But in the modern action on the case, where
conspiracy is charged, the allegation as a rule only means that
two or more persons were so far co-operating in their acts that
the act of any one was the act of all. Generally speaking, the
liability depends not on the co-operation or conspiring, but on
the character of the acts done, supposing them all to be done by
one man, or irrespective of the question whether they were done
by one or several. There may be cases, to be sure, in which the
result could not be accomplished, or the offence could not
ordinarily be proved, without a combination of several; as, for
instance, the removal of a teacher by a school board. The
conspiracy would not affect the case except in a practical way,
but the question would be raised whether, notwithstanding the
right of the board to remove, proof that they were actuated by
malevolence would not make a removal actionable. Policy, it might
be said, forbids going behind their judgment, but actual evil
motives coupled with the absence of grounds withdraw this
protection, because policy, although it does not require them to
take the risk of being right, does require that they should judge
honestly on the merits. /1/
Other isolated instances like the last might, perhaps, be found
in different parts of the law, in which actual malevolence would
affect a man's liability for his conduct.
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