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abuse of process from malicious prosecution in at least two respects: First, in that want of probable cause is not an essential element,551 and, second, that it is not essential that the original proceeding shall have terminated.352 It differs from false imprisonment in that, inter alia, a warrant valid on its face is no defense, and it is entirely inconsistent with extrajudicial proceedings. 353 The process abused, moreover, may be either civil or criminal.354 It has, however, been held that an action for false imprisonment may lie for misuse or abuse of legal process after it has issued.355

MALICIOUS INTERFERENCE WITH CONTRACT.

204. Actions to recover damages for malicious interference with contract have been generally recognized in England, and sometimes in America. Four things are necessary to sustain the action:

(a) A contract.

(b) Knowledge of the contract on the part of defendant. (c) Malice on the part of defendant.

(d) Damage suffered by plaintiff.

ner, the remedy is case. Kennedy v. Barnett, 64 Pa. St. 141, commenting on Sommer v. Wilt, 4 Serg. & R. (Pa.) 19; Barnett v. Reed, 51 Pa. St. 190; Kramer v. Lott, 50 Pa. St. 495.

351 Hazard v. Harding, 63 How. Prac. 326. Compare Juchter v. Boehm, 67 Ga. 534; Crusselle v. Pugh, 71 Ga. 744.

352 Bebinger v. Sweet, 1 Abb. N. C. 263; Driggs v. Burton, 44 Vt. 124; Mayer v. Walter, 64 Pa. St. 283; Zinn v. Rice, 154 Mass. 1, 27 N. E. 772; Antcliff v. June, 81 Mich. 477, 45 N. W. 1019; Emery v. Ginnan, 24 Ill. App. 65; 2 Greenl. Ev. § 452.

353 King v. Johnston, 81 Wis. 578, 51 N. W. 1011. But see Holley v. Mix. 3 Wend. 350; Wood v. Graves, 144 Mass. 365, 11 N. E. 567; State v. Jungling, 116 Mo. 162, 22 S. W. 6SS.

354 Thus, it may lie for a wrongful levy: Birch v. Conrow, 161 Pa. St. 118, 28 Atl. 1009; Farmer v. Crosby, 43 Minn. 459, 45 N. W. 866; Sommer v. Wilt, 4 Serg. & R. 19; Churchill v. Siggers, 3 El. & Bl. 929. For excessive attachment: Savage v. Brewer, 16 Pick. 453; Moody v. Deutsch, 85 Mo. 237. Et vide Hollingsworth v. Atkins, 46 La. Ann. 515, 15 South. 77; State v. Andrews, 39 W. Va. 35, 19 S. E. 385; B. C. Evans Co. v. Reeves, 6 Tex. Civ. App. 254, 26 S. W. 219.

355 Wood v. Graves, 144 Mass. 365; Crowell v. Gleason, 10 Me. 325; Fran

In England.

In the celebrated case, Lumley v. Gye,

the plaintiff, the manager of a theater, had contracted with an opera singer to perform for him exclusively during the term of her engagement. The defendant, knowing this, and maliciously intending to injure the plaintiff as a manager, while the agreement was in force, and before the expiration of the term, enticed and procured the singer to wrongfully refuse to execute the contract. The majority of the court regarded the case as in strict analogy to the ordinary case of master and servant, as one of pure tort, and as resting on natural principles of tort, in that whoever maliciously procures the violation of another's right, whether involving a contract or not, ought to be made to indemnify. Coleridge, J., dissenting, however, urged that actions under the statute of laborers were confined to menial servants, that only the parties to the contract should be allowed to recover under it, and that the damages claimed in this case were objectionable as remote. The rule established in this case has been subsequently followed in England.357 It is not material whether the contract maliciously interfered with is between a master and servant or not. If the interference is used for the purpose of injuring the plaintiff, or of benefiting the defendant at the expense of the plaintiff, the conduct is malicious.358

In America.

In Walker v. Cronin,359 the English rule was followed. "Every one," it was said, "has the right to enjoy the fruits and advantages

cisco v. State, 24 N. J. Law, 30; Sleight v. Leavenworth, 5 Duer, 122; Lange v. Benedict, 73 N. Y. 12.

356 2 EI. & Bl. 216; Green v. Button, 2 Cromp., M. & R. 707; Cattle v. Stockton Waterworks Co., L. R. 10 Q. B. 453; 1 Intercollegiate Law J. 102; article by William L. Hodge, 28 Am. Law Rev. 47, 80; article by A. L. Tidd, 40 Cent. Law J. 86.

357 Bowen v. Hall, 6 Q. B. Div. 335; 20 Am. Law Rev. 578; Templeton v. Russell, 1 Q. B. Div. 715. And see note 356; Com. Dig. "Action on Case," A; Cattle v. Stockton Water Works Co., L. R. 10 Q. B. 453, 458; Ames, Cas. Torts, 612, note 2; Add. Torts, 37.

358 Temperton v. Russell [1893] 4 Reports, 376.

359 107 Mass. 555, approved in Thomas v. Cincinnati, N. O. & T. P. Ry. Co., 62 Fed. 816. And see Sherry v. Perkins, 147 Mass. 212, 17 N. E. 307.

ance.

of his own enterprise, industry, skill, and credit. He has no right to be protected against competition; but he has a right to be free from malicious and wanton interference, disturbance, and annoyIf the disturbance or loss comes as a result of competition, or the exercise of like rights by others, it is damnum absque injuria; but if it comes merely from wanton or malicious acts of others, without the justification of competition, or the service of any interest or lawful purpose, it stands on a different footing," and the wrongdoer is liable. Lumley v. Gye has been followed in a number of other cases,360 and by the supreme court of the United States in Angle v. Chicago, St. P., M. & O. Ry. Co.301 On the other hand, the numerical weight of authority would seem to be against recognition of such a moral wrong as the basis of a judicial action.362 Thus, in a case similar to Lumley v. Gye, the defendant induced Mary Anderson to break her contract with her manager, the plaintiff. The court held that the action could not be maintained, because it was not the policy of the law to restrict competition, whether concerning property or personal services; that the only occasion for more stringent regulation of the latter is in purely domestic relations; and that ordinarily the employer should look only to the person employed, when there was a breach of the contract, just as the seller must look to the buyer, and the creditor to the debtor, in default of payment.303

360 Jones v. Stanly, 76 N. C. 355; Bixby v. Dunlap, 56 N. H. 456; Jones v. Blocker, 43 Ga. 331; Salter v. Howard, 43 Ga. 601; Benton v. Pratt, 2 Wend. 385; Rice v. Manley, 66 N. Y. 82; Dickson v. Dickson, 33 La. Ann. 1261; Upton v. Vail, 6 Johns. 181; Barr v. Essex Trades Council (N. J. Ch.; Dec. 24, 1894) 30 Atl. 881, reviewing cases; Lally v. Cantwell, 30 Mo. App. 524.

361 14 S. Ct. 240; 7 Harv. Law Rev. 428 (Jan. 13, 1894). It was said in Chambers v. Baldwin, 91 Ky. 121, 15 S. W. 57: "An action cannot in general be maintained for inducing a third person to break his contract with plaintiff'; for one party to the contract may have his remedy by suing on it,”—approving Cooley, Torts, 497.

362 Chambers v. Baldwin, 91 Ky. 121, 15 S. W. 57; Boyson v. Thorn, 98 Cal. 578, 33 Pac. 492. Malicious interference with contract, 32 Cent. Law J. 273 And see 2 Harv. Law Rev. 19. And see dissenting opinion, Haskins v. Royster. 70 N. C. 601.

363 Bourlier v. Macauley, 91 Ky. 135, 15 S. W. 60.

CONSPIRACY.

205. A conspiracy is an agreement or engagement of persons to co-operate in accomplishing some unlawful purpose, or some purpose which may not be unlawful, by unlawful means.364 The conspirators are liable for conduct pursuant to such agreement to inflict injury. The injury done, and not the conspiracy, is the gist of the action.

206. The charge of conspiracy may be of use

(a) To create a liability in cases of tort actionable only when committed by two or more;

(b) To enable the defendant to apply principles of liability of joint tort feasors to conspirators;

(c) To enlarge the scope of evidence admissible;

(d) To aggravate damages; and

(e) To entitle to an injunction.

"Conspiracy" naturally refers to some agreement for joint action. At common law, it was the name of a writ. That writ did not take its appellation from the wrong it was designed to remedy. On the contrary, the wrong to which it issued was malicious prosecution; but it issued only when persons, by agreement, united in concerted malicious prosecution.365 The practice is supposed to have its origin in the phraseology of 21 Edw. L. Because of confusion as to this old writ, and of civil with criminal conspiracy, there is much uncertainty in the meaning given to, and the use made of, the term. Indeed, the term is now commonly applied to unlawful combinations of workmen to raise their wages, or otherwise improve their condition.367

864 State v. Mayberry, 48 Me. 218.

365 Bigelow, Lead. Cas. 214.

And see Van

306 Bigelow, J., in Parker v. Huntington, 2 Gray (Mass.) 124. Syckel, J., in Van Horn v. Van Horn (N. J. Err. & App.) 28 Atl. 669. 367 Toml. Law Dict. tit. "Conspiracy." And see post, p. 641.

Injury the Gist of the Action.

A civil conspiracy is an unlawful combination or agreement between two or more persons to do an act unlawful in itself, or a lawful act by unlawful means.368 But, as has been shown, mere agreement to do wrong is not actionable. There must be some overt act consequent upon such agreement, to give the plaintiff a standing in a court of law, although it may be otherwise in equity. The liability is damages for doing, not for conspiring.36 The charge of conspiracy does not change the nature of the act. The true test of liability, in cases of conspiracy, is whether or not there is conduct in pursuance of a conspiracy, and injury-not merely damage resulting from such conduct. The general nature of the wrong is the malicious interference with certain general rights recognized and protected by the law.370 There may be an agency, and also a con

368 King v. Jones, 4 Barn. & Adol. 345; O'Connell v. Reg., 11 Clark & F. 115; Breitenberger v. Schmidt, 38 Ill. App. 168; Reg. v. Parnell, 14 Cox, Cr. Cas. 508; Angle v. Chicago, St. P., M. & O. R. Co., 151 U. S. 1, 14 Sup. Ct. 240. The definition of a conspiracy given in the text is the current and conventional one. It has been observed with much force, however, that "what a conspiracy is no one knows. Its definition is always question begging, and the only intelligible meaning of it seems to be that there is an indefinite class of offenses which become conspiracies because several combine in the execution, and so render opposition by an individual more difficult." 8 Harv. Law Rev. 228; Mr. Justice Harlan, in Arthur v. Oakes, 63 Fed. 310. And see Lord Esher, in Temperton v. Russell [1893] 1 Q. B. 715.

369 Boston v. Simmons, 150 Mass. 461, 23 N. E. 210; Sweeny v. Torrence, 11 Pa. Co. Ct. R. 497.

370 Hutchins v. Hutchins, 7 Hill (N. Y.) 104; Bigelow, Lead. Cas. 207. Et ride Place v. Minster, 65 N. Y. 89; Burd. Lead. Cas. 259; Robertson v. Parks, 76 Md. 118, 24 Atl. 411; Austin v. Barrows, 41 Conn. 287; Verplanck v. Van Buren, 76 N. Y. 247; Findlay v. McAllister, 113 U. S. 104, 5 Sup. Ct. 401; Parker v. Huntington, 2 Gray (Mass.) 124; Payne v. Western Ry. Co., 13 Lea (Tenn.) 507; Kimball v. Harman, 34 Md. 407; Allen v. Fenton, 24 How. 407; Bush v. Sprague, 51 Mich. 41, 16 N. W. 222; Garing v. Fraser, 76 Me. 37; Herron v. Hughes, 25 Cal. 556; Cook v. Churchman, 104 Ind. 141-149, 3 N. E. 759; Wildee v. McKee, 111 Pa. St. 335, 2 Atl. 108; Engstrom v. Sherburne, 137 Mass. 153; Savile v. Roberts, 1 Ld. Raym. 374; Cotterell v. Jones, 11 C. B. 713; Castrique v. Behrens, 30 Law J. Q. B. 163; Walsham v. Stainton, 33 Law J. Eq. 68; Skinner v. Gunton, 1 W. Saund. 229; Turner v. Turner, Gow, 20. A complaint charging defendant with a conspiracy to slander plain

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