Cheat.

OF cheats punishable by public prosecution, there are two

kinds:

I. By the Common Law.

II. By Statute.

[7 & 8 G. 4. c. 29.]

I. Bu the Common Law.

Cheats, which are punishable by the common law, may in ge- Cheats by the neral be described to be deceitful practices, in defrauding or en- common law deavouring to defraud another of his known right, by means of some described, artful device, contrary to the plain rules of common honesty; as by playing with false dice; or by 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; or by persuading a woman to execute writings to another, as her trustee, upon an intended marriage, which in truth contained no such thing, but only a warrant of attorney to confess a judgment; or by suppressing a will; and such like. 1 Haw. c. 71. § 1.

Semb. that it

must be a fraud

affecting the public.

It has been observed, however, that the definition of an indictable cheat at common law would have been more distinct and accurate if it had been stated to consist in 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. 2 East, P. C. 818. 2 Russ. 290, 291. It seemeth to be the better opinion that the deceitful receiving False message of money from one man to the use of another, upon a false tence of having a message and order to that purpose, is not punishable by a criminal prosecution, because it is accompanied with no manner of artful contrivance, but only 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. 1 Haw. c. 71. 2. 2 East's P. C. 818.

pre

Therefore, where Jones obtained money of another, by pretending to come by the command of a third person to demand a debt or the like in his name, showing no voucher or token for his authority; it was holden not indictable, for it was the party's own fault to trust him. - Et per cur. We are not to indict one man for making a fool of another: let him bring his action. Jones's case, 1 Salk. 379. 2 Ld. Raym. 1013. 6 Mod. 105.

not indictable as a cheat.

Where defendants were indicted for a conspiracy to cheat and Cheat by selling defraud prosecutor by selling him an unsound horse, and the evi- an unsound dence did not substantiate a conspiracy: it was held by Lord horse, not Ellenborough C. J., that in such a case a prosecution for a cheat at common law could not be substituted for an action on the warranty. R. v. Pywell and others, cit. 2 Russ. 297.

indictable.

A person for a counterfeit pass was adjudged to the pillory, and Counterfeit fined. Dalt. c. 32.

From R. v. Wood, 1 Sess. Ca. 217., it appears that changing corn by a miller, and returning bad corn instead of it, is punishable by indictment; for, being in the way of trade, it is deemed an offence against the public.

pass.

Miller changing corn. Qu.? See next case.

But in a more modern case (R. v. Haynes, 4 M. & S. 214.) it was held not indictable for a miller receiving good barley to grind at his mill, to deliver a musty and unwholesome mixture of oat and barley meal, different from the produce of the barley. In this case, Ld. Ellenborough C. J. said, "The allegation that the quantity (of meal) delivered was musty and unwholesome, if it had alleged that the defendant delivered it as an article for the food of man, might possibly have sustained the indictment: but I cannot say that its being musty and unwholesome necessarily and ex vi termini imports that it was for the food of man, and it is not stated that it was to be used for the sustentation of man, only that it was a mixture of oat and barley meal. As to the other point, that this is not an indictable offence, because it respects a matter transacted in the course of trade, and where no tokens were exhibited by which the party acquired any greater degree of credit, if the case had been that this miller was owner of a soke mill, to which the inhabitants of the vicinage were bound to resort in order to get their corn ground, and that the miller, abusing the confidence of this his situation, had made it a colour for practising a fraud, this might have presented a different aspect; but as it is, it does seem no more than the case of a common tradesman who is guilty of a fraud in a matter of trade or dealing."

Defendant, being a baker, was indicted for having supplied the Chelsea Military Asylum with loaves, in which alum was so inserted as to be noxious, and it was proved that lumps were found in the loaves sufficient to injure the health of those who eat them. It was held by Ld. Ellenborough C. J., and afterwards by B. R., that it was clearly an indictable offence at common law, and that it was no defence, that his intention was to have mixed the alum so carefully that it would only have improved the colour of the bread, without injuring its quality. R. v. Dixon, 4 Campb. 12. 3 M. & S. 11. cit. 2 Russ. 287.

It has been held indictable to enable persons to pass their accounts with the pay-office, so as to defraud the government. 2 Russ. 288., and case there cited.

So it appears that prosecutions may be maintained against overseers for refusing to account, or for rendering false accounts; also, for a fraud committed by a parish officer, in procuring the marriage of a pauper in order to burthen another parish. Ibid. So, for other similar fraudulent practices. Ibid.

A person, falsely pretending that he had power to discharge soldiers, took money of a soldier to discharge him; and being indicted for the same, the court held the indictment to be good. Serlestead's case, 1 Latch. 202.

As there are frauds which may be relieved civilly, and not punished criminally (with the complaints whereof the courts of equity do generally abound); so there are other frauds, which in a special case may not be helped civilly, and yet shall be punished criminally thus if a minor go about the town, and, pretending to be of age, defraud many persons by taking credit for considerable quantities of goods, and then insist on his nonage, the persons injured cannot recover the value of their goods, but they may indict and punish him for a common cheat. Barl. 100. Qu. de hoc.

:

And in the case of Q. v. Orbell it was holden to be an indictable offence to get a person to lay money on a race, and to prevail

with the party to run booty; for though the cheat was private in this particular, yet it was public in its consequences. 6 Mod. 42. This is considered to have been a case of conspiracy. 2 Russ. 291. So where two effected a cheat, by means of the one pretending to be a merchant and the other a broker, and, as such, bartering pretended wine for hats, they were convicted. R. v. Macarthy & Fordenborough, 2 Ld. Raym. 1179. But the ground of that judgment was that it was a conspiracy. 2 East's P. C. 824.

A mere imposition is not

indictable as a cheat.

Finally, the distinction which, as it seemeth, will solve almost Selling short all cases of this kind, was taken in the case of R. v. Wheatley, measure. 2 Burr. 1125, 1 Blac. Rep. 273. S. C. The defendant was indicted and convicted for selling beer short of the due and just measure, to wit, sixteen gallons as and for eighteen. Upon a motion in arrest of judgment, it was said by the court, 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 the just measure or not. "Offences that are indictable must be such as affect the public, as if a man use false weights and measures, and sell by them to all or to many of his customers, or use them in the general course of his dealing: so, if there be any conspiracy to cheat; for these are deceptions that common care and prudence are not sufficient to guard against. These are much more than private injuries; they are public offences." But in the present case it is a mere private imposition or deception. No false weights or measures are used; no conspiracy; only an imposition upon the person he was dealing with, in delivering him a less quantity instead of a greater, which the other carelessly accepted. It is only a non-performance of his contract; for which non-performance the other may bring his action. So the selling an unsound horse for a sound one is not indictable. The buyer should be more upon his guard; and the distinction which was laid down, as proper to be attended to in all cases of this kind is this: that in such impositions or deceits where The general common prudence may guard persons against their suffering from rule. them, the offence is not indictable; but where false weights and Distinction. measures are used, or false tokens produced, or such methods taken to cheat and deceive as people cannot by any ordinary care

or prudence be guarded against, there it is an offence indictable.

The distinction, therefore, is this; if a person sell by false False weights. weights, though only to one person, it is an indictable offence;

but if without false weights he sell to many persons a less quantity Bad measure. than he pretend to sell, it is not indictable. 3 T. R. 104.

R. v. Lara, 6 T. R. 565. This was an indictment at common Drawing false law, charging the defendant with deceitfully intending, by divers cheques. crafty means and subtle devices, to obtain possession of certain lottery tickets, the property of A., pretending that he wanted to purchase them, and delivered to A. a fictitious order for the payment of money, purporting to be a draft upon a banker for the amount, which he knew he had no authority to draw, and would not be paid; by which he obtained the tickets, and defrauded the prosecutor of the value. Judgment was arrested, on the ground that the defendant was not charged with having used any false token to accomplish the deceit; for the banker's cheque drawn by the defendant himself, entitled him to no more credit than his bare assertion that the money would be paid.

Held indict

able.

A false affirmation is not enough.

Frauds affect

ing the crown

But in R. v. Jackson, at Gloucester spring assizes, 1813, 3 Campb. 370., on an indictment on stat. 30 G.2. c. 24., where it appeared that the prisoner had obtained property by giving a draft on his banker, and pretending he had cash there to pay it, Bayley J. (before whom the prisoner was tried) said, that this point had been recently before the judges, and that 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.

So in R. v. Gibbs, 1 East, 185., Ld. Kenyon again held that an indictment for a cheat at common law cannot be maintained unless some false token be made use of: a mere false affirmation is not sufficient.

All frauds affecting the crown and the public at large are indictable, though arising out of a particular transaction or contract

and the public. with the party. 2 East's P. C. 821.

Unwholesome

food.

Enlistment by

Therefore, an indictment lies for wilfully, deceitfully, and maliciously supplying prisoners of war with unwholesome food, not fit to be eaten by man. Treve's case, 2 East's P. C. 821.

So, obtaining the king's bounty for enlisting as a soldier by an an apprentice. apprentice reclaimable by his master is an indictable offence at common law. In such case, the indenture of apprenticeship must be proved by one of the two subscribing witnesses, in order to warrant the conviction. R. v. Jones, Coventry Lent Ass. 1777, 2 East's P. C. 822. 1 Leach, 174.

Indictment must state the

It is not sufficient for the indictment to allege generally that the cheat was effected by certain false tokens or false pretences, but it false pretences, must specify and set forth what they were; but it does not seem necessary to describe them more particularly than they were described to the party at the time the fraud was effected. 2 Russ. 297.

&c.

Punishment.

7 & 8 G. 4. c. 29.

Obtaining money, chattels, &c., by false pretence, a mis

demeanor.

Punishment.

Not to be ac

Some of the above offences are punishable not only by fine and imprisonment, but further with other infamous punishment; (as in Leeson's case, who was three times set on the pillory (a) for cheating with false dice. Cro. Jac. 497.) Others are punishable by fine and imprisonment only, at the discretion of the judges, which is regulated by the circumstances of each particular case. 1 Haw. c. 71. § 3.

II. By Statute.

The statutes 33 H. 8. c. 1., 30 G. 2. c. 24. §1., and 52 G.3. c.64., relating to cheats by false tokens and false pretences, are now repealed.

By 7 & 8 G. 4. c. 29. § 53., reciting that a failure of justice frequently arises from the subtle distinction between larceny and fraud, enacts that if any person shall, by any false pretence, obtain from any other person any chattel, money, or valuable security, with intent to cheat or defraud any person of the same, every such offender shall be guilty of a misdemeanor; and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to suffer such other punishment, by fine or imprisonment, or by both, as the court shall award: provided always, that if, upon the trial of any

(a) Abolished by stat. 56 G. 3. c. 138., except in cases of perjury, or subornation of perjury. See title pillory, &c.

person indicted for such misdemeanor, it shall be proved that he quitted if it obtained the property in question in any such manner as to prove larceny. amount, in law, to larceny, he shall not, by reason thereof, be entitled to be acquitted of such misdemeanor; and no such indictment shall be removable by certiorari; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts.

Some of the cases decided upon 30 G. 2. c. 24. (now repealed) 30 G. 2. c. 24. may assist in the construction of the above sect. in 7 & 8 G. 4. (repealed).

By 30 G. 2. c. 24. § 1., all persons who, knowingly and designedly, by false pretences, should obtain from any persons money, goods, &c. with intent to cheat or defraud any persons, should be deemed offenders, &c.

R. v. Mason, 2 T. R. 581. The defendant was indicted for obtaining money by false pretences; and on his trial at the sessions at Worcester he was convicted, and received sentence of transportation for seven years. The defendant brought a writ of error, and assigned for error that it did not appear by the indictment what the particular and specific false pretences were, by which he obtained the money.-Buller J. The question is not a new one : I remember a case when I was at the bar, and I argued it on the analogy to the case in Strange for obtaining a note by false tokens, which entirely governs this. That was a case on the statute 33 H. 8. c. 1., which makes it an offence to obtain money or goods by false tokens. The statute 30 G. 2. c. 24. only enlarges the description of the offence in the statute of H. 8. Both statutes are made in pari materiâ; and whatever has been determined in the construction of one of them is a sound rule of construction for the other. The judgment was arrested in the case in Strange, because the indictment did not specify the false tokens: then, by the same reason, an indictment on stat. 30 G. 2. c. 24., which speaks of false pretences, must state what the false pretences are; otherwise the indictment is bad: there is no distinction between the two cases; the same objection which held in the one must also prevail in the other. I am of opinion that the objection is fatal.-Grose J. of the same opinion; observing, that this is a charge for a precise crime, and therefore it must be alleged.-Judgment reversed, and the defendant discharged.

The false pretences must be indictment.

set forth in the

An indictment for obtaining money by false pretences, charged And must be that the defendant did falsely pretend to one Mr. Blome, the proved as laid. servant and clerk of R. M. &c. that he had paid a sum of money into the Bank of England; whereas in truth and in fact he had not, &c., by means of which said false pretence defendant obtained 106/. of the monies of R. M., &c. with intent to defraud them of the same. Mr. Blome proved that the defendant said to him on the occasion referred to, that the money had been paid at the bank, not that he had paid it.—Lord Ellenborough C. J. held this to be a fatal variance: and observed, that "in an indictment for obtaining money by false pretences, the pretences must be distinctly set out (R. v. Mason, antè), and at the trial they must be proved as laid. An assertion that money had been paid into the bank, is very different from an assertion that it had been paid into the bank by a particular individual." The defendant was acquitted. R. v. Plestow, Sittings at Westminster after M. T. 49 G. 3. 1 Camp. 494.