prove the notes necessary to notes, and upon this assurance the prosecutor parted with the were bad, and gelding. It further appeared, that these notes had never been presented by the prosecutor at Oundle, or at Sir James Esdaile's, in London, where they were made payable. of no value. Airey's case. Where a carrier pretended to a consignor of goods that he had delivered them to the consignee, and thereby obtained money for the carriage, it was holden that the offence was within the 30 Geo. 2. c. 24. now repealed. Coleman's case. Pre tence of being sent by a neighbour to borrow money. Fraudulently obtaining goods by giving in payment a cheque upon a banker with whom the A witness stated, that he recollected Rickett's bank at Oundle, that he knew nothing but what he saw in the papers, and heard from people who had bills there. The notes appeared to have been exhibited under a commission of bankrupt against the Oundle bank; the words importing the memorandum of exhibit, had been attempted to be obliterated; but the names of the commissioners remained on each of them. The jury found the prisoner guilty; and said, they were of opinion, that when he bargained for, and obtained the horse, he well knew that the notes were of no value, and that it was his intention to cheat the prosecutor of his horse. But the learned Judge respited the judgment, and submitted the case to the consideration of the Judges, who held the conviction wrong; being unanimously of opinion, that the evidence was defective, in not sufficiently proving that the note was bad. No opinion was given whether this would have been an indictable fraud, if the evidence had been sufficient. (m) In a case where the defendant was charged in an indictment that he, being a common carrier, had received goods to carry and deliver at a certain place; and that afterwards contriving and intending to cheat the consignor of his money, he pretended to him that he had carried and delivered the goods to the consignee, and that the consignee had given to him (the said carrier) a receipt expressing the delivery of the goods; but that he had lost, or mislaid, the receipt; and then demanded sixteen shillings for the carriage of the goods, and by means of such false pretences, (which were expressly stated to be false) obtained the sum of sixteen shillings from the consignor, it was holden that the offence was sufficiently brought within the words and meaning of the statute. (n) Where the prisoner went to a tradesman's house, and said she came from a Mrs. Cook, a neighbour, who would be much obliged if he would let her have half-a-guinea's worth of silver, and that she would send the half-guinea presently; upon which she obtained the silver, went away with it, and never returned; the case was holden not to amount to felony. (o) And it is said that, in truth, this was a loan of the silver, upon the faith that the amount would be repaid at another time; it was money obtained by a false pretence; and that the same determination has been made in similar cases at the Old Bailey. (p) We have seen, that it was holden that an indictment for a cheat or fraud at common law could not be supported against a person for delivering a draft on a banker, which he knew he had no authority to draw, and would not be paid, and thereby obtaining certain lottery tickets. (q) But a different doctrine appears to (m) Rex v. Flint, December 1821, (n) Rex v. Airey, 2 East. R. 30. Leach 303, note (a). (p) 2 East. P. C. c. 16. s. 104. p. 673. (9) Rex v. Lara, ante, 294. which he have been laid down in a case of an indictment on the repealed party keeps no statute 30 Geo. 2. c. 24. The prosecutor was a jeweller at Chel-cash, and tenham, who was defrauded of goods to a considerable value by knows will the defendants. Among other things, for the purpose of deceiving not be paid. him, they gave him in payment for the goods a cheque upon certain bankers in London, with whom it was proved they kept no cash, and had no account. It was contended on behalf of the defendants, that as far as the cheque was concerned, they were not criminally liable. But Bayley, J., is reported to have said, "This point has recently been before the Judges; and they were all of "opinion, that it is an indictable offence, fraudulently to obtain "goods by giving in payment a cheque upon a banker with whom "the party keeps no cash, and which he knows will not be paid." And the defendants were convicted and sentenced to seven years' transportation. (r) It was said, that though a man cannot be guilty of forgery, merely by passing himself off for the person whose real signature appears to a written instrument, although for the purpose of fraud, and in concert with such real person, there being no false making, yet that this appeared to be a false pretence within the statute 30 Geo. 2. c. 24. (s) Several points were ruled in a modern case, upon the same repealed statute 30 Geo. 2. c. 24. The indictment charged that the defendant having in his custody and possession a certain parcel, to be by him delivered to Maria, countess dowager of Ilchester, upon the delivery of which he was authorised and directed to receive and take the sum of six shillings and sixpence and no more, for the carriage and porterage of the same; yet that defendant produced and delivered to Thomas Harris, then being servant to the said Countess of Ilchester, the said parcel, together with a certain false and counterfeit ticket, made to denote that the sum of nine shillings and tenpence was charged for the carriage and porterage of the said parcel, and unlawfully, knowingly, and designedly, did falsely pretend to the said Thomas Harris, that the said false and counterfeit ticket was and true ticket, and that the said sum of nine shillings and tenpence had been charged, and was due and payable, for the carriage and porterage of the said parcel; and that defendant was authorised and directed to receive and take the said sum of nine shillings and tenpence for the carriage and porterage of the said parcel by means of which said false pretences, defendant did lawfully, knowingly, and designedly obtain of and from the said Thomas Harris the sum of three shillings and fourpence in monies, of the monies of the said Countess, with intent to cheat and de a just un tious person, the Judges held that it was immaterial whether such person existed or not, it being sufficient that the order on the face of it imported a right, on the part of the drawer, to direct such a transfer of his property. (s) 2 East. P. C. c. 19. s. 5. p. 856. Rex v. Douglass. Upon an indictment on it was holden a ed statute 30 Geo. 2. c. 24. that where the defendant, porter, dewith a basket of fish a false ticket, denot10d. instead of 6s. 6d. was livered along ing that 9s. was well deto be paid for it, the basket scribed in the that it would indictment as a parcel; but have been had been on a otherwise, if the indictment public local act, 39 Geo. 3. c. 58. which enumerates fraud her of the same: whereas in truth and in fact, &c. The baskets, pack delivering the parcel mentioned in the indictment, and receiving ages, parcels, &c. specifi cally. Where an inthe 30 Geo. 2. dictment on c. 24. averred nine shillings and tenpence, instead of that which he ought to have received, namely, six shillings and sixpence, was sufficiently brought home to the defendant. But it appeared that the parcel was a basket of fish: upon which it was contended on behalf of the prisoner, in the first place, that the indictment was not upon the statute 30 Geo. 2. c. 24. but upon a public local act, the 39 Geo. 3. c. 58. (t) by which it is enacted, that if any porter, or other person employed in the porterage or delivery of the "boxes, "baskets, packages, parcels, trusses, game, or other things,' mentioned in the act, shall demand or receive in respect of such porterage or delivery, any greater sum or sums, than the rates or prices thereinbefore fixed, such person shall for every such offence forfeit not exceeding twenty, nor less than five shillings; and that, being upon such act, the basket in question was not properly described as a parcel, that parcel was not a generic name, and that the indictment should have described the thing according to the fact. (u) Lord Ellenborough, C. J., was of opinion, that if the indictment had been upon the statute cited of the 39 Geo. 3. this would have been a fatal variance; but that, as the indictment was upon the 30 Geo. 2. c. 24. a basket answered the general description of a parcel well enough. In the next place it was objected that as the nine shillings and tenpence were paid to the defendant by the servant of the Countess of Ilchester, the indictment had improperly averred that the monies obtained by the defendant, namely, the three shillings and fourpence, were "the monies of the countess," though she had afterwards repaid the servant the whole sum of nine shillings and tenpence; that in fact the three shillings and fourpence never had been her's, and whether or not she was bound to reimburse her servant, this particular sum of three shillings and fourpence was at the instant the sole property of the servant. And upon this point Lord Ellenborough held, that the subsequent allowance by the obtained from countess of Ilchester did not make the money paid to the defendant her property at the time, that she was not chargeable for more than was actually due for the carriage of the basket, and that it depended upon herself whether she should pay the overplus. But the servant afterwards stated, that at the time of this transaction he had in his hands upwards of nine shillings and tenpence, the property of his mistress, which Lord Ellenborough considered sufficient to sustain the averment. In the last place it was objected, that as the offence certainly came within the 39 Geo. 3. c. 58. the defendant ought to have prosecuted on that statute: but Lord Ellenborough said, that the remedy given by considered that statute was cumulative, and did not take away the remedies fatal: but the which before existed either at common law, or by other acts of objection was removed upon parliament. (x) that the de fendant, by false pretences, ob tained a sum of money, being the proper monies of A. and it ap peared in evidence that the money was B. acting as A.'s servant who had not at that time in his posses sion any mo ney belonging to A. but afterwards was repaid by him the sum de livered to the defendant, the variance was its appearing 66 (t) Entitled" an act for regulating "the rates of porterage to be taken by innkeepers, and other persons "within the cities of London and "Westminster, the borough of South "wark, and places adjacent." (u) See as to this objection, Cook's case, 1 Leach. 105. 2 East. P. C. 616. (c) Rex v. Douglas, cor. Lord Ellenborough, C. J., 1808.. 1 Campb. that delivered As to the statement of the false pretences in the indictment. By reference to the decisions upon the repealed statute 30 G. that B. had at 2. c. 24. it seems to be clear that the indictment the time in his upon the recent possession a statute 7 & 8 G. 4. c. 29. should state what the false pretences sum belonging are. (y) They should be set out, in order that the court may to A. equal to see what they are, and whether they come within the statute. (2) to the defendBut it does not appear to be necessary to describe them more ant. particularly than they were shewn or described to the party at the The local statime; and, in consequence of which, he was imposed upon and tute 39 Geo.3. it does not seem to be necessary to make any express allegation gives a cumuc. 58. only that the facts set forth shew a false pretence. (a) In a case upon lative remedy. the repealed statute where it was assigned for error that it was no where alleged in the indictment that the defendant "did falsely "pretend," the judgment was nevertheless affirmed. The indictment alleged, in substance, that the defendant unlawfully, knowingly, and designedly, pretended certain things, "by means of "which said false pretences" he obtained the money; and, in the subsequent part of the indictment, all the pretences were averred to be false: and the court held this to be sufficient. And it seems also to have been their opinion, that the indictment would have been good if it had only alleged that the defendant obtained the money by such and such pretences, (stating them ;) and then averred that those pretences were false. (b) But a special averment, that the pretences, or some of them, are false cannot be dispensed with; and, in a case upon the repealed statute, where it was omitted, and an exception taken on a writ of error, the judgment was reversed. The court considered the case by analogy to the necessary averments in an indictment for perjury, framed under the stat. 23 Geo. 2. c. 11., (c) and were decidedly of opinion that, where a party was charged with obtaining money, &c. by false pretences, and the matter charged as the pretence, contained more than one proposition, the indictment ought to announce the precise charge by distinct averments, and state in what particular such pretences are false. Lord Ellenborough, C. J., said, "To state merely the whole of the false pretence, is "to state a matter generally combined of some truth as well as "falsehood. It hardly ever happens that it is unaccompanied "with some truth. Suppose the offence, instead of being com"prized within five or six separate matters of pretence, as here, "had branched out into twenty or thirty, of which some might "be true, and used only as the vehicle of the falsity; are we to "understand from this form of charge that it indicates the whole "to be false, and that the defendant is to prepare to defend him"self against the whole? That would be contrary to the plain "sense of the proceeding, which requires that the falsification "should be applied to the particular thing to be falsified, and not 212. But qu. whether the offence (y) Rex v. Mason, 2 T. R. 581. s. 13. p. 837. (a) 2 East. P. C. c. 18. s. 13. p. 837, 838. Terry's case, Cro. Car. 564. (b) Rex v. Airey, 2 East. R. 30. ante, 306. (c) Post. Book V. Chap. on Perjury. As to the certainly with which a false pretence should be stated. Several de fendants may be charged jointly in the same indict ment, if they were all present, and tak ing part in the transaction. "to the whole. And the convenience also of mankind demands, ❝and, in furtherance of that convenience, it is part of the duty "of those who administer justice to require that the charge "should be specific, in order to give notice to the party of what "he is to come prepared to defend; and, to prevent his being "distracted amidst the confusion of a multifarious and complicated "transaction, parts of which only are meant to be impeached for "falsehood. The legislature have expounded their understanding "of the matter in the case of perjury; and I am at a loss to discover "why, in reason, in justice, and in mercy to the party, the charge "in this case should not be as distinctly ascertained by proper "averments that specifically draw his attention to it, as in the case of perjury." (c) It appears from this case that it is not necessary that the whole of what is stated in order to obtain the property should be false: it is sufficient if part is false; provided that part has a material effect in inducing the party defrauded to give up his property. (d) In a case which has been previously mentioned, on another point, (e) an objection was taken that the pretence was not stated with sufficient certainty, inasmuch as a wager therein mentioned was stated only to have been made "with a colonel in the army "then at Bath," without setting forth the colonel's name. (ƒ) But the objection was overruled; and Lord Kenyon, C. J. said, that the charge was sufficiently certain to enable the defendants to know what they were called upon to answer for; and that perhaps the colonel's name with whom the wager was stated to have been made was not mentioned; in which case he could not have been described with greater accuracy. And further, that if such a wager had been actually depending, it was competent to the defendants to have proved it in their defence. In the same case it was also holden, that several defendants might be charged jointly in the same indictment, if they were all present and in concert together, taking part in the same transaction. And it was holden also to be no objection in arrest of judgment, that the indictment contained several charges of the same nature in the different counts. Lord Kenyon, C. J. said, "This objection would be well founded if the legal judgment on "each count was different; it would be like a misjoinder in civil "actions. But, in this case, the judgment on all the counts is precisely the same; a misdemeanor is charged in each. Most probably the charges were meant to meet the same facts; but, "if it were not so, I think they may be joined in the same indict"ment." 66 In general on an indictment against two, charging them with a joint offence, either may be found guilty. But they cannot be found guilty separately of separate parts of the charge: yet if they be found guilty separately, upon a pardon or nolle prosequi as to the one who stands second upon the verdict, judgment may be given against the other. Hempstead and Hudson were indicted (c) Rex v. Perrott, 1814. 2 M. & S. (d) And see Rex v. Hill, post 311. 298, et seq. (f) See the abstract of the indictment, ante, 298, 299. |