COMMON LAW.

OFFENCE AT Selling by false measure is an indictable offence; selling under measure is ground only for a civil action, Cowp. 324. Ante, 556. The selling of bad wine, pretending it to be good, has been holden indictable, 2 Ld. Raym. 1179; but Lord Ellenborough has suggested that this was a case of conspiracy, or is only to be supported on the ground, that the wine sold was unwholesome for man, 6 East, 133. 4 M. & S. 220; and see ante, 556. Using false dice is an indictable offence at common law, as a common gamester is a public nuisance, 2 Rol. Abr. 78. Cro. Jac. 497. Ante, 681; and the legislature have, by 16 Car. 2. c. 7, and 9 Ann. c. 14, further punished it with pecuniary forfeiture. See ante, 681. Cheating at a race is indictable at common law, 6 Mod. 42. If a minor go about town, and pretending to be of age, defraud a great many persons by taking credit for considerable quantities of goods, and then insist on his non-age, he may be indicted as a common cheat, Barl. 100. And all frauds affecting public justice or the crown, are regarded as criminal. Thus, personating bail, and pretending to be an object of relief at a public asylum, are indictable offences. The former is, by 4 W. & M. c. 4. s. 4, made a clergyable felony. So if the captain and purser of a man of war deliver to the commissioners for victualling the navy a false bill of exchange, false accounts, certificates and vouchers, they may be indicted for an offence against the interests of the public service, 4 East Rep. 171, 2. Where a person falsely pretending he had power to discharge soldiers, took money of a soldier to discharge him, he was held indictable, 1 Latch, 202. The supplying prisoners of war with unwholesome food on a contract is criminal, being as we have already seen an offence against the public health, 6 East, 193,6. Ante, 556. It seems also, that an indictment will lie against a clergyman for embezzling and misapplying money collected on a brief for the relief of sufferers by fire, 1 Bla. Rep. 443, sed quære. And if an apprentice enlist in order to obtain the bounty money, knowing that he must be discharged as incompetent to serve, he is guilty of a misdemeanor at common law, 1 Leach, 174. On the trial for this offence, the indenture must be proved by one of the subscribing witnesses, id. ibid.

2. Offence by Statute.

statutes.

The common law being inadequate to the punishment of Offence of cheatmany cases of highly injurious fraud, it was provided by the ing and fraud by 33 Hen. 8. c. 1, after reciting "that many light and evil-disposed persons, not minding to get their livings by truth, according to the laws of this realm, but compassing and devising daily how they may unlawfully get into their hands and possession, goods, chattels, and jewels of other persons, for the maintenance of their unthrifty living, and also knowing, that if they come to any of the same goods, chattels, and jewels by stealth, that then they, being thereof lawfully convicted according to the laws of this realm, shall die, therefore, have now of late falsely and deceitfully contrived, devised, and imagined privy tokens and counterfeit letters in other men's names, under divers persons, their special friends and acquaintances, for the obtaining of money, goods, chattels, and jewels of the same persons, their friends and acquaintances; by colour whereof the said light and evil-disposed persons have deceitfully and unlawfully obtained and gotten great substance of money, &c. into their hands and possession, contrary to right and conscience," enacts, "that if any person falsely and deceitfully obtain or get into his hands or possession any money, goods, chattels, jewels, or other things of any other person, by colour and means of any such false token or counterfeit letter, made in any other man's name as is aforesaid, that then every person so offending, and being thereof lawfully convicted, by witnesses taken before the Lord Chancellor of England, for the time being, or by examination of witnesses, or confession. taken in the Star Chamber at Westminster, before the king's most honorable council, or before the justices of assize in their circuits for the time being, or before the justices of peace within any part of the king's dominions in their general sessions, or by action in any of the king's courts of record, shall have and suffer such correction and punishment, by imprisonment of his body, setting upon the pillory, (abolished by 56 Geo. 3. c. 138,) or otherwise, by any corporal pain, (except pain of death) as shall be unto him limited, adjudged, or appointed by the person before whom he shall be so convicted of the said offences, or of any of them." The effect of this statute seems to be, to make a fraud on an individual by means of privy tokens, a misdemeanor, whereas, to make it so at common law, we have seen, that the deceit must affect the public interests. And therefore, where it is said that this act created no new offences

OFFENCE

BY STATUTE.

but only enhanced the punishment of such as previously existed, it must be understood of "counterfeit letters," which were always indictable as forgeries, 2 Ld. Raym. 1466. Some difficulty has arisen as to what shall be considered as a token. It is clearly not a mere affirmation or promise, but must be something real and visible-as a ring, a key, or a writing. And even a writing would not suffice, except it was in the name of another, or so framed as to afford more credit than the mere assertion of the party defrauding, 2 East P. C. 689. It does not extend to cases where a man procures goods on his own account, with intent to steal them, id. ibid. So letters declaring a falsehood with intent to defraud are not privy tokens within the statute, 2 Burr. 1128. And we have seen, that at common law, it was holden, that the obtaining of property, by giving a check on a banker, where the party had no account, is not an indictable fraud, 6 T. R. 565. But, the reverse bas been recently holden on a case precisely similar, on the statute 30 Geo. 2. c. 24. 3 Campb. 370.

To supply the defects of 33 Hen. 8. which we have seen would not apply to any verbal representation, the 30 Geo. 2. c. 24. s. 1. enacts "That all persons who knowingly and designedly, by false pretence or pretences shall obtain from any person or persons money, goods, wares, or merchandizes, with intent to cheat or defraud any person or persons of the same, shall be deemed offenders against law and the public peace, and the court before whom such offenders shall be tried shall, on conviction, order them to be fined and imprisoned, or to be put in the pillory, (abolished by 56 Geo. 3. c. 138) or publicly whipped, or to be transported for seven years, as the court shall think fit." The second section empowers any justices of the peace to bail or commit a person accused before them till the next sessions or assizes, and to bind over the witnesses to prosecute in such sum as they may think reasonable, not less than double the value of the property if it exceed twenty pounds. The 20th section provides that no certiorari shall be allowed to remove any indictments under this statute. The term "false pretences" used in this act is very general; it includes every expression used in 33 Hen. 8. and further includes every extortion of money or goods with an intent to defraud, 3 T. R. 103; and therefore, it will not avail the defendants that the pretence consists in a false representation of something to take place at a future time, as that a bet had been laid that a certain pedestrian feat would be performed, for it is equally within the intention

of the statute, 3 T. R. 98. So if a man be authorized to inspect
and pay a number of journeymen, and to draw on the clerk of
the masters for the amount of the sums earned, and he delivers in
a false account, and draws on the clerk for the amount in such
false account, he will be guilty under the statute; as he would
never have obtained the credit, unless he had delivered his ficti-
tious estimate, 2 East P. C. 830. And if a carrier obtains
money by pretending to have delivered goods and to have lost
the receipt given him by the person to whom they were directed,
he may be indicted for the statutable offence, 2 East Rep. 30.
So if a person procuring a tradesman to sell him goods as for
ready money, direct him to send his servant with them to his
lodgings, and then deliver fabricated bills in payment, retaining
the goods, though he cannot be prosecuted for felony in steal-
ing them, he may be found guilty of obtaining them by false
pretences, 2 Leach, 614. It seems, that obtaining money from
the county treasurer by a forged order, purporting to be signed
by a magistrate, for payment of expences of conveying vagrants,
is an offence within the act, 1 Burn, J. 24th edit. 591. Russ. &
Ry. C. C. 317. 1 Stark. C. N. P. 396. S. C. A mere
pretence that the party would do an act which he did not
mean to do (as a pretence to pay for goods on delivery, is
not a false pretence within the act, Russ. & Ry. C. C. 461.
The King v. Clifford, K. B. 1824. S. C. The pretence must
be for the purpose only of obtaining the property, and in
a late case it was held that a pretence to a parish officer, as
an excuse for not working, that the party had not clothes, when
he really had, though it induced the officer to give him clothes,
was not obtaining goods by false pretences within the act,
Russ. & Ry. C. C. 504. There may be a sufficient false pretence
within the statute, by the acts and conduct of the party, without
any verbal misrepresentations; and, therefore, it has been held that
where the prisoner obtained mouey from the keeper of a post-
office, by assuming to be the person mentioned in a money order,
which he presented for payment, though he made no false
declaration or assertion in order to obtain the money, it was a
false pretence within the act, Russ. & Ry. C. C. 81; and it has
been also held that the fact of uttering a counterfeit note as a
genuine one, is tantamount to a representation that it was one,
Russ. & Ry. C. C. 127. Lawrence, J. diss. It has been
questioned whether an attempt to obtain money by a false pre-
tence is indictable, Russ. & Ry. C. C. 107, notes. 1 Burn, J.
24th edit. 591. S. C. see 6 East, 464. We have already seen
when a party should be indicted for obtaining property under
false pretences, instead of for a larceny, ante, 919 a.

OFFENCE

BY STATUTE.

OFFENCE

BY STATUTE.

[ 999 ] Indictment,

The acts both of 33 Hen. 8. and 30 Geo. 2. are confined to money, goods, and chattels, and do not, at least in words, extend to securities and choses in action; and therefore the 52 Geo. 3. c. 64. extends the provisions of the latter act to bonds, bills of exchange, bank notes, all securities and orders for the payment of money, or the transfer of goods or any valuable thing whatsoever. The summary, therefore, of the law on this subject seem to be, that at common law, those cheats only were indictable which affected the public at large; that the 33 Hen. 8. made all such frauds on individuals criminal as were effected by privy tokens, and by which either money or goods were obtained; that the 30 Geo. 2. c. 24. rendered indictable every kind of false pretence, by which money, goods, and chattels are obtained; and that the 52 Geo. 3. finally rendered every description of fraud by false pretences criminal, whatever kind of valuable property the deception was intended to obtain.

There are some other statutes respecting particular persons and kinds of property which have been for the most part noticed, as forming a species of larceny. Among these are frauds by lodgers, manufacturers, servants of public companies, persons employed in the post-office, and the embezzlement of naval stores, or improperly having them in possession. Besides these, the 13 Eliz. c. 5. avoids all fraudulent deeds, conveyances, &c. intended to defraud creditors, and punishes them with the forfeiture of one year's profit of the alienated lands and imprisonment for half a year. And the 27 Eliz. c. 4. makes the same provision for all cases in which the intent is to defraud purchasers. The offence of cheating with dice, &c. under 9 Ann. c. 14. s.5. has been already considered as an offence against public police, ante, 677, 8; and as to the offence of personating bail, see post, 1081, personating seamen, post, 1082, and other false personatings, id.

With respect to the venue the general rules relating thereto will be found in vol. i. 177 to 202. In general the venue in an indictment on the 30 Geo. 2. should be laid where the money was obtained, and not where the false pretences were used, 4 Barn. & Ald. 179.

Several persons may be jointly indicted under any of the statutes of fraud and false pretences. And where the pretence is conveyed by words, spoken by one defendant in the presence