4. JONES V. BAKER, ET AL. Aug. T. 1827, 7 Cowen's N. Y. Rep. 450. S. P. TAPPAN, ET AL, V. POWERS ET AL 2 Hall's Rep. 279. This was an action on the case in the nature of a conspiracy And for in juring a to injure the plaintiff in trade, and Kent, C. J. held that damage person in was the gist of the action, and not the conspiracy. 5. JONES V. BAKER, AND ANOTHER, Aug. T. 1827, 7 Cowen's N. Y. Rep. 445. trade, and the damage is the gist of the ac tion. an action This was an action on the case for a conspiracy against the And in such defendants, and Savage, C. J. held that one of the defendants one of the might be acquitted and the other convicted. 6. defendants may be ac quitted and the other convicted. A writ of conspiracy JONES V. BAKER, Aug. T. 1827, 7 Cowen's N. Y. Rep. 449. Per Cur. Savage, C. J. A writ of conspiracy, properly so called, did not lie, at the common law, in any case, but where the formerly lay, only conspiracy was to indict the party either for treason or capital where tho conspiracy was to in felony, and a verdict had been rendered in his favour; and such writ must be brought against two at least. All the other cases dict the par ty of a capi of conspiracy in the books, were but actions on the case, though tal felony. it was usual in such actions, to charge a conspiracy. Yet they might be brought against one; 1 Saund. 230, n. (4.) (B) OF THE DECLARATION. 1. GRIFFITH V. OGLE, ET AL. Sept. T. 1806, 1 Binney's Penn. Rep. 172. in the na This was an action on the case in the nature of a writ of con- In an action spiracy. A verdict being found for the plaintiff, it was moved to on the case arrest the judgment, because the declaration did not state that the defendants conspired against the plaintiff without probable cause. writ of con spiracy, it is not neces ture of a sary to de without probable Per Cur. Tilghman, C. J. In a writ of conspiracy strictly clare that the conspir speaking, it is sufficient to charge the defendants with a conspira- acy was cy falsely and maliciously to accuse the plaintiff of a crime, This action on cause. without saying any thing about probable cause. the case in the nature of a writ of conspiracy, has been invented for the ease of plaintiffs, being attended with much less form than the old writ of conspiracy. VOL. III. 38 2. Contra. Whatever is done in of a fraudu ation by to be the act of all. KIRTLEY V. DECK, ET AL. March T. 1811, 2 Mumford's. Va. Per Cur. Tucker, Roane and Hemming, Js. concurred, that in an action on the case for conspiracy, as well as in the action for malicious prosecution, an averment in the declaration that the prosecution was false and malicious, was not sufficient; but it must be averred to have been without probable cause. 3. TAPPAN, ET EL. V. POWERS, DAVIS AND LAWRENCE, Aug. T. 1829, 2 Hall's N. Y. Rep. 277. This was an action upon the case, in the nature of a conspiracy. pursuance The declaration alleged a combination among the defendants, lent combin for the purpose of defrauding the plaintiffs of certain merchanany of the dize, under color of a purchase of it by the defendant, Lawrence, paties con that it might be converted to the benefit of Davis, and described cerned may be averred the various acts whereby the fraud was to be perpetrated. Some of these acts were charged to have been done by all the defendants, and others by one or two of them, but all in pursuance of the original combination. Upon demurrer to the declaration, (both general and special) Oakley, J. held that whatever is done in pursuance of a fraudulent combination, by any of the parties concerned in it, may be averred to be the act of all. That the conspiracy is only important as it gives a character to the acts of the parties to it, and charges them with the legal consequences of such acts. 4. GRIFFITH V. OGLE, ET AL. Sept. T. 1806, 1 Binney's Penn. Rep. 172. The law im This was an action on the case in the nature of a writ of conplies dam to accuse a age from a spiracy against the defendants for falsely and maliciously accusconspiracy ing the plaintiff, a justice of the peace, with taking illegal fees.. erso of an Verdict for the plaintiff from which the defendants appealed. offerce for It was contended on the part of the defendants that the declaraliable to in tion did not allege that the plaintiff was put to any inconveand remov nience, or suffered any loss or damage. which he is dictment al from of fice, and it averred. Per Cur. Tilghman, C. J. We are of opinion that inasmuch. need it te as the conspiracy was to accuse the plaintiff of an offence, for which he was liable to indictment, and removal from office, the law implies damage. (C) OF THE EVIDENCE. 1. GARDNER V. PRESTON, ET AL. June T. 1805, 2 Day's Conn. This was an action on the case, against the defendants, for a conspiracy. A conspira cay may be proved by showing a the defend sons con It appeared that the defendants had falsely represented concurrent knowledge one Talman, (also one of the defendants in this case,) to be a and appro person of credit, and safe to be trusted; and the persons to bation by whom he was thus represented, also represented him to the ants in the plaintiff as a perfectly solvent person, whereby the plaintiff acts by per trusted said Talman to a large amount, which he lost. The dep- spiring ositions of those third persons were offered in evidence, to prove the conspiracy of the defendants, but objected to, unless the plaintiff could prove that the defendants requested those third persons to recommend Talman to the plaintiff. The Court below objected to the testimony on the ground taken by the defendants. Per Cur. The question is, whether the testimony objected to was admissible. The testimony offered by the plaintiff below was clearly admissible. The recommendation by the defendants, of Talman, a bankrupt of ruined reputation, to several merchants, as a man of large property, and safely to be trusted, their concurrence in the representations, at the same time, and apparently for the same purpose, conduced the combination alleged. Judgment reversed. 2. JONES V. BAKER, Aug. T. 1827, 7 Cowen's N. Y. Rep. 445. This was an action on the case in the nature of a conspira- And may cy, and Savage, C. J., held, that in this action the conspiracy from circuma might be inferred from circumstances. 3. GARDNER V. PRESTON, June T. 1805, 2 Day's Conn. Rep. 210. S. P. COLLINS, ET AL. V. THE COMMONWEALTH. 3 Sergt. be inferred S'ances. ator is the Per Cur. Whatever is done in pursuance of a conspiracy, by Whatever is done by one of the conspirators, is to be considered as the act of all. one conspir This principle has been established by repeated determinations, act of all. and must be considered as at rest; 1 East. Pleas of the Crown, 97; 2 M'Nally, 611. ment of a Constable. See tit. Sheriff. (A) APPOINTMENT OF, p. 300. (D) RIGHTS OF, p. 303. (E) LIABILITIES OF, p. 307. (F) PLEADINGS IN SUITS BY OR AGAINST, p. 313. (G) EVIDENCE, p. 315. (H) FEES OF, p. 317. (I) COSTS IN SUITS BY OR AGAINST, p. 318. (A) APPOINTMENT OF. 1. WOOD V. PEAK, May, T. 1811. 8 Johns. N. Y. Rep. 54, (69.) Trespass for taking plaintiff's goods. The defendant justiTheappoint fied as constable appointed by three; justices under the statute constable of 27th of March 1801, which contained a provision for by three justices un the appointment of constables by the inhabitants of the towns," act and that if the town shall not, &c., choose, it shall be lawful of 1801, is valid, and for any three justices of the peace residing in, and near the town, to appoint." cannot be questioned in a collater al action. Per Cur. This appointment is a judicial act, for the justices must first determine and adjudge that there is a vacancy in the * A constable is described as the keeper of the peace; the high constable of the hundred, and the petty constable for the town; see Kitch. of Courts, 97; 12 H. 7 fol. 38. At common law, before making of the statutes by which justices of the peace were ordained to keep the peace, constables of every town were keepers of the peace within their towns; Kitch. of Courts, 96. But now they are merely officers who keep the peace and execute the precepts of justices of the peace, &c. As to the antiquity of the office of constable, it seems to be the better opinion, that both constables of hundreds, commonly called high constables, and constables of tithings, commonly called petit constables, or tithing men, were appointed by the common law. and not first created by the statute of Westminister, c. 6, which enacts, that in "every hundred and franchise, two constables shall be chosen to make the view of armour, and they shall present defaults of armour, and of suits of towns, and of highways, and such as lodge strangers in uplandish towns, for whom they will not answer." This statute, it will be observed, does not say there shall be such officers constituted; but clearly seems to suppose that there were such before the making of it; see 2 Hawk. P. C. 61. In some places there is both a tithing man and constable; the tithing man is as it were, a deputy to execute the office and authority of the constable in his absence; but there are some things which a constable has power to do that tithingmen cannot intermeddle with; but in places where there is no constable, the office and authority of tithingmen seem to be the same only under a di~ferent name; see 1 Black. Com. 357; 6 Petersdorff's Abr. 79. (116.) office, and that the town neglected to fill it up. It is not traversable in such a collateral action. The appointment remains valid until it be set aside, or quashed in the regular course, upon certiorari. It is certainly sufficient to justify the constable, he comes to the office by an appointment, regular according to the forms of law, and by a tribunal having jurisdiction of the case. 2. CHAMBERS V. THOMAS. Spring. T. 1821. 3 Marsh. Ky. Rep. 536. Per Cur. Owsley J., held that although it was not strictly and also a general ap regular for the County Court to appoint a constable without pointment is valid. allotting him a particular district, yet such general appointment was not void. (B) OFFICIAL BOND OF. See Pleadings, p. st. 1. ARCHER V. NOBLE, ET AL. June, T. 1825. 3 Greenlf. Me. Rep. 418. Debt on a bond given by the defendant, Noble, and his sure- A constable ties, to the town treasurer, conditioned for the faithful perform- en a bond having giv ance of his duties and trust, as to all processes by him served or for the faith ful perform executed, in his office of constable of the town. It appeared ance of his that Noble had in his hands an execution issusd in due form of duties, as to all proces law, against one Pishon, and under pretence of his office of ses by him constable, did seize and carry away the property of one Rich-seized the ards, for whose benefit this action was brought, and the Court goods of A. Mellen, C. J., held that this was not a mere private trespass, but ecution a a breach of his bond. executed, under an ex gainst B. held not a mere pri THE PEOPLE V. HOLMES AND ANOTHER, May T. 1829. 2 Wend. his bond. N. Y. Rep. 281. S. C. 5 Wend. Rep. 191. person to Per Cur. Savage, C, J. Any person to whom the consta And any ble has become responsible on account of an execution deliver- whom he ed to him for collection, is entitled to commence a suit on the has become liable, may bond or instrument in writing, (in the language of the statute,) commence a executed by him to ensure the faithful discharge of his duties, and previous leave to prosecute, is not necessary to be obtained. suit on i |