The second great form of tort action involving malice, is that of conspiracy. Conspiracy, in its civil aspect (which is the only side of the subject to be here considered), closely resembles malicious prosecution in many respects. Early actions for conspiracy were almost entirely confined to cases where redress was sought on account of unlawful combinations for instituting criminal prosecutions.73

64 American & English Annotated Cases, Vol. VII, p. 859, note.

65 Hamilton vs. Du Prie, 111 Ga., 819; 35 S. E 684; Carey vs. Sheets, 67 Ind., 375; Humphries vs. Perker, 52 Me., 502.

66 Sandell vs. Sherman, 107 Cal., 391; 40 Pac., 493; Cooper vs. Utterback, 37 Md., 282; Whitfield vs. Westbrook 40 Miss., 311; Eastman vs. Keasor, 44 N. H., 518.

67 Smith vs. Eastern Bldg., etc. Asso., 116 N. C, 73; 20 S. E.f 963; Ramsey vs. Arrott, 64 Tex., 320.

68 Heap vs. Parrish, 104 Ind., 36; 3 N. E., 549; Merriam vs.

Mitchell, 13 Me., 439; 29 Am. Dec, 514; Davis vs. McMillan, 142 Mich., 391; 105 N. W., 862.

69 Harphan vs. Whitney, 77 111., 32;

Christian vs. Hanna, 58 Mo. App., 37; Forbes vs. Hagnan, 75 Va., 168.

70 Cole vs. Andrews, 70 Minn., 230,

73 N. W., 3; Blunk vs. Atchinson, etc. R. Co., 38 Fed., 311. 71 Jenkins vs. Gillifan, 108 N. W.,

237; Mitchell vs. Hall, 111

Mass., 492. 72 Wills vs. Nayes, 12 Pick. 234;

Biering vs Galveston First

Natl. Bank, 69 Tex., 599, 7 S.

W., 90.

The Civil action has at present a somewhat wider use. Conspiracy of itself is not a cause of action.74 There must be an injury,75 and an unlawful act.76 The nature of the act is not changed by the alleged conspiracy. The number who unite to do the act cannot change its character from lawful to unlawful. The gist of a private action for the wrongful act of many is not the combination or conspiracy, but the damage done, or threatened to the plaintiff, by the acts of the defendants.77

This being so, the question arises: For what purpose is the allegation and proof of conspiracy important? The answer is that when the mischief contemplated is accomplished the conspiracy becomes important, as it may affect the means and measure of redress.78 It may be pleaded and proved as aggravating the wrong of which plaintiff complains, and to enable him to recover against all the defendants as joint tort-feasors.79 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.80

73 See Bigelow on Torts, p. 91.

74 8 Cyc, 645.

75 Bulkeley vs. Storer, 2 Day (Conn.), 531; Martin vs. Leake, 93 111. App., 44; Garing vs. Fraser, 76 Me., 37; Robertson vs. Parks, 76 Md., 118, 24 Atl., 411.

76 Kimball vs. Harman, 34 Md., 407, 6 Am. Rep., 340; Boston vs. Simmons, 150 Mass., 401. 23 N.

E., 210, 15 Am. St. Rep., 62, P. A., 629.

77 Boym Mfg. Co. vs. Hollis, 54

Minn., 223, 55 N. W., 1119, 40 Am. St. Rep., 314, 21 L. P. A, 337.

78 Robertson vs. Parks, 76 Md., 118,

24 Atl., 411.

79 Parker vs. Huntington, 2 Gray

(Mass.), 124; Van Horn vs. Van Horn, 52, N. J. L., 284, 20 Atl., 485, 10 L. R. A., 184.

Actions for damages resulting from conspiracies have been sustained, based upon conspiracies for the following purposes among others: conspiracies to defraud in general,-81 conspiracies to defraud creditors 82 conspiracies to prosecute maliciously;83 conspiracies to falsely imprison,84 and conspiracies to injure a person in his business, property or calling.85