ferent con effected in the course of private transactions between individuals, under a diffall under a different consideration. This distinction, however, sideration. does not appear to have been at all times properly noticed: and, in a book of great authority, cheats, punishable at common law, are defined as "deceitful practices in defrauding or endeavouring "to defraud another of his known right by means of some artful "device contrary to the plain rules of common honesty." (g) But this definition has been observed upon as not sufficiently distinct or accurate; and many of the authorities, from whence it seems Unless they to have originated, not involving considerations, either of public amount to justice, public trade, or public policy, have been said to be founded conspiracy or forgery, which either in conspiracy or forgery, which are, in themselves, sub- are substanstantive offences, and the latter of which was usually, when tive offences. successful, prosecuted as a cheat, before the various modern statutes, by which forgerics are, in so many instances, made capital offences. (r) pro conspiracy. Thus the case mentioned where the suppression of a will was Cases of cheats holden to be indictable as a cheat, (s) is said to have been amounting to bably a case of conspiracy or combination. (t) And the same explanation is given (u) of the case where several persons were indicted for causing an illiterate person to execute a deed to his prejudice, by reading it over to him in words different from those in which it was written: (v) and also of the case of a person who was convicted upon a charge of having run a foot race fraudulently, and with a view to cheat a third person, by a previous understanding with the running competitor to win. (x) bourgh's case. son pretended In another case of a cheat at common law, which has undergone Macarty and considerable discussion, the indictment charged the two defend- Fordenants, Macarty and Fordenbourgh, that they falsely and deceit- Cheat effully intending to defraud one Chowne of divers goods, together fected by a deceitfully bargained with him to barter, sell, and exchange a conspiracy; certain quantity of pretended wine, as good and true new Portugal where one perwine, of him the said Fordenbourgh, for a certain quantity of hats, to be a merof him the said Chowne; and upon such bartering, &c. the said chant, and the Fordenbourgh pretended to be a merchant of London, and to and, as such, trade as such in Portugal wines, when, in fact, he was no such bartered bad merchant, nor traded as such in wines: and the said Macarty, on such bartering, &c. pretended to be a broker of London, when, in fact, he was not: and that Chowne, giving credit to the said fictitious assumptions, personating, and deceits, did barter, sell, and (q) 1 Hawk. P. C. c. 71. s. 1. (r) 2 East. P. C. c. 18. s. 2. et sequ. p. 817. et sequ. The distinction between forgery and the general class of cheats was well settled in Ward's case, Hil. T. 13 G. 1. 2 Ld. Raym. 1461. 2 Str. 747. 2 East. P. C. c. 19. s. 7. p. 860, S61. It was there shewn to be immaterial to the offence of forgery, properly so called, whether any person were prejudiced or not, provided any might have been prejudiced but that to constitute a cheat, properly so called, there must be a prejudice received both at com- (s) 1 Hawk. P. C. c. 71. s. 1. citing (v) Rex v. Skerrett and Others, 1 (x) Rex v. Orbell, 6 Mod. 42, cited in the note to 1 Hawk. P. C. c. 71. s. 1. other a broker; wine for hats. Govers's case. Cheat effected by means of a ment. exchange, to Fordenbourgh, and did deliver to Macarty, as the broker between Chowne and Fordenbourgh, for the use of Fordenbourgh, a certain quantity of hats, of such a value, for so many hogsheads of the pretended new Portugal wine; and that Macarty and Fordenbourgh, on such bartering, &c. affirmed that it was true new Lisbon wine of Portugal, and was the wine of Fordenbourgh, when, in fact, it was not Portugal wine, nor was it drinkable or wholesome, nor did it belong to Fordenbourgh; to the great deceit and damage of the said Chowne, and against the peace, &c. (y) Upon this case considerable doubts were entertained; but it seems that, ultimately, judgment was given for the crown, and that the true ground of such judgment was, that it was a case of conspiracy. (z) And, even if it were not a case of conspiracy; yet, as the cheat was effected by means of bartering pretended port wine, which the indictment alleged was not wholesome, or fit to drink, the vending of such an article for drinking was clearly indictable; (a) and within the principle already mentioned, of cheats or frauds, by which the public may be affected. (b) In one of the principal cases where the cheat was effected by means of a forged instrument, the indictment charged that the defendant, intending to cheat J. S., did deceitfully take upon himforged instru- self the stile and character of a merchant, and did deceitfully affirm to J. S. that he was a merchant, and had received divers commissions from Spain; and, in order to induce J. S. to believe the same, and to give him credit, the defendant deceitfully produced to J. S. several paper writings, which he falsely affirmed to be letters from Spain, containing commissions for jewels, watches, and other goods, to the amount of 4,0007.; by means whereof the defendant got into his hands two watches, the property of J. S., whereas, in truth, the defendant was not a merchant; and the paper writings, containing such commissions, were false and counterfeit. And it does not appear that the indictment concluded against the form of the statute, though the false tokens. made use of came directly within the stat. (now repealed) 33 Hen. 8. c. 1. (c) But it is observed, that if this were sustained as an indictment at common law, the fraud being practised in a private transaction, and the false tokens mere private letters, having no (y) Reg. v. Macarty and Fordenbourgh, 2 Lord Raym. 1179. 3 Lord Raym. 487. 2 Burr. 1129. (z) 2 Lord Raym. 1184. 2 Burr. 1129. 2 East. P. C. c. 18. s. 1. p. 824. Upon a recent discussion of this case, (in Rex v. Southerton, 6 East. 133,) it was objected to such construction that the word conspired, was not in the indictment; but in 2 East, P. C. ub supr. it is said that, though the indictment did not charge that the defendants conspired, eo nomine, yet it charged that they, together, &c. did the acts imputed to them; which might be considered to be tanta mount. (a) By Lord Ellenborough, C. J., in Rex v. Southerton, 6 East. Rep. 133. (b) Ante, 285, et sequ. The sale of corrupted wine, contagious or unwholsome flesh, &c. is prohibited by an ancient statute, 51 Hen. 3. stat. 6., and the ordinance for bakers, c. 7. under severe penalties. And, by the stat. 12 Car. 2. c. 25. s 11. any brewing or adulteration of wine is punished with the forfeiture of 100%. if done by the wholesale merchant, and 401. if done by the vintner, or actual trader. See 4 Black. Com. 162. (c) Rex v. Govers, 2 Say. 206. 2 East. P. C. c. 18. s. 6. p. 824, 825. semblance of public authenticity, the only ground on which the judgment can be maintained, without going the length of saying that the repealed stat. of 33 Hen. 8. c. 1. was merely declaratory of the common law, is, that the cheat was effected by means of a forgery, (in which all are principals at common law;) and that the publication of such forged instruments, for the purpose of deceit, was in itself a substantive offence, indictable at common law. (d) And, in a case where the defendant was indicted for falsely and deceitfully obtaining 4507. from one W. Harle, by a false token, viz. a promissory note, in the name of R. Hales, payable to J. E., &c. with a counterfeit indorsement thereon, the jury were directed that they must find the defendant guilty if it peared to be a forged instrument; the instrument being a false token. (e) But a forgery could not, it seems, be prosecuted at common law as a cheat, unless it were successful; as in a case where the defendant was convicted of forgery at common law of an acquittance, the court said, that there was no reason why the offence should not be punished as a forgery, as well as if the thing fabricated had been a deed, but that it could not be prosecuted as a cheat at common law without an actual prejudice, which was an obtaining on the statute 33 Hen. 8. (ƒ) 66 ap It does not appear, therefore, that these cases, when duly examined, are contrary to that which has been given as a more accurate definition of cheats and frauds, punishable at common law, namely, "The fraudulent obtaining the property of another, by any deceitful and illegal practice or token, (short of felony,) "which affects or may affect the public." (g) And there are many cases by which it is supported; tending to shew, that a cheat or fraud, effected by an unfair dealing and imposition on an individual, in a private transaction between the parties, cannot be the subject of an indictment at common law. means of a bare transaction, holden not to be indictable. In several of these cases of impositions upon individuals in pri- Cheats by vate transactions, which have been holden not to be indictable, lie, or false the cheat was effected by a mere false affirmation, or bare lie. affirmation, in Thus an indictment was quashed, upon motion, which charged a private the defendant with selling at market a sack of corn, which he falsely affirmed to be a Winchester bushel, whereas it was greatly deficient; and the court said, that this was no more than telling a lie.(h) And an indictment was also quashed which charged the defendant with selling to a person eight hundred weight of gum, at the price of seven pounds by the hundred weight, falsely pretending and affirming that the gum was gum seneca, and that it was worth seven pounds by the hundred weight; whereas, in (d) 2 East. P. C. c. 18. s. 6. p. 825. (e) Hales's case, cor. Pengelly, C. B., and other Judges, 1729. 9 St. Tri. 75. 2 East. P. C. c. 18. s. 6. p. 825.: a case of misdemeanor at common law, before the statute making the offence felony. Ward's case, 2 Str. 749. And see further the authorities collected upon this subject in 2 East. P. C. c. 18. s. 2. p. 817, note (a), and Id. s. 6. p. 825. (g) 2 East. P. C. c. 18. s. 2. p. 818. (h) Pinckney's case, 2 East. P. C. c. 18. s. 2. p. 818., cited in 2 Burr. 1129. But see ante, 290; that this case might have come under a different consideration if the vendor had fraudulently measured the corn. And the same construction will prevail, though an upparent token be used, if it be of no more credit than the party's own assertion. Lara's case; where the defendant gave a check upon his banker, which he knew he had no authority to draw, and that it would not be paid. truth, the gum was not gum seneca, but a gum of an inferior kind, and was not worth more than three pounds by the hundred weight. () And a case was holden not to be indictable where the defendant obtained money of another, by pretending that he was sent by a third person for it: and Holt, C. J. said, "Shall we indict one man for making a fool of another? Let him bring his action." (k) In another case the indictment set forth, that the defendant came to the shop of a mercer, and affirmed that she was a servant to the Countess of Pomfret, and was sent by her from St. James's to fetch silks for the queen, endeavouring thereby to defraud the mercer; whereas, in fact, she was no servant of the Countess of Pomfret, nor was sent upon the queen's account : and it was moved in arrest of judgment that this was not an indictable offence, there being no false token, nor any actual fraud committed; and the Court arrested the judgment, saying that the case was no more than telling a lie. (7) And it appears that the same construction will prevail, though the defendant make use of an apparent token; which in reality is, upon the very face of it, of no more credit than his own assertion. () An indictment at common law charged that the defendant, deceitfully intending, by crafty means and devices, to obtain possession of certain lottery tickets, the property of A., pretended that he wanted to purchase them for a valuable consideration, and delivered to A. a fictitious order, for payment of money, subscribed by him the defendant, &c. purporting to be a draft upon his banker for the amount, which he knew he had no authority to draw, and that it would not be paid; but which he falsely pretended to be a good order, and that he had money in the banker's hands, and that it would be paid; by virtue of which he obtained possession of tickets, and defrauded the prosecutor of the value. And the defendant having been convicted, the Court of King's Bench arrested the judgment. Grose, J. said, "That, in order to "make this case something more than a bare naked lie, it had "been said that the defendant used a false token, for that he gave a check on his banker; but that was only adding another lie; "and that if the Court should determine that this case was in"dictable, he did not know how to draw the line; for it might "equally be said that every person who overdrew his banker used (i) Rex v. Lewis, Say. 205. Indictments quashed upon motion may be considered as authorities; but no stress can be laid on several cases to be found in the books, particularly in Mod. Rep., where indictments of this kind were refused to be quashed upon motion, because it was the practice of the court, as often declared, not to quash on motion indictments for offences founded in fraud or oppression, but leave the defendants to plead; 2 East. P. C. c. 18. s. 2. p. 818. note (a), citing 5 Mod. 13. 6 Mod. 42. 12 Mod. 49. (k) Reg. v. Jones, 1 Salk. 379. 2 Lord Raym. 1013. And see also Reg. v. Hannon, 6 Mod. 311, and 2 Hawk. P. C. c. 71. s. 2.; and Nehuff's case, Salk. 151., where the defendant borrowed 6007. of a feme covert, and promised to send her fine cloth and gold dust, as a pledge, and sent no gold dust, but some coarse cloth, worth little or nothing; and the Court said that it was not a matter criminal, and that it was the prosecutor's fault to repose such a confidence in the defendant. (1) Rex v. Bryan, 2 Str. 866. In the case as cited in 2 East. P. C. c. 18. s. 2. p. 819., it is said that the defendant obtained the goods. (m) 2 East. P. C. c. 18. s. 2. p. 819. Wilders'scase; where the de fendant sent vessels of ale marked, as certain mea containing a "a false token, and might be indicted for it." Lawrence, J. said, "It is admitted that a mere false assertion, unaccompanied by a "recommendation, is not indictable; and, I think, there is nothing "in this case beyond the defendant's own false assertion." (n) So in a case where the defendant, a brewer, was indicted for a cheat, in sending to the keeper of an alehouse so many vessels of ale, marked as containing such a measure, and writing a letter to him, assuring him that they did contain that measure, when, in fact, they did not contain such measure, but so much less, &c.; the indictment was quashed upon a motion, after argu- sure; and ment, as containing no criminal charge. (o) Foster, J., indeed doubted concerning this case when it was cited, because it seemed to him that the vessels being marked as containing a greater quantity than they really did, were false tokens. (p) But as it does not appear that cheating, by means of mere private or privy tokens, was punishable at common law, without the aid of the statute (now repealed) of 33 Hen. 8. c. 1. (q) it is well observed, upon this doubt of the learned Judge, that possibly the Court, in deciding the case, thought that those marks, not having even the semblance of any public authority, but being merely the private marks of the dealer, did, in effect, resolve themselves into no more than the dealer's own affirmation, that the vessels contained the quantity for which they were marked. (r) a wrote a letter, affirming that the vessels did contain such measure. Channell's case. The defendant, a corn; but this dicet in Selling Where an indictment charged the defendant; for that he, keeping a common grist-mill, and being employed by one Bare to grind three bushels of wheat, did, with force and arms, unlawfully take and detain forty-two pounds weight of wheat; judgment was given for the defendant upon a demurrer, there being no actual price laid, nor any charge of taking as for anreasonable toll; and it being matter of a private nature, for which an action would lie. (s). a private naThe following case has been considered to have clearly estabture, not dictable. lished the true boundary between those frauds that are, and those Wheatley's that are not indictable at common law. (t) The defendant, a case. brewer, was charged, by an indictment at common law, for that sixteen galhe, intending to deceive and defraud one Richard Webb of his lons of liquor money, falsely, fraudulently, and deceitfully, sold and delivered to eighteen, him sixteen gallons of amber, for and as eighteen gallons of the holden to be same liquor, and received fifteen shillings, as for eighteen gallons, dealing, and knowing there were only sixteen gallons. And this was holden imposition on clearly not to be an indictable offence, but only a civil injury, for an individual, which an action lay to recover damages. Lord Mansfield, C. J., dictable of said, "It amounts only to an unfair dealing, and an imposition on fence at com"this particular man, by which he could not have suffered but mon law. " from his own carelessness, in not measuring the liquor when he (n) Rex v. Lara, 1796, 6T. R. 565. 2 Leach 652. 2 East. P. C. c. 18. s. 2. p. 819. But see in Rex v. Jackson, post. a different doctrine laid down upon an indictment on the statute 36 Geo. 2. c. 24. as to a check drawn on a banker with whom the party keeps no cash. (0) Rex v. Wilders, cited by Ld. Mansfield, and supplied by Denison, J., in Rex v. Wheatley, 2 Burr. 1128. (q) 2 East. P. C. c. 18. s. 9. p. 833, (r) 2 East. P. C. c. 18. s. 3. p. 820. (t) By Ld. Kenyon, C. J., in Lara's instead of only an unfair and not an in |