tiff, it is a malicious act, which is in law and in fact a wrong act, and therefore a wrongful act, and therefore an actionable act if injury ensues from it." S. P., Walker v. Cronin, 107 Mass. 555 (1871). See Butterick Publishing Co. v. Typographical Union No. 6, 50 Misc. 1; 100 N. Y. Suppl. 292 (Supm. Ct., Sp. T., 1906). CHAPTER III CONSPIRACY AND COMBINATION § 13. Criminal conspiracy. 14. Purpose to be accomplished, when unlawful. 15. Civil liability for criminal conspiracy. 16. Civil liability for act otherwise lawful, but done in pursuance of combination. § 13. Criminal conspiracy.-The comparatively recent in 1 troduction of the doctrine that the fact of combination creates a civil liability where otherwise it would not exist, makes it desirable to obtain a clear idea of the scope of the doctrine of criminal conspiracy, from which the above-mentioned doctrine seems to have been derived. A consideration of the authorities on this subject may well lead us to the conclusion that "no branch of the law of England is more uncertain and ill-defined than the law of criminal conspiracy." A survey of the historical conditions will assist us to understand the origin of the doctrine of criminal, as distinguished from civil, liability for conspiracy. When conspiracies to overthrow governments were more frequent and dangerous than at present, the governmental authorities found it desirable to "nip in the bud” such plots, and punish the conspirators before the conspiracy could be carried into execution. The desire to do this under form of law, if it did not actually produce, seems at least to 1 K. E. Digby, in article in 6 Law Quart. Rev. 128 (1890), on "The Law of Criminal Conspiracy in England and Ireland." See reply by J. G. Butcher, Id. 247 (1890), and further article by Mr. Digby, Id. 363 (1890); also articles in 17 Harv. Law Rev. 510 (1903-4) by A. V. Dicey; 3 Columbia Law Rev. 447 (1903) by W. A. Purrington; 7 Id. 229 (1907) by F. M. Burdick. So it was said in People v. Fisher, 14 Wend. 9; 28 Am. Dec. 501 (1835), that "the offense of conspiracy seems to have been left in greater uncertainty by the common law than most other offenses." have made it easier to establish, the doctrine that a combination to commit any crime was punishable, although the crime had not been executed.1a This doctrine appears in English jurisprudence as early as the fourteenth century, though it does not seem to have been firmly established until the seventeenth. In that period its convenience in obtaining convictions for treason was fully demonstrated. It has in a number of instances been extended to include cases where the acts proposed were not criminal. It seems, however, to have been justly concluded that "there is a great preponderance of authority in favor of the proposition that, as a rule, an agreement or combination is not criminal unless it be for acts or omissions (whether as 'ends' or as 'means') which would be criminal apart from agreement. 3 1a See State v. Dalton, 114 S. W. 1132, 1137 (Ct. App. Mo., 1908). In some instances a mere agreement to commit a crime (excepting certain felonies) is by statute not a criminal conspiracy, unless in addition some act "be done to effect the object" of such conspiracy. See N. J. L. 1898, c. 235, § 37; Wis. Stat. (1898), § 4568; State ex rel. Durner v. Huegin, 110 Wis. 189, 261; 85 N. W. 1046, 1066; 62 L. R. A. 700, 746 (1901). See note 4, infra. 2 Wright on Criminal Conspiracies and Agreements, pp. 6, 7. See article in 37 Am. Law Rev. 33 (1903) by F. P. Blair. These applications of the doctrine were vividly before the minds of those who conducted the Revolutionary war and founded our government. "No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." U. S. Const., art. 3, § 3. 3 This extension was recognized in Reg. v. Parnell, 14 Cox C. C. 508 (1881), and so, it seems, generally A commonly accepted defini in this country. See Chicago, Wilmington, etc., Coal Co. v. People, 214 Ill. 421, 440; 73 N. F. 770, 775 (1905); Commonwealth V. Hunt, 4 Metc. (Mass.) 111, 123; 38 Am. Dec. 346, 349 (1842); Carew v. Rutherford, 106 Mass. 1, 10; 8 Am. Rep. 287, 291 (1870); Walsh v. Association of Master Plumbers, 97 Mo. App. 280, 292; 71 S. W. 455, 459 (1902); State v. Howard, 129 N. C. 584; 40 S. E. 71 (1901); State v. Stewart, 59 Vt. 273; 9 Atl. 559; 59 Am. Rep. 710 (1887); Martens v. Reilly, 109 Wis. 464; 84 N. W. 840 (1901). tion of a conspiracy is that it is "a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means." 5 vision is found in Md. Pub. Gen. Laws (1904), art. 27, § 34, and to similar effect are Cal. L. 1903, c. 235; Okla. L. 1907, c. 53, art. 2, § 2. That this provision does not relate to civil remedies, see Quinn v. Leathem, App. Cas. (1901) 495, 512, 515, 527, 542; article in 19 Law Quart. Rev. 37, 182 (1903) by D. R. Chalmers Hunt. See English statutes and decisions reviewed in article in 21 Am. Law Rev. 41 (1887) by Clifford Brigham. See also National Protective Assoc. v. Cumming, 170 N. Y. 315; 63 N. E. 369; 58 L. R. A. 135; 88 Am. St. Rep. 648 (1902). As to the specific case of combinations to increase wages, see § 53; as to strikes, see § 57. 5 Commonwealth v. Hunt, 4 Metc. (Mass.) 111, 123; 38 Am. Dec. 346, 349 (1842). See also Quinn v. Leathem, App. Cas. (1901) 495, 528; Giblan v. National Amalgamated Labourers Union, 2 K. B. (1903) 600; Callan v. Wilson, 127 U. S. 540, 555; 8 Supm. 1301, 1306; 32 L. Ed. 223 (1888); Goldfield Consol. Mines Co. v. Goldfield Miners' Union, 159 Fed. 500, 517 (C. C. Nev., 1908); Parkinson v. Building Trades Council, 98 Pac. 1027, 1032 (Supm. Ct. Cal., 1908); State v. Stockford, 77 Conn. 227; 58 Atl. 769; 107 Am. St. Rep. 28 (1904); Brown v. Jacobs Pharmacy Co., 115 Ga. 429, 433; 41 S. E. 553, 554; 57 L. R. A. 547, 550; 90 Am. St. Rep. 126 (1902'; Franklin Union v. People, 220 Ill. 355, 376; 77 N. E. 176, 183; 4 L. R. A. N. S. 1001, 1013; 110 Am. Ct. Rep. 248 (1906); Karges Furniture Co. v. Amalgamated Woodworkers' Local Union, 165 Ind. 421; 75 N. E. 877; 2 L. R. A. N. S. 788 (1905); Standard Oil Co. v. Doyle, 118 Ky. 662; 82 S. W. 271; 111 Am. St. Rep. 331 (1904); State v. Slutz, 106 La. 182; 30 So. 298 (1901); Carew v. Rutherford, 106 Mass. 1, 10; 8 Am. Rep. 287, 291 (1870); Beck v. Railway Teamsters' Protective Union, 118 Mich. 497, 516; 77 N. W. 13, 20; 42 L. R. A. 407, 415; 74 Am. St. Rep. 421 (1898); State ex inf. Crow v. Firemen's Fund Ins. Co., 152 Mo. 1, 43; 52 S. W. 595, 607; 45 L. R. A. 363, 376 (1899); Walsh v. Association of Master Plumbers, 97 Mo. App. 280, 289; 71 S. W. 455, 457 (1902); State v. Dalton, 114 S. W. 1132, 1137 (Ct. App. Mo., 1908); State v. Van Pelt, 136 N. C. 633, 644, 667; 49 S. E. 177, 181, 189; 68 L. R. A. 760, 764, 773 (1904); Erdman v. Mitchell, 207 Pa. St. 79, 91; 56 Atl. 327, 331; 63 L. R. A. 534, 539; 99 Am. St. Rep. 783 (1903); State v. Ameker, 73 S. C. 330; 53 S. E. 484 (1906); State v. Stewart, 59 Vt. 273, 286; 9 Atl. 559, 567; 59 Am. Rep. 710, 713 (1887); Boutwell v. Marr, 71 Vt. 1; 42 Atl. 607; 43 L. R. A. 803; 76 Am. St. Rep. 746 (1899); Martens v. Reilly, 109 Wis. 464; 84 N. W. 840 (1901); State ex rel. Durner v. Huegin, 110 Wis. 189, 261; 85 N. W. 1046, 1066; 62 L. R. A. 700, 746 (1901). In Commonwealth v. Hunt, a criminal con § 14. Purpose to be accomplished, when unlawful.—The question when, within the meaning of the definition, the purpose to be accomplished by a conspiracy is unlawful, has been one of considerable difficulty. It seems to have been said with reason spiracy was held not charged in an indictment alleging that "the defendants, with others unknown, did assemble, conspire, confederate and agree together, not to work for any master or person who should employ any workman not being a member of a certain club, society or combination called the Boston Journeymen Bootmakers' Society, or who should break any of their by-laws, unless such workman should pay to said club such sum as should be agreed upon as a penalty for the breach of such unlawful rules, etc.; and that by means of said conspiracy they did compel one W., a master cordwainer, to turn out of his employ one H., a journeyman bootmaker, etc., in evil example," etc. The court said (4 Metc. 131; 38 Am. Dec. 356): "The averment of a conspiracy is simply an averment of an agreement amongst themselves not to work for a person who should employ any person not a member of a certain association. It sets forth no illegal or criminal purpose to be accomplished, nor any illegal or criminal means to be adopted for the accomplishment of any purpose. It was an agreement as to the manner which they would exercise an acknowledged right to contract with others for their labor." The averment as to compelling W. to turn H. out of his employ was held mere matter of aggravation that could not supply the want of allegation of a conspiracy, or, regarding it a in substantive charge, was held not to allege a criminal conspiracy, in view of the connection in which it was used. The court, however, interpreted the agreement as not covering the case of quitting employment on breach of a contract for a fixed period, or inducing otaers to so quit, saying: "If a large number of men, engaged for a certain time, should combine together to violate their contract and quic their employment together, it would present a very different question." As to application of doctrine that "where concert of action is necessary to the offense, conspiracy does not lie," see Wharton's Criminal Law, 1339; State v. Huegin, supra (110 Wis. 243; 85 N. W. 1060; 62 L. R. A. 738). As to necessity that conspiracy be for commission of single indivisible wrong, as distinguished from an aggregation of acts, see Kolel America, etc. v. Eliach, 29 Misc. 499; 61 N. Y. Suppl. 935 (Supm. Ct., Sp. T., 1899). In State v. Eastern Coal Co., 70 Atl. 1 (Supm. Ct. R. I., 1908), it was held that a corporation could be guilty of the crime of conspiracy. See as to liability of corporation therefor, U. S. v. MacAndrews, etc., Co., 149 Fed. 823 (C. C. N. Y., 1906). As to respective liability of corporations and their officers or agents, see Standard Oil Co. v. State, 117 Tenn. 618, 662; 100 S. W. 705, 716; 10 L. R. A. N. S. 1015, 1027 (1906), which was followed in State v. Standard Oil Co., 110 S. W. 565, 587 |