common law. 1 Leach, 174. On the trial for this offence, the indenture must be proved by one of the subscribing witnesses. id. ibid.

Offence of cheating and fraud by sta. tutes.

2. Offence by Statute.

The common law being inadequate to the punishment of many cases of highly injurious fraud, it was provided by the 33 Hen. VIII. 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 color 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 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 misdemeanour, whereas, 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, 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 false hood 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 has been recently holden on a case precisely similar, on the statute 30 Geo. II. c. 24. 3 Campb. 370.

To supply the defects of 33 Hen. VIII. which we have seen would not apply to any verbal representation, the 30 Geo. II. 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, 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 he 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. 10S. 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 Crim. Law. VOL. III.

2 E

be authorised 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 which he obtains, he will be guilty under the statute; as he would never have obtained the credit, unless he had delivered his fictitious 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 procure 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 stealing them, he may be found guilty of obtaining them by false pretences, 2 Leach, 614. But the acts both of 33 Hen. VIII. and 30 Geo. III. 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. III. 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 seems to be, that at common law, those cheats only were indictable which affected the public at large; that the 33 Hen. VIII. 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. II. c. 24. extended the means of deceit thus made indictable to every kind of false pretences, by which money, goods, and chattels, were obtained; and that the 52Geo. III. 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 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.

Several persons may be jointly indicted under any of the statutes Indictment. of fraud and false pretences. And where the pretence is conveyed by words spoken by one defendant in the presence of others in concert with whom he is acting, all of them may be included in one proceeding. One indictment may also include several charges; so that the judgment on them would be similar, 3 T. R. 98. Both at common law, and on the 33 Hen. VIII. it was necessary to set forth the means or false tokens by which the fraud was effected, 2 Mod. 316. 2 Stra. 1127. And it has been repeatedly decided, that in all indictments on 30 Geo. II. it is necessary to set forth the false pretences employed by the defendant as they will appear at the trial, 2 T. R. 581. 1 Campb. 495. In this statement it will be necessary to observe all possible accuracy; for where it was alleged that the defendant said he had paid a sum of money into the bank of England, and it was proved in evidence that he merely alleged "the money has been paid at the bank," the variance was holden fatal, 1 Campb. 494. But a basket is sufficiently described in the proceedings, under the general term " parcel” 1 Campb. 212.; and it does not seem necessary to describe the false pretences with greater minuteness than that with which they were presented to the mind of the party injured at the time the imposition was practised upon him, 3 T. R. 102. On general principles, it seems necessary, not only to set forth the circumstances so as to show on the record that the offence is such an one as the legislature intended to punish, but also to describe it in the technical words used in the provision. It has, however, been holden in an indictment on 39 Hen. VIII. that it is not necessary expressly to allege that the fraud was effected by means of a privy token, if that be a necessary inference from the facts which specially appear, Cro. Car. 564. At the present day this seems doubtful. It is, however, certain that on 30 Geo. II. it is sufficient, after stating the circumstances of the deceit to aver "by means of which said false pretences the defendant unlawfully, knowingly, and designedly obtained from the party injured the goods, &c. with intent to cheat him of the same," and afterwards to negative the truth of the pretences employed without any formal allegation that they are false, 2 East, Rep. 30. But there must be an absolute negative of the truth of all the pretences employed; and it is not sufficient to charge that the defendant falsely pretended, &c. setting forth the means used, and then to aver that by means of such false pretences he obtained the property; but the absolute negative must be given to all the assertions of the party indicted, as in an assignment of perjury, 2 M. and S. 379.

The punishment of the defendant when convicted is prescribed The punish

ment.

a

by the different statutes creating the offence: it is at least as severe as in cases of simple larceny. But when goods have been obtained by mere fraud, the court have no power, as in case of felony, to award restitution to the owner, 2 Leach, 585. 5 T. R. 175.

For selling by false weights

and measures. (1).

INDICTMENTS FOR DECEIT AND FALSE

PRETENCES, AT COMMON LAW.

Essex, to wit. That J. H. late of, &c. on, &c. and from thence until the taking this inquisition, did use and exercise the trade and business of a shopkeeper, and during that time did deal in the buying and selling by weight of divers goods, wares, and merchandizes, to wit, at, &c. aforesaid; and that the said J. H. being a person of wicked and depraved mind, and contriving and fraudu lently intending to cheat and defraud the subjects of our said lord the king, whilst he used and exercised his said trade and business, to wit, on the said, &c. and on divers other days and times between that day and the day of taking this inquisition, at, &c. aforesaid, did knowingly, wilfully, and publicly keep in a certain shop there, wherein he the said J. H. did so as aforesaid carry on his said trade, a certain false pair of scales for the weighing of goods, wares, and merchandizes, by him sold in the way of his said trade, which said scales were then and there by artful and deceitful ways and means so made and constructed as to cause the goods, wares, and merchandizes weighed therein and sold thereby, to appear of greater weight than the real and true weight by one eighth part of such apparent weight; and that the said J. H. on, &c. aforesaid, at, &c. aforesaid, (he the said J. H. then and there knowing the said scales to be false, as aforesaid,) did knowingly, willingly, and fraudulently sell and utter to one G. H. a subject of our said lord the king, certain goods in the way of his said trade, to wit, a large quantity of flour weighed in and by the said false scales, as and for fifty

(b) See general note, ante 996 to 1000 and see similar precedents, 6 Wentw. 389. Starkie, 467. For selling beer in casks short of measure, 6 Wentw. 389. Indictments for selling goods with counterfeit marks, Trem. P. C. 103, 6. For selling counterfeit Dutch guilders as real, Cro. C. C. 282. 7th Ed. Selling a brass chain for gold, id. 283. which indictments seem not

to be maintainable, ante 996,7. The indictment for selling bad wine given, 2 Ld. Raym. 1179. Cro. C. A. 414. 2 Starkie, 468, was either a case of conspiracy or held sustainable on the ground of the injury to public health, 8 East, 133, 6. See indictments for fraudulently gaming, ante 677,8. Selling unwholesome provisions, ante 559.