frandulent issue of certificates of stock by its authorized agent, though the issue was in excess of its capital stock.'

And it has been held that an action lies against a corporation for conspiracy.'

We have no occasion to follow this subject further at this time, as the rules regarding the liability of corporations for the acts of their agents and officers are the same with those which apply as between masters and servants generally, and will be considered in another place.

What has been said on this subject will apply to public corporations as well as to private. Towns, counties, villages and cities must respond for such torts of their officers, agents and servants as have been committed or suffered by corporate authority. So far as the rules which apply to them are peculiar, they will be examined hereafter.

Even the State or the General Government may be guilty of individual wrongs; for while each is a sover- [*123] eignty, it is a corporation also, and as such capable of doing wrongful acts. The difficulty here is with the remedy, not with the right. No sovereignty is subject to suits, except with its own consent. But either this consent is given by general law, or some tribunal is established with power to hear all just claims. Or if neither of these is done, the tort remains; and it is always to be presumed that the legislative authority will make the proper provision for redress when its attention is directed to the injury.

1 New York, etc. R. R. Co. v. Schuyler, 34 N. Y. 30; Tome v. Parkesburg Br. R. R. Co. 39 Md. 36. See Merchants' Bank o. State Bank, 10 Wall. 604; Atlantic Bank v. Merchants' Bank, 10 Gray, 532. Where it was an officer's duty to issue certificates signed by himself and another officer, the former signed his own name and forged the other's and issued the instruments to a purchaser in good faith. The company refused to recognize the issue and register the shares and it was held liable for such refusal. Shaw v. Port Philip, etc. Co. L. R., 13 Q. B. D., 103. Corporation is liable for fraud of its offi

cers in wrongfully cancelling certificates and issuing others. Factors, etc. Co. v. Marine, etc. Co., 31 La. Ann. 149. But where for his own advantage a secretary without express instructions made a false report as to the validity of certain stock transfers, the Company was held not liable. Brit. Mut. Bkg. Co. v. Charnwood, L. R. 18, Q. B. D. 714.

Buffalo, etc. Co. v. Standard Oil Co., 106 N. Y. 669.

• United States v. Peters, 5 Cranch, 139; Osborn o. Bank of U. S.. 9 Wheat. 738; United States v. McLemore, 4 How. 236; Hill v. United States, 9 How. 336.

[*124]

*CHAPTER V.

WRONGS IN WHICH TWO OR MORE PERSONS PARTICIPATE.

Classification. Wrongs, as respects the number of persons who may be responsible for their commission, are either individual or joint. Some wrongs are in their nature necessarily individual, because it is impossible that two or more should together commit them. The case of the oral utterance of defamatory words is an instance; this is an individual act, because there can be no joint utterance. He alone can be liable who spoke the words; and if two or more utter the same slander at the same time, still the utterance of each is individual, and must be the subject of a separate proceeding for redress. It has been said, however, that if several unite in singing the same defamatory song, the singing may be treated as the joint slander of all;" but this is on grounds that distingush it from an ordinary speaking; each speaker having his part in a joint utterance, and the individual voice being a part only of what reaches the ear of the hearer as a whole.

Conspiracy. On the other hand, some torts are in their nature joint torts, because the action of several is required to accomplish them. Reference is not had here to the physical ability to accomplish the wrongful act, such as might be required in overturning a house or in checking by a dam the flow of a rapid river, but to some element in the wrong that consists in the concurrence of two or more actors. Such a case would be a conspiracy to ruin one in his reputation, or to defraud him

1 Chamberlain v. Goodwin, Cro. Jac. 647; Swithin o. Vincent, 2 Wils. 227; Chamberlaine . Willmore, Palm. 313; Patten v. Gurney, 17 Mass. 182; State v. Roulstone, 3 Sneed, 107; Webb . Cecil, 9 B. Mon. 198.

Dictum, Thomas v. Rumsey, 6 Johns. 26, 31. Even here, however, we suppose the person wronged might bring his separate action for the tenor slander, the bass slander, etc.

of his *property; originating in combination, and car- [*125] ried out by joint action, or at least in pursuance of the joint arrangement and understanding.' If conduct is complained of which only becomes actionable because of the dishonest combination to accomplish some wrongful act, this combination must be shown, and one man cannot combine with himself; he must have associates. It is seldom, if ever, however, that a case can occur in which a man may not have redress without counting on the joint wrong; for the injury accomplished by means of the conspiracy may be treated as a distinct wrong in itself, irrespective of the steps that led to it. The general rule is, that a conspiracy cannot be made the subject of a civil action unless something is done which, without the conspiracy, would give a right of action. The damage is the gist of the action, not the conspiracy; and though the conspiracy may be said to be of itself a thing amiss, it must nevertheless, until something has been accomplished in pursuance of it, be looked upon as a mere unful

'Saunders v. Freeman, Plow. 209; Burton . Fulton, 49 Penn. St. 151; Hutchins. Hutchins, 7 Hill, 104; 8. C. Bigelow, Lead Cas. on Torts, 207; Brannock v. Bouldin, 4 Ired. 61; Wildee . McKee, 111 Pa. St. 335.

2 Saville . Roberts, 1 Ld. Raym. 374; Cotterella. Jones, 11 C. B. 713; Sheple . Page, 12 Vt, 519; Patten v. Gurney, 17 Mass. 186 Eason v. Petway, 1 Dev. & Bat. 44; Kimball v. Harman, 34 Md. 407; S. C. 6 Am. Rep.. 340; Laverty o. Van Arsdale, 65 Penn. St. 507; Parker . Huntingdon 2 Gray, 124; Bowen v. Matheson, 14 Allen, 499; Herron v. Hughes, 25 Cal. 555; Page . Parker, 40 N. H. 47; Same. Same, 43 N. H. 363. The general agent of a railroad company posted a notice that any employee trading with plaintiff would be discharged. The latter sued the agent and the company. As the agent's act was not unlawful, it was held there could be no conspiracy. Payne o. Railroad Co., 13 Lea, 507. An action for conspiracy will lie against three men

where one, in pursuance of a joint plan, bought goods from plaintiff on credit, sold them to the other two and absconded, although he made no positive fraudulent representation, when he bought them. "The essence of a conspiracy, so far as it justifies a civil action for damages, is a concert or combination to defraud or to cause other injury to person or property which actually results in damage to the person or property of the person injured or defrauded." Dwight C. Place v. Minster, 65 N. Y. 89. So a conspiracy to boycott a steamer line resulting in damage is actionable. Mogul S. S. Co. v. McGregor, L. R., 15 Q. B. D. 476.

Jones o. Baker, 7 Cow. 445; Hutchins . Hutchins, 7 Hill, 104; Sheple Page, 12 Vt. 519; Laverty v. Van Arsdale, 65 Penn. St. 507; Adler v. Fenton, 24 How. 407; Bush v. Sprague, 51 Mich. 41; Douglass . Winslow, 52 N. Y. Sup. Ct. 439; Garing Fraser, 76 Me. 37.

filled intention of several to do mischief. When the mischief is accomplished, the conspiracy becomes important, as it affects the means and measure of redress; for the party wronged may look beyond the actual participants in committing the injury, and join with them as defendants all who conspired to accomplish it. The significance of the conspiracy consists, therefore, in this: That it gives the person injured a remedy against parties not otherwise connected with the wrong. It is also significant as constituting matter of aggravation, and as such tending to increase the plaintiff's recovery.'

As it is the wrong accomplished-in other words, the [*126] *deprivation of some right-that must support the ac

tion, it follows that if what the plaintiff has been deprived of was not a right at all, but an advantage merely hoped for, he cannot maintain his suit. Therefore, he cannot maintain an action for conspiring to induce one not to make him a gratuity by will; he having no legal right to such gratuity* Nor can he have an action for conspiracy to induce his debtor to put his property out of his hands; since the fraudulent transfer leaves it still subject to legal process. Nor, in general, will an action lie for conspiracy to induce one to violate his contract; though it would seem that some cases might be so extraordinary in their facts as to be exceptions to this general rule."

Kimball v. Harman, 34 Md. 407; S. C. 6 Am. Rep. 340; Place v. Minster, 65 N. Y. 89; Cotterell v. Jones, 11 C. B. 713; Schwab v. Mabley, 47 Mich. 572; Bush v. Sprague, 51 Mich. 41; McHenry v. Sneer, 56 Ia. 649.

2 Kimball v. Harman, 34 Md. 407; Street v. Packard, 76 Me. 148; Garing v. Fraser, 76 Me. 37. When actionable injury is set out as done by several, conspiracy need not be shown except to secure a joint judgment. Lubricating Oil Co. v. Standard Oil Co., 42 Hun, 153. In an action against several for deceit by false representations a fraudulent combination to deceive and defraud must be shown; but when it is shown, any act of one in furtherance of the conspiracy is the act of all. Brinkley v. Platt, 40 Md. 529; Hornblower v.

Crandall, 78 Mo. 581; Breedlove .. Bundy, 96 Ind. 319. Mere silent approval of an unlawful act does not render one liable as a conspirator. Brannock v. Bouldin, 4 Ired. 61.

Hutchins . Hutchins, 7 Hill, 104. Austin v. Barrows, 41 Conn. 287. A conspiracy to ruin an actor by hisses, groans, etc., during his performances may be actionable, though the public have a right to manifest disapproval of an actor's performance. The wrong consists in the combination to do it unfairly and of malice. Gregory v. Brunswick, 6 M. & G. 205. That a conspirator expected to derive no profit from the wrong is immaterial to his responsibility. Stockley v. Hornidge, 8 C. & P. 11.

Though a conspiracy is charged, yet if on the trial, the evidence connects but one person with the wrong actually committed, the plaintiff may recover against him as if he had been sued alone.1

*What constitutes Participation. Most wrongs may [*127] be committed either by one person or by several. When several participate, they may do so in different ways, at different times, and in very unequal proportions. One may plan, another may procure the men to execute, others may be the actual instruments in accomplishing the mischief, but the legal blame will rest upon all as joint actors. In some cases one may also become a joint-wrong-doer by consenting to and ratifying what has been done by others. But this cannot be done by merely approving a wrong, or by expressing pleasure or satisfaction at its being accomplished."

1 READ, J. "This is an action upon the case in the nature of a conspiracy against the defendants for falsely and maliciously combining and conspiring to prevent the plaintiff from obtaining employment as a school teacher, and by reason of which combination and conspiracy he was deprived of employment as a school teacher, and prevented from earning support for himself and his family as such. The damage sustained by the plaintiff is the ground of the action, not the conspiracy. 'Where the action is brought against two or more, as concerned in the wrong done, it is necessary, in order to recover against all of them, to prove a combination or joint act of all For this purpose it may be important to establish the allegation of a conspiracy. But if it turn out on the trial that only one was concerned, the plaintiff may still recover, the same as if such one had been sued alone. The conspiracy or combination are nothing, so far as sustaining the action goes, the foundation of it being the actual damage done to the

party.' Hutchins . Hutchins, 7 Hill, 104; Jones v. Baker, 7 Cowen, 445; Parker v. Huntington, 2 Gray, 124. The court was therefore clearly in error in saying there could be no recovery against one only." Laverty o. Van Arsdale, 65 Penn St., 507, 509. But to warrant a judgment in an action against two for conspiracy to defraud by a collusive judgment, both must be guilty of fraud. Collins . Cronin, 11 Atl. Rep. 869 (Pa.)

2 Thus, where one who knew that a bailee of a team had hired it to go to one place, rode with him to another, in violation of the bailee's duty, it was held he was not liable as a trespasser in so doing. Hubbard . Hunt, 41 Vt. 376. See, also, Langdon v. Bruce, 27 Vt. 657. One who sees a fraud being accomplished before his eyes, by inducing a person to become surety for another who is irresponsible, does not become liable for fraud by merely failing to put the party on his guard. "If the defendants merely knew of the designs and contrivances of the principal party to impose on the plaintiff, that would