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“ and all constables, headboroughs, keepers of gaols and prisons, “ and all other officers whatsoever, shall, and they are hereby re“ spectively required, from time to time, diligently to execute, “ perform, and obey, all such warrant and warrants as shall be “ made, directed, issued, or given to them, or any of them, by any « one or more of the persons aforesaid, touching any of the matters

" and things herein-before contained.” Penalty of per

+ Sect. 3. By 3 Geo. 3. c. 16. s. 6. It is recited, “ That sonating, &c. divers wicked practices may be carried on by persons knowingly

and willingly personating and falsely assuming the name and character of any out-pensioner of the said hospital, in order to receive the money due to any such out-pensioner, on account of his out-pension;" AND ENACTED, “ That whosoever willingly and “knowingly shall personate or falsely assume the name or “ character of, or procure any other to personate or falsely to as“ sume the name and character of any person intitled, or sup“ posed to be intitled, as an out-pensioner, to any out-pension or " allowance of money from the commissioners or governors of “ the said hospital, in order to receive the money due, or sup“ posed to be due, on such out-pension; every such person so “ offending, and being lawfully convicted of any such offence or “ offences, shall be deemed guilty of felony, and suffer death as a “ felon, without benefit of clergy.” (Clergy restored by 4 Geo.

4. c. 46. Penalty of per

op Sect. 1. By 31 Geo. 2. c. 10. s. 24. IT IS RECITED, “ That sonating sea- divers wicked practices have been carried on, by personating and men, or of forg- falsely assuming the names and characters of officers, seamen and ing letters of

or others, entitled, or supposed to be entitled to wages, pay or other making a false allowances of money, or prize money, for serving on board of ships oath to obtain or vessels of the royal navy, and by forging and counterfeiting letprobate of any

ters of attorney, bills, tickets, assignments, last wills and other aupersons, is

thorities and powers from such officers and seamen, and by falsely death.

taking out probate of wills and letters of administration to such of-
ficers and seamen," and therefore it is ENACTED, “That whosoever
“ willingly and knowingly shall personate, or falsely assume the
“ name or character of, or procure any other to personate, or
“ falsely to assume the name or character of any officer, seaman or
“ other person, entitled, or supposed to be entitled, to any wages, pay,
“ or other allowances of money, or prize money, for service done on
“ board of any ship or vessel of his majesty, his heirs, or successors;
“ or the executor or administrator, wife, relation or creditor of
“ any such officer or seaman, or other person, in order to receive
“ any wages, pay, or other allowances of money, or prize money,
“ due, or supposed to be due or payable, for or on account of the
“ services of any such officer or seaman, or other person as afore-
“ said; or shall forge or counterfeit, or procure to be forged or
“ counterfeited, any letter of attorney, bill, ticket, çertificate, as-
“ signment, last will, or any other power or authority whatsoever,
" in order to receive any such wages, pay, or other allowances of
“ money, or prize money due, or supposed to be due, to any such
“ officer or seaman, or other person as aforesaid ; or shall wil-
“ lingly and knowingly take a false oath, or procure any other

“ person

att

“ person to take a false oath, to obtain the probate of any will or “ wills, or to obtain letters of administration, in order to receive “ the payment of any wages, pay, or other allowances of money, “ or prize money due, or that were supposed to be due, to any “ such officer, seaman, or other person, as aforesaid, who has “ really served, or was supposed to have served on board of any “ ship or vessel of his majesty, his heirs or successors ; every “ such person so offending, being lawfully convicted of any such “ offence or offences, shall be deemed guilty of felony, and shall · “ suffer death as a felon, without benefit of clergy."

By 55 Geo. 3. c. 6. s. 32. “ If any person or persons shall « willingly or knowingly personate or falsely assume, or cause or

procure any other person to personate, or falsely assume the

name or character of any commission, warrant, or petty officer, « or seaman, or any commissioned or non-commissioned officer “ of marines, or marine, or any other person entitled or supposed to be entitled to any wages, pay, prize money, bounty money, or other allowances of money, for or in respect of services performed or supposed to have been performed on board of any “ ship or vessel of his majesty, his heirs or successors; or the wife, “ widow, executor or administrator, relation or creditor of any “ such officer or seaman, or other person as aforesaid, in order “ to receive any wages, pay, prize money, bounty money, or other " allowances of money due or supposed to be due, for or in re“ spect of the services of any such officer, seaman, marine, or “ other person as aforesaid, performed or supposed to have been “ performed on board of any ship or vessel of his majesty, his “ heirs or successors, shall be guilty of felony without benefit “of clergy.”

By reference to the above acts it will be seen, that the personating must be of some person who is entitled, or supposed to be entitled, to pay or prize money. Therefore it has been held necessary to shew that there was some person in existence, who, prima facie, might be entitled to receive such pay or prize money; this was decided in the case of one Brown, who was tried at the Winchester spring assizes 1800, who, under the assumed name of William Wheeler, obtained a sum of money, stating that he was entitled to it as prize money, by having served on board the Terpsichore frigate, and produced a certificate apparently regular in its form to corroborate his statement. There was no evidence given that any such person as William Wheeler was entitled to prize money, or prima facie entitled to it as a seaman on board the Terpsichore, and on this ground the court held the conviction wrong. This decision was afterwards confirmed in a subsequent case of one Charles M‘Annelly.—(2 E. P. C. 1009.)

Falsely personating another, though for the purposes of fraud, is no more than a misdemeanor at common law, but when done in combination, the parties may be indicted for a conspiracy. (2 E. P. C. 1010.–1 L. C. C. 44.—2 E. P. C. P. 856.

See further 57 Geo. 3. c. 127. for granting certain allowances out of the Droits d’Admiralty to Greenwich Hospital, by which it is made felony without benefit of clergy, to personate those entitled to the allowances given by that act.

CHAP.

oll. 107.

1

K

431

CHAP. XXIII.

OF CHEATS.
CHEATS punishable by public prosecution, are of two kinds.;

1. By the common law.

2. By statute.

. Sect. 1. And first it seemeth, that those which are punishable C. Jac. 497. at common law, may, in general, be described to be deceitful 2 R. Abr. 78. practices, in defrauding or endeavouring to defraud another of his

" known right by means of some artful device, contrary to the plain Modern, 42. Farresley, 40. rules of common honesty (1); as by playing with false dice (a); But see the 16 or by (6) causing an illiterate person to execute a deed to his Car. 2. c. 7. and

dana prejudice, by reading it over to him in words different from those fra. (6) 1 Sid. in which it was written ; or by (c) persuading a woman to exe312. (c) 1 Sid. eute writings to another, as her trustee, upon an intended marriage, 103. (e)Noy, 99.

So, which in truth contained no such thing, but only a warrant of Moor, 630. C. attorney to confess a judgment, &c.; or by (dl) suppressing a Eliz. 531. . will; or by (e) levying a fine in another's name, or (f ) suing out 1 Modern, 46. 2 Jones, 64.

o an execution upon a judgment for him, or acknowledging an (f ) Noy, 99. action in his name, without his privity, and against his will ; in (R)See the books which cases, by some good (g) opinions, the record may be above cited; but vorted 2 R. Abr. 863. vacated. C. and 12 Co. 223, are contrary. (h) 6 Mod. 105. Sect. 2. It (h) seemeth to be the better opinion, that the deSalkeld, 379. ceitful receiving of money from one man to another's use, upon 3 Modern, 18. L. Ray. 1013. a false pretence of having a message and order to that purpose, Sess. Čas. 201. is not punishable by a criminal prosecution, because it is accom

panied with no manner of artful contrivance, but wholly depends on a bare naked lie; and it is said to be needless to provide severe laws for such mischiefs, against which common prudence and caution may be a sufficient security.

+ Therefore (1) It may be doubted, says Mr. East, whether If the defendent make use of an apparent token, this definition of Hawkins be sufficiently accurate which in reality upon the face of it has no more or distinct to be taken as a definition of the offence credit than his own assertion, it will not differ the at common law, and that learned writer founds his case. Thus one Lara bought lottery tickets and doubts upon a review of the several cases of indict pretended to pay for them by giving a draft upon ments for cheats at common law, which he observes, bis banker ; it turned out that he had no money at in order to be supported, it is necessary that the the bankers' upon whom he had drawn the cheque, cheat must be shewn to be effected by some nor had any authority to draw it. It was held false public token: as false weights or measures, that this was no false token, for the bankers' cheque or the like. Procuring goods or money, or cheat drawn by the defendant himself was no more than ing by a mere naked lie, is not an indictable of- his own assertion that the money would be paid. fence; as where one Lewis was indicted at com- (R. v. Lara, 6 T. R. 565.) So where one Wildus, mon law for a cheat, in depositing as a security for à brewer, sent casks to a customer, marked as conmoney advanced, a quantity of gum, affirming it taining so much ale, and writing a letter that they to be gum seneca, and afterwards selling it to the contained so much, when in fact they contained prosecutor for such, affirming it to be so and that it less. Indictment for this offence was quashed, as was worth 71. whereas it was not that article, and being no false token, but only the defendant's own worth but 31. Judgment was arrested, being no more assertion ; (cited by Lord Mansfield, in 2 Burr, than a false affirmation, for which the party was not 1128.) Many instances found in the books of inindictable unless he came with false tokens, (R. v. dictment for cheats at common law, upon private Lewis, East, 28 Geo. 2.): or where one obtained tokens, will upon examination be found to be money of another, by pretending to come by the founded either in conspiracy or forgery at common command of a third person, to demand a debt or law:(See East P. C. title Cheats.) But the examithe like in his name, shewing no voucher or token nation is now of no great importance, since the eis for his authority; it was holden not indictable, for tension of the law by the subsequent st. of 30 Geo, it was the party's own fault to trust him. (Jones's 2. c. 24. enlarged by 52 Geo. 3. c. 64. case, Salk. 379 ; see also the case of R. v. Gibbs, 1 E. R. 185. 2 Str. 866.)

acts recited

+ Therefore it hath been decided, that an indictment will not Vide Wheatlie at common law against a person for selling beer short of the ley's case, Bur. due and just measure, as sixteen gallons instead of eighteen B1 gallons, for this is only an inconvenience and injury to a private person, arising from that private person's own negligence and carelessness in not measuring the liquor upon receiving it, to see . whether it held out the just measure or not; but if a tradesman uses false weights and measures in the general course of his dealing, or sell by them to any particular customer, it is an indictable offence, for this is a deception that common care and prudence is not sufficient to guard against. And upon this distinction it has been decided, that a pawnbroker who procures a Rex v. Bower, gold watch chain of gold no way agreeing with the standard, but Cowp. 323. being according to the rate of twelve carats and two grains in the pound troy weight worse than the standard, and knowingly exposes and sells the same as and for a thing wholly made of gold, and agreeing with the said standard, is not indictable; for being neither a sale either by false weights or false measures, it is not a public offence, but a mere private imposition, against which a man's own common prudence ought to be a sufficient guard.

Sect. 3. Some of the abovementioned offences are punishable See the authonot only with fine and imprisonment, but also with farther infa- rities cited in.

sect. 1. and the mous punishment (as cheating with false dice, especially if the a offender be a common gamester); others are punishable with infra, sect. 8 fine and imprisonment only, by the discretion of the judges, and 9. which is regulated by the circumstances of each particular case; and some of them are made felonies by 21 Jac. c. 26. as appeareth from the chapter of “ Offences against Public Justice.”

+ II. OFFENCES of this kind by statute are those which are effected by means of a false privy token, or by means of a false pretence.

+ As to the first particular, viz. cheating another by means of a false privy token.

Sect. 4. This depends on the 33 Hen. 8. c. 1. which recites, 1 Hale, 506. that many light and evil-disposed persons, not minding to get :

# 2 Sess. Cas. 27.

Strange, 866. their living by truth, but compassing and devising daily how they Bar. R'B. 298. may unlawfully obtain and get into their hands and possession 331.. goods, chattels, and jewels of other persons, for the maintenance called, o s. of their unthrifty living, and also knowing that if they came to 111. 301.311. any of the same goods, chattels, and jewels by stealth, that then 9 St. Tr. 67. they, being thereof lawfully convicted according to the laws of this realm, shall die therefore, have now of late falsely and deceitfully contrived, devişed, and imagined privy tokens and counterfeit letters in other men's names, unto 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 evildisposed persons have deceitfully and unlawfully obtained and gotten great substance of money, goods, chattels, and jewels into their hands and possession, contrary to right and conscience: for the reformation whereof IT IS ENACTED, “ That if any per-.

“ son

“ son or persons shall falsely and deceitfully obtain, or get into
“ his or their hands or possession, any money, goods, chattels,
“ jewels, or other things of any other person or persons, by co-
“ lour and means of any privy false token, or counterfeit letter
« made in another man's name, to a special friend or acquaint-
“ ance, for the obtaining of money, &c. from such person, and
“ shall be thereof convicted, by witness taken before the lord
“ chancellor, or before the justices of assize, or before the jus-
“ tices of peace of any county, city, borough, town, or franchise
“ in their general sessions, or by action in any of the king's
“ courts of record, every such offender shall suffer such punish-
“ ment by imprisonment, setting upon THE PILLORY, or other-
“ wise by any corporal pains, except pains of death, as shall be
“ appointed by those before whom he shall be so convict.”

+ Sect. 5. And by 33 Hen. 8. c. 1. s. 2. it is further enacted, “ That as well the justices of assize for the time being, as also two justices of peace in every county, whereof the one to be

« of the quorum, may call and convene by process, or otherwise, Dalton, 32. “ to the said assizes, or general sessions, any person being sus

o pected of any of the offences aforesaid, and commit or bail “ him till the next assizes or general sessions, there to be exa“ mined and further ordered by their discretions."

+ By 33 Hen. 8. c. 1. s. 3. it is also further enacted, “ That “ justices of the peace in every city, borough, town, and fran“ chise within this realm, shall have the like jurisdiction, power, “ and authority at their general sessions, and otherwise, to do and “ execute all and every thing in all points, as other justices of “ the assizes in their circuits, or justices of the peace in the “counties by virtue of this act, saving to the party grieved by “ such deceit, such remedy, by way of action or otherwise, of “ and for the same money, goods, chattels, jewels, or other thing “ so obtained, as he might have had if this act had never been

“ made." 3 Inst. 123. Sect. 6. Sir Edward Coke is of opinion, that the offender

cannot be fined in a prosecution upon this statute, because it is expressly ordained, that some corporal punishment shall be in

flicted, and no other is mentioned; however, there is a preceC. Car. 564. dent in Croke's Reports, by which it appears, that one convicted

on such a prosecution hath been adjudged not only to stand on the pillory, but also to pay a fine of five hundred pounds, and to

be bound with good sureties to his good behaviour. 2 Burr. 355. + Sect. 7. In order to bring an offender within the statute

33 Hen. 8. c. 1. there must be a false token used ; and therefore Rex v. Munoz, where one man went to the house of another, and pretended that 2 Stra. 1127. such a person had sent him to receive twenty pounds, and

received it, whereas such person did not send him, it was held no offence within the statute.

The common law punishing only those cheats which were effected by means of false public tokens, or by conspiracy or by forgery, or which affected the public interest, the statute of Henry the 8th went further, and punished those cheats which

were

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