This question was most emphatically a question for the jury; and, I think it was submitted to the jury as favorably for the defendant as he had a right to expect or ask.
It is true, that in submitting it to the jury, Justice Potter assumed that the defendant, when he answered the questions as he did, knew what the question in the proceeding before the surrogate was; but Justice Potter had a right to assume this under the circumstances.
I think the judgment should be affirmed, with costs.
All concur for affirmance.
Judgment affirmed.[[461]]
RICE v. COOLIDGE
Supreme Judicial Court, Massachusetts, December 1, 1876.
Reported in 121 Massachusetts Reports, 393.
Morton, J. This is an action of tort. The principal question raised by the demurrer is, whether the plaintiff’s declaration states any legal cause of action. Each count alleges, in substance, that a proceeding for a divorce was pending in the courts of the State of Iowa, between Joseph S. Coolidge and Mary L. Coolidge, in which the latter alleged that the said Joseph S. Coolidge had been guilty of adultery with the plaintiff; that the defendants conspired together and with the said Mary L. Coolidge to procure and suborn witnesses to falsely testify in support of said charges of adultery; and that the defendants, in pursuance and execution of said conspiracy, did procure and suborn certain witnesses named, to testify in said divorce suit, and to falsely swear to criminal sexual intercourse between the plaintiff and said Joseph S. Coolidge, and between the plaintiff and other persons, and to various other acts and things which, if believed, would tend to bring disgrace and infamy upon the plaintiff.
Three of the counts also allege that the defendants, in pursuance and execution of the conspiracy, published or caused to be published a printed pamphlet in which the false testimony of such witnesses was repeated, and made the pretext for false and malicious charges upon the plaintiff’s character and good name.
The gist of the plaintiff’s case is that the defendants have suborned witnesses to falsely swear to defamatory statements concerning her, and have done other connected acts in pursuance of a scheme or plan to defame her. The alleged conspiracy or combination is not one of the elements of the cause of action. That is not created by the conspiracy, but by the wrongful acts done by the defendants to the injury of the plaintiff. If the acts charged, when done by one alone, are not actionable, they are not made actionable by being done by several in pursuance of a conspiracy. Wellington v. Small, 3 Cush. 145; Parker v. Huntington, 2 Gray, 124; Bowen v. Matheson, 14 Allen, 499.
The question is presented, therefore, whether the plaintiff can maintain an action of tort, in the nature of the common-law action on the case, against the defendants for suborning witnesses to falsely swear to defamatory statements concerning the plaintiff in a suit in which neither of the parties to this suit was a party.