160.1 So a conspiracy to take away a young woman, an heiress, from the custody of her friends, for the purpose of marrying her to one of the conspirators.

1 Under the Iowa code seduction is a felony. An indictment charging a conspiracy to commit seduction need not charge that the woman was unmarried and of previous chaste character. State v. Savoye, 48 Ia. 562.

R. v. Wakefield, 2 Lewin, C. C. 1, 279; 1 Deac. Dig. C. C. 4. A conspiracy to prevent the burial of a corpse, though for the purposes of dissection, has been held to be an indictable offence. R. v. Young, cited 2 T. R. 734; 2 Chit. C. L. 36. Vide post, tit. "Dead Bodies."1

There has been some discussion about conspiracies to marry paupers. Of course these are indictable if any unlawful means be used. But it has been attempted to carry the matter further, and to hold that the conspiracy to persuade paupers to marry by their own consent was itself indictable, as being an injury to the inhabitants of the parish on whom the burden of supporting the woman was thereby thrown. But this notion is now completely exploded. In a case of this kind, Buller, J., directed an acquittal, holding it necessary in support of such an indictment, to show that the defendant had made use of some violence, threat, or contrivance, or used some sinister means to procure the marriage, without the voluntary consent or inclination of the parties themselves; that the act of marriage being in itself lawful, a conspiracy to procure it could only amount to a crime by the practice of some undue means; and this, he said, had been several times ruled by different judges; R. v. Fowler, 1 East, P. C. 461; and the same has been determined in a recent case; R. v. Seward, 1 Ad. & Ell. 706, 28 E. C. L.; 3 Nev. & M. 557. Where it is stated to have been by threats and menaces, it is not necessary to aver that the marriage was had against the consent of the parties, though that fact must be proved. R. v. Parkhouse, 1 East, P. C. 462.

As to combinations among workmen to regulate the price of wages, see below, tit. " Conspiracies in Restraint of Trade." 2

Proof of the existence of conspiracy in general. It is a question of some difficulty, how far it is competent for the prosecutor to show in the first instance the existence of a conspiracy amongst other persons than the defendants, without showing, at the same time, the knowledge or concurrence of the defendants, but leaving that part of the case to be subsequently proved. The rule laid down by Mr. East is as follows: "The conspiracy or agreement among several to act in concert for a particular end, must be established by proof, before any evidence can be given of the acts of any person not in the presence of the prisoner; and this must, generally speaking, be done by evidence of the party's own act, and cannot be collected from the acts of others, independent of his own, as by express evidence of the fact of a previous conspiracy together, or of a concurrent knowledge and approbation of each other's acts." 1 East, P. C. 96. But it is *observed by Mr. Starkie that in some peculiar instances in which it would be difficult to establish the defendant's privity

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1 Mifflin v. Commonwealth, 5 W. & S. 461. S.

Every association is criminal whose object is to raise or depress the price of labor, beyond what it would bring were it left without artificial excitement. Commonwealth v. Carlisle, 1 Journal Jurisp. 225. See The Trials of the Journeymen Cordwainers, Philadelphia, 1806; New York, 1810; Pittsburgh, 1816 Pamphlets. S.