Pencavin v. Trapping, 1 N.C. 262, 1 Mart. 262 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 262, 1 Mart. 262

Pencavin vs. Trapping.

Mich. 3 Car.

CASE against two, in C. B. for procuring the plaintiff to be indicted of common barretry. He had judgment and error was brought here.

1. They ought not to be joined in one action; quia the procurement of one, is not the procurement of the other. 7 Jac. Stade vs. Roper. K. B. the court was divided on a question, whether an action may be brought against many, for procuring a person to be put out of the commission of the peace. Intrat. T. 6. Jac. rot. 568.

Lane, e contra,

M. 1 Jac. Shorsby and Brendy, and Walton, in the Exchequer. Case was brought against two for procuring him to be outlawed in London, in order that he should forfeit his goods in Middlesex, and held well. 18 Entr. 123. Action against two for procurement, and the court was of the same opinion, as to this point, as in maintenance or trespass; yet the maintenance or trespass of the one is not the maintenance or trespass of the other.

2. Here is no plea alledged where the procurement was, but only where the indictment was. 35 H. 6. 15. 36 H. 6. 30.

Doderidge, J.

et al. argued that the place of the procurement ought to be shewn; but he said that here it is not shewn, quia it is no procurement until he be indicted, aliter, in a conspiracy, for if two conspire to indict one, it is no procurement, until he be indicted.

Sed Hyde, C. J. Jones, J. and Whitlock, J. e contra *and adjournatur. Intrat. term P. for they continued opposed to Doderidge, J’s. opinion: quia the indictment is no offence, without a false procurement. Ergo, if two conspire that one should indict, the action lies against both for procurement. [Quære de hoc?]

Banks cited 27 Aff. 44. and Brief 924. that the action lies, although there be no indictment, but not a writ of conspiracy. So conspiracy lies not, if the indictment be bad; but an action on the case lies, although the indictment be reversed, Yet the amercement remains. 8 E. 4. 25, and the costs. 28 H. 8. 2.

Hyde, C. J.

The procurement is the imagination or agreement to indict.