Odger's English Common Law

UNLAWFUL PURPOSE. 259
himself off as the bond fide holder, we are of opinion that it is injurious to
the public and tends to bring about a public mischief. " The Court also
decided that in such a case it was not necessary for the prosecution to
allege in the indictment, or to prove by evidence at the trial, that the
defendants intended to create any public mischief. " We are of opinion
that it is for the Court to direct the jury as to whether such an act may
tend to the public mischief, and that it is not in such a case an issue
of fact upon which evidence can be given." J
So it is a criminal conspiracy for an accused person to agree to indemnify
his bail against any loss which they would sustain should the accused nof
appear to take his trial, for such an agreement obviously tends to pervert
and obstruct the course of justice ; and it is not necessary that the jury
should expressly find that the parties intended this result. 2
Again, " the audience have certainly a right to express by applause or
hisses the sensations which naturally present themselves at the moment
and nobody has ever hindered, or would ever question, the exercise of that
right. But if any body of men were to go to the theatre with the settled
intention of hissing an actor, or even of damning a piece, there can be no
doubt that such a deliberate and preconcerted scheme would amount to a
conspiracy, and that the persons concerned in it might be brought to
punishment." 8
Where the act contemplated by the parties is in itself
lawful, a conspiracy to carry it into effect may still be criminal
if the parties agree to attain their end by unlawful means.
But such unlawful means must consist of violence, duress,
threats, stratagem, fraud or some other unfair trickery. Mere
peaceable persuasion towards a lawful act is not sufficient. 4
Thus, where certain parishioners conspired together to induce a woman,
chargeable to their own parish, to marry a man who was a pauper chargeable
to a neighbouring parish, so as to throw upon that parish the burden
of maintaining her as well, it was held that no indictment lay, as it was
not alleged that any violence, threat or other sinister means were employed
or that the paupers were at all unwilling to marry each other. 6
There are, then, some cases—though few in number—in
which an agreement to do an act, which is neither a crime
nor a tort, is yet indictable. But it may be asked, does an
agreement to break a contract or an agreement to induce
i R. v. Brailsford, [1905] 2 K. B. at pp. 745—747. !
2 It. v. Porte,; [l'JIUJ 1 K. B. 369.
8 Per Sir J. Mansfield, C. J., in Clifford v. Brandon (1809), 2 Camp, at p. 369,
(see note on p. 372) ; and see the decision in Gregory v. Duke of Bruwsxmch (1843),
1 C. it K. 24. cited post, p. 629. nmnv
' See the judgment of Bowen, L. J., in Mogul Steamship Co. v. McGregor (1889),
23 Q. B. D. at p. 614, cited with approval by Kennedy, L. J., in National Phonograph
Co., Ltd. v. Edison Bell, $c., Co., Ltd., [1908] 1 Ch. at p. 369.
5 R. v. Seward and others (1834), 1 A. & E. 706.
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