any right, title, or interest in, or any property whatever in the certificate of stock described in said indictment; nor that there was any way whereby the defendant could enable John Ferris, mentioned in said indictment, to obtain any property in or advantage from said certificate, other than he already at that time possessed; and thus he, said Ferris, could not be deceived thereby, nor have delivered anything of value upon the security thereof.

"2. Because it appears by said indictment that said certificate was the property of said John Ferris, and that the said Ferris could not be defrauded by the delivery thereof to himself, nor by any representations regarding it.

"3. Because it is not set forth in said indictment how, or in what manner, said Ferris could be deceived by the offer of said certificate, or any representations regarding the same..

4. Because said certificate by its terms, as appears in said indictment, was transferable only by conveyance in writing recorded in the books of the corporation by the said John Ferris, purporting to be the owner thereof, and the surrender of said certificate and the issue of a new certificate, or certificates; and thus it appears that the said Coe had no property in said certificate and that the said Ferris could receive no benefit therefrom.

5. Because the check and piece of paper alleged to have been delivered to said Coe by said Ferris are neither of them set forth nor described.

6. Because in said indictment it is set forth that the said Coe obtained from said Ferris a loan only of the property therein mentioned, it not being alleged that the said Ferris was deprived of his property therein, and it is not alleged how he could be, or was, defrauded of his property therein.

7. Because the allegations of said indictment charge representations made relating to the means and ability of the defendant to repay, at some future day, a loan then obtained; and it is not alleged in said indictment that the representations made by the defendant were made in writing.

"8. Also, because said indictment alleges that the described certificate was of a certain tenor, without setting forth what is its tenor."

The court overruled both motions, and the defendant excepted. At the trial, the attorney for the commonwealth offered in evidence, as the certificate described in the second count, a certificate, similar to that set forth in this count, with blank transfers indorsed thereon. The defendant contended that said indorsements should have been set out in the indictment, and asked the court to rule that there was a fatal variance between the allegation and the proof offered. The court declined to so rule, and the defendant excepted.

It appeared in evidence that at the time of the delivery to Ferris by the defendant of the last named certificate, the defendant also delivered to said Ferris his, the defendant's, promissory note for the amount of said loan, payable three months from its date. The defendant asked the court to rule that the giving of the note and the note itself should have been set out in the indictment; and not be

ing so set out, that there was in this respect a fatal variance between the allegations and proof. The court declined to make such ruling, and the defendant excepted.

It was proved that the certificate of stock delivered to Ferris was, when originally issued, a valid certificate for one share of stock in the Eastern Railroad Company, and that it had been subsequently altered, without the authority of the company, so as to read "one hundred shares" instead of "one share." The defendant contended that the certificate, having been originally duly issued as a certificate for one share, still remained a good and valid certificate for one share, and was of value, notwithstanding the alterations subsequently made without the authority of the company; and asked the court to rule that in this respect there was a fatal variance between the allegations and proof. The court declined so to rule, and the defendant excepted.

During the trial the attorney for the government, for the purpose of proving guilty knowledge on the part of the defendant, offered to show that he had at other times than those mentioned in the indictment uttered other forged certificates of stock, some of them being certificates of stock in a corporation other than the one named in the second count of the indictment. The defendant objected to this evidence. But the court ruled, that for the purpose stated above, evidence was competent to show that the defendant had uttered other forged certificates of stock, similar to the one set forth in the second count, at or about the time he delivered the one named in this count to Ferris.

Several certificates of stock, shown by the evidence to have been altered and forged, numbered 117, 274, .389, and 9,316, were then introduced by the government, together with evidence as to the times when, and the persons to whom, these forged certificates were uttered and delivered by the defendant. To the admission of these certificates and evidence the defendant excepted. At the time of the trial indictments were pending against the defendant for forging or uttering said certificates.

It was proved that the certificate No. 59, set forth in the second count of the indictment, was delivered by the defendant to Ferris, January 4, 1873; that No. 5,558, set forth in the first count, was delivered to Shaw, April 23, 1873; that No. 117 was delivered to one Cary, in February or March, 1873; that No. 274 was delivered to the Third National Bank of Boston, January 31, 1873; that No. 9,316 was delivered to one Deshon, about the same time; that No. 389 was delivered to Deshon, March 4, 1873. It was also shown that all these certificates were delivered by the defendant, to the several persons named, as collateral securities for loans made to him by said persons. It was further shown in evidence that certificate No. 5,558 was originally issued in the name of George Warner, for two shares, under date of April 16, 1873, and that the words "George Warner is" had been altered to "Warren & Co.," and the word "two" altered to "one hundred," and the figures in the date had been changed to "23"; that certificate No. 59 was originally issued in the name of " John Ferrer," for one share, under date of August

7, 1872; that the word "Ferrer" had been altered to "Ferris " the word "hundred " had been written after the word "one," and the date changed to January 3, 1873. That all these changes in these certificates had been made after the certificates had been issued by the respective companies, and without their authority or permission or knowledge, and before they were uttered by the defendant. Certificate No. 117 was shown to have been issued in the name of W. Y. Coe, for one share, December 27, 1872, that the words "one share" had been changed to "eighty shares," and the name N. C. Cary substituted for that of W. Y. Čoe. Certificate No. 274 was originally issued in the name of James A. Coe, for two shares, under date of January 31, 1873, that the "two shares" had been changed to "two hundred shares," and "Third National Bank" substituted for "James A. Coe." Certificate No. 389 was originally issued to James A. Coe, for "one share," under date of February 25, 1873, and subsequently the "one share" had been changed to "fifty shares," the name "James Deshon” substituted for that of "James A. Coe," and the date changed to March 4, 1873. It was shown that all these alterations in the several certificates were made after the certificates had been issued by the several companies, and without their knowledge or authority, and before they were uttered by the defendant.

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John Ferris was the only witness called to prove the representations and pretences made to him by the defendant at the time Ferris made the loan to him. He testified in substance as follows: I live in Boston; know the defendant; lent him money about January 4, 1873, and took a note for it. This is the note. I took it from the defendant. He gave me collateral. This certificate, No. 59, is I think the certificate he gave me. I did n't look at the number. received it at the time I took the note. I gave him a check. I do not know where it is now. I have looked for it and cannot find it. It was for seven thousand dollars. At that time I kept an account at the Eliot Bank, and one at the City Bank; and the bank on which I was then in the habit of drawing was, I think, the Eliot Bank. I put the certificate away among my papers in my safe. I did not alter the certificate. It appears now to be in the same condition it was in when I received it. On cross-examination the witness testified that he had been in the habit for some time of lending considerable sums of money to the defendant; that on the occasion when the note above mentioned was given he went to the defendant and asked him to take some money of him. The cross-examination of this witness then proceeded as follows:

not.

Ques. Did you make any inquiry into the security? Ans. I did

Ques. Did you not rather trust him, knowing him, than any security? Ans. I had every confidence in him.

Ques. And you went to him, and asked him if he would take some money from you, and he said he would? Ans. I think I gave him the check in his own office.

Ques. And then did he give you the note at the time you gave him the check? Ans. Yes, sir.

Ques. Was there anything said by you or by him as to the security, except that he handed you out a paper after you had made the bargain? Ans. Nothing, sir.

Ques. Then the transaction, if I understand it, is substantially this: You had some money to put at interest; you went to Coe and asked him to borrow the money; he gave you a note and this security, and you took them and put them away? Ans. Yes, sir.

Ques. Now I want to put you the question: Did you believe then, or do you believe now, that Mr. Coe got this money from you with the intent to defraud you? Ans. I do not.

The defendant's note to Ferris for the $7,000 loan was dated January 3, 1873, payable three months from date. The defendant offered evidence to show that he paid all his liabilities as they fell due down to the date of his arrest, May 14, 1873; that at all times after the giving of said note to Ferris down to the time of his arrest, and always before, he had met his engagements with promptness; that he had the means to pay all his debts as they became due in the ordinary course of business; that he paid one of $80,000 on May 13, the day before his arrest, and that he had then $40,000 left on deposit, and that at the time of his arrest he had a large amount of property, and was engaged in a prosperous business. This evidence was objected to by the attorney for the government, and ruled out by the court, to which ruling the defendant excepted. The defendant did not in any part of his offer of evidence offer to prove, that at the time he obtained the loan from Ferris he was solvent, and had property in his own right, sufficient to pay all his debts.

The loan from Ferris to the defendant, as appears by the testimony, was made by the delivery of the lender's check to the defendant for the sum of $7,000, being the same sum for which the defendant at the same time gave his note to Ferris. The defendant asked the court to rule that this was not evidence of the delivery of anything of value to the defendant. The court declined so to rule, but submitted it as evidence to the jury.

The defendant objected to the admission in evidence of the certificate described in the first count of the indictment, as issued to Warren & Co.; but it was admitted and the defendant excepted.

The government proposed to use the promissory note delivered by the defendant to Ferris as furnishing a standard of comparison to show that the alterations in the two certificates set forth in the indictment were in the handwriting of the defendant, as bearing upon the question of his guilty knowledge of said alterations. The defendant objected to such use of the note; but the court ruled that the note having been delivered by the defendant as his own, its genuineness was sufficiently proved to authorize its use as such standard of comparison, the defendant having neither offered, nor proposed to offer, any evidence in denial of the claim of the government that the writing in the note was the handwriting of the defendant.

At the close of the evidence, the counsel for the defendant requested the court to direct a verdict of acquittal on the second count, contending that the evidence was not sufficient, in any view

of it, to authorize the jury to find the defendant guilty. The court declined to comply with this request, but submitted the case to the jury upon the evidence with the following instructions (first reading to them Gen. Sts. c. 161, § 54, upon which the indictment is founded). Full instructions, not now objected to, were given in relation to the first count, and then the attention of the jury was called to the second count, and they were instructed that, to authorize a conviction on this count, they must be satisfied beyond all reasonable doubt:

"First. That the defendant, as alleged in this count, did unlawfully, knowingly, and designedly falsely pretend and represent to said Ferris that the certificate therein described was a good, valid, and genuine certificate of stock, and was of value as set forth in the

count.

"Second. That said certificate was not a good, valid, and genuine certificate of stock, but was a false, forged, and counterfeit one, and was of no value.

"Third. That said Coe knew at the time he delivered the said certificate to Ferris that said pretences were false, and that said certificate was not valid and genuine, and of value, but that it was a false, forged, and counterfeit certificate, and was of no value.

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Fourth. That said Ferris believed said false pretences, and was deceived thereby, and was induced by reason of the same to loan and deliver, and did loan and deliver, his order or check to said Coe upon the security and pledge of said certificate as set forth in said second count.

"Fifth. That the defendant designedly made said false pretences, and obtained said loan and property of said Ferris as set forth in said count, with intent to cheat and defraud said Ferris. That if the jury, upon all the evidence, had any reasonable doubt of the affirmative proof of any one or all of these propositions it would be their duty to acquit the defendant."

The jury were further instructed, that a false pretence within the meaning of the statute which had been read to them might be defined to be a representation of some fact or circumstance calculated to mislead which is not true; that it must relate to some past or existing facts; that to give the false pretence a criminal character, the party making it must know it to be false, and must make it with an intent to cheat and defraud; that such false pretence may be made orally, or it may be made in writing.

That the false pretence set out in this second count being that the certificate therein described was, at the time of said delivery, a good, valid, and genuine certificate of ownership of stock, &c., and of the value of seven thousand dollars, if the defendant, knowing that certificate to be a false and forged one, and of no value, delivered it to Ferris as a valid and genuine certificate and of value, for the purpose of obtaining from Ferris a loan of money, and Ferris received it believing it to be valid and genuine, and of value, that would constitute a false pretence, even though the defendant at the time of the delivery made no oral representations respecting the character of the certificate. The court stated to the jury that if