MALICIOUS PROSECUTIONS. resulted in a nonsuit. In this case the defendants were called upon " to show wherefore, having before had conspiracy between them at N., they falsely and maliciously procured the aforesaid A. to be appealed of the death of D., lately slain at E., and him the said A. to be taken upon that occasion and to be detained in our prison of L. until in our Court before us the same A., &c., by the consideration of our Court departed quitted thereof, &c." The statute referred to in these writs was the statute of Ed- ward III., called " De Corspiratoribus," which begins with the following definition: (6) "Conspirators be they that do confeder or bind them- selves by oath, covenant or other alliance that every of them shall aid and bear the other falsely and maliciously to indite or cause to indite, or falsely move or maintain pleas," and goes on to deal with the kindred wrong of maintenance. (c) Since one person one cannot be guilty of con- [ * 3 ] * spiracy, this form of action lay only when more persons than one were concerned in the false indictment; and when the wrong was committed by only one person there was an action on the case "in the nature of an action of conspiracy" against him. The distinction between the two kinds of action is exhaustively treated in the judgment of Lord Chief Justice Holt in the case of Savill v. Roberts, 1 Ld. Kaym. 374 (1678), which may be considered the foundation of the modern action for mali- cious prosecution. 1 "Where two cause a man to be indicted, if it be false and malicious, he shall have conspiracy; where one he shall have case." He observed that, in strictness, conspiracy lay only for falsely indicting of treason or felony where life was in danger, and he pointed out that in conspiracy the jury could not convict less than two defendants; whereas in case, if there were more defendants than one, a verdict could be given against one only (d). Holt declared the conspiracy itself to be the " ground " of the action of conspiracy, while the ground of the action in case was (ft) 33 Ed w. 1, st. 2. (c) 22 As. 77; Cox . Wirrall, Cro. Jac. 193. (tf) The same thing was decided in Price v. Crofts, Sir ,T. Raym. 180. 1 Where several conspire successfully to procure the plaintiff' to be convicted of crime by false testimony, the gist of the action is the alleged tort and not the alleged conspiracy: Caring v. Fraser, 76 Me. 37 (1884), Virgin, J. See Wright on Crim. Con.