in the course of particular transactions with private individuals.(1) 2 Russ. by Grea. 275. The selling unwholesome provisions, 4 Bl. Com. 162, or the giving any person unwholesome victuals, not fit for man to eat, lucri causa, 2 East, P. C. 822, is an indictable offence. Where the defendant was indicted for deceitfully providing certain French prisoners with unwholesome bread, to the injury of their health, it was objected, in arrest of judgment, that the indictment could not be sustained, for that it did not appear that what was done was in breach of any contract with the public, or of any civil or moral duty; but the judges, on a reference to them, held the conviction right. Treeves's case, 2 East, P. C. 821. The defendant was indicted for supplying the royal military asylum at Chelsea, with loaves not fit for the food of man, which he well knew, &c. It appeared that many of the loaves were strongly impregnated with alum, (prohibited to be used by 37 Geo. 3, c. 98, s. 21,) and pieces as large as horse-beans were found; the defence was, that it was merely used to assist the operation of the yeast, and had been carefully employed. But Lord Ellenborough said, "Whoever introduces a substance into bread, which may be injurious to the health of those who consume it, is indictable, if the substance be found in the bread in that injurious form, although if equally spread over the mass, it would have done no harm." Dixon's case, 4 Campb. 12; 3 M. & S. 11.

[*380] There are also another head of public cheats indictable at common *law, which are directed against the public justice of the kingdom; such as the doing judicial acts without authority, in the name of another. 2 East, P. C. 821. There is the precedent of an indictment against a married woman for pretending to be a widow, and as such, executing a bail-bond to the sheriff. This probably was considered a fraud upon a public officer in the course of justice. Ibid. Trem. P. C. 101; Cr. Cir. Com. 78. So it was said by Lord Ellenborough, that he had not the least doubt that a person making use of a false instrument for the purpose of perverting the course of justice, was guilty of an offence punishable by indictment. Omealy v. Newell, 8 East, 364. So it was held, that a person who, being committed under an attachment for a contempt in a civil cause, counterfeited a pretended discharge as from his creditor to the sheriff and gaoler, under which he obtained his discharge from gaol, was guilty of a cheat and misdemeanor at common law, although the attachment not being for non-payment of money, the discharge was a nullity. Fawcett's case, 2 East, P. C. 862. Doubts were entertained by some of the judges whether this was not a forgery at common law. Vide post, Forgery.

Fraudulent malversations or cheats in public officers, are also the subject of an indictment at common law, (2) as against overseers of the poor for refusing to account; Commings' case, 5 Mod. 179; 1 Bott. 232; 2 Russ. by Grea. 278; or for rendering false accounts. Martin's case, 2 Campb. 269; 3 Chitty, C. L. 701; 2 Russ. by Grea. 278. Upon an application to the court of king's bench, against the minister and churchwardens of a parish, for misapplying moneys collected by a brief, and returning a smaller sum only as collected, the court, refusing the information, referred the prosecutors to the ordinary remedy by indictment. R. v. Ministers, &c. of St. Botolph, 1 W. Bl. 443. Vide post, title, Officers.

Again, where two persons were indicted for enabling persons to pass their accounts with the pay-office, in such a way as to defraud the government, and it

(1) Resp. v. Teischer, 1 Dall. 338. Commonwealth v. Eckert, 2 Browne, 251. Resp. v. Powell, 1 Dall. 47.

(2) Resp. v. Powell, 1 Dall. 47. Commonwealth v. Wade, Whart. Dig. 166.

was objected that it was only a private matter of account, and not indictable, the court decided otherwise, as it related to the public revenue. Bembridge's case, eited 6 East, 136.

Another class of frauds affecting the public, is cheating by false weights and measures, which carry with them the semblance of public authenticity. Thus, the counterfeiting the general seal or mark of a trade upon cloth of a certain description and quality, is indictable. Worrel's case, Trem. P. C. 106; 2 East, P. C. 820. So where the defendant has measured corn in a bushel, and put something in the bushel to fill it up, or has measured it in a bushel short of the stated Per cur. Pinkney's case, 2 East, P. C. 820.

measure.

What cheats are not indictable.] It is not, however, every species of fraud and dishonesty in transactions between individuals which is the subject-matter of a criminal charge at common law; but in order to constitute it such, it must be an act affecting the public, such as is public in its nature, calculated to defraud numbers, and to deceive the people in general. 2 East, P. C. 816.

Where an imposition upon an individual is effected by a false affirmative or bare lie, in a matter not affecting the public, an indictment is not sustainable.(1) Thus where an indictment charged the *defendant with selling to a [*381] person eight hundred weight of gum, at the price of seven pounds per hundred weight, falsely affirming that the gum was gum seneca, and that it was worth seven pounds per hundred weight, whereas it was not gum seneca, and was not worth more than three pounds, &c., the indictment was quashed. Lewis's case, Sayer, 205.

So where the party accompanies his assertion with an apparent token of no more value than his own assertion. Thus, where an indictment at common law charged that Lara, deceitfully intending by crafty means and devices, to obtain possession of divers 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 (Lara) &c., purporting to be a draft upon his banker for the amount, which he knew he had no authority to do, 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 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 check drawn by himself entitled him to no more credit than his bare assertion that the money would be paid. Lara's case, 2 East, P. C. 819; 6 T. R. 565; 2 Leach, 652. But such an offence is punishable as a false pretence under the statute. Vide post, title, False pretences. So where the defendant, a brewer, was indicted for sending to a publican so many vessels of ale, marked as containing such a measure, and writing a letter assuring him that they did contain such a measure, when, in fact, they did not contain such measure, but so much less, &c., the indictment was quashed on motion, as containing no criminal charge. Wilder's case, cited 2 Burr, 1128; 2 East, P. C. 819. Upon the same principle, where a miller was indicted for detaining corn sent to him to be ground, the indictment was quashed, it being merely a private injury, for which an action would lie. Channel's case, 2 Str.

(1) Commonwealth v. Warren, 6 Mass. 72. But when a man induces another by false representations and false reading, to sign his name to a note for a different amount than that agreed upon, it has been held to be a cheat for which he may be indicted. Hill v. The State, 1 Yerger, 76.

793; 1 Sess. Ca. 366; 2 East, P. C. 818. So selling sixteen gallons of ale as eighteen-Lord Mansfield said, "it amounts only to an unfair dealing, and an imposition upon this particular man, from which he could not have, suffered but for his own carelessness in not measuring the liquor when he received it; whereas fraud, to be the object of a criminal prosecution, must be of that kind, which in its nature is calculated to defraud numbers, as false weights and measures, false tokens, or where there is a conspiracy." Wheatley's case, 2 Burr. 1125; 1 W. Bl. 273; 2 East, P. C. 818. Where a miller was charged with receiving good barley, and delivering meal in return different from the produce of the barley, and musty, &c., this was held not to be an indictable offence. Lord Ellenborough said, that if the case had been, that the miller had been 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 he, abusing the confidence of his situation, had made it a colour for practising a fraud, this might have presented a different aspect; but as it then stood, it seemed to be no more than the case of a common tradesman, who was guilty of a fraud in a matter of trade or dealing, such as was adverted to in Wheatly's case (supra) and the other cases, as not being indictable. Hayne's case, 4 M. & S. 214; Vide Wood's case, 1 Sess. Ca. 217; 2 Russ by Grea. 285.(1) [*382] *The indictment stated that the defendant came to M. in the name of J., to borrow 5l., on which M. lent her the 57., ubi re vera she never had any authority from J. to borrow the money. The defendant being convicted, on motion in arrest of judgment, the whole court thought this not an indictable offence. Holt, C. J., put the following case:-A young man seemingly of age, came to a tradesman to buy some commodities, who asked him if he was of age, and he told him he was, upon which he let him have the goods, and upon an action, he pleaded infra ætatem, and was found to be under age half-a-year; and afterwards the tradesman brought an action upon the case against him for a cheat; but after a verdict for the plaintiff, judgment was arrested. Powell, J., said, if a woman pretending herself to be with child, does with others conspire to get money, and for that purpose goes to several young men, and says to each that she is with child by him, and that if he will not give her so much money, she will lay the bastard to him, and by these means gets money of them, this is indictable. Holt, C. J., added, "I agree it is so when she goes to several, but not to one particular person." Glanvill's case, Holt, 354. From the last observation of Holt, C. J., it appears that Powel, J., was speaking of an indictment for cheating, and not, as might be supposed, from using the words, "does with others conspire," of an indictment for conspiracy.

(1) People v. Babcock, 7 Johns. 201. Commonwealth v. Warren, 6 Mass. 72. People v. Stone, 9 Wind. 182. State v. Stroll, 1 Richardson, 244.

The offence of child stealing is now provided against by the 9 Geo. 4, c. 31, s. 21; which enacts, "if any person shall maliciously, either by force or fraud, lead or take away, or decoy or entice away, or detain any child under the age of ten years, with intent to deprive the parent or parents, or any other person having the lawful care or charge of such child, of the possession of such child, or with intent to steal any article upon or about the person of such child, to whomsoever such article may belong; or if any person shall, with any such intent as aforesaid, receive or harbour any such child, knowing the same to have been, by force or fraud, led, taken, decoyed, enticed away, or detained as herein before mentioned, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof, shall be liable to be transported beyond the seas for the term of seven years, or to be imprisoned with or without hard labour in the common gaol or house of correction, for any term not exceeding two years; and if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprisonProvided always, that no person, who shall have claimed to be the father of an illegitimate child, or to have any right to the possession of such child, shall be liable to be prosecuted by virtue hereof, on account of his getting possession of such child, or taking such child out of the possession of the mother, or any other person having the lawful charge thereof."

ment.

The Irish stat. the 10 Geo. 4, c. 34, s. 25, is, word for word, a transcript of the 9 Geo. 4, c. 31, s. 21.

To support an indictment under this statute, the prosecutor must prove-1. The leading or taking away, decoying or enticing away of the child, either by force or fraud, as alleged in the indictment. Where the child is not produced as a witness, or is of such tender years as to be unable to give evidence, the taking or decoying, &c., must be proved by the other circumstances of the case. 2. The age of the child. It must be proved that the child is not more than ten years of age; but the precise age mentioned in the indictment is not material. 3. The intent must be proved as laid, and will in general be gathered from all the circumstances of the case. An intent to deprive the parents, &c., of the lawful care or charge of the child may be inferred from the secret manner in which it was taken away. As to the "persons having the lawful care or charge of the child," vide title, Abduction, ante, p. 264.

Statute.] The offence of concealing the birth of a child was first provided against by the 21 Jac. 1, c. 27, which was repealed by the 43 Geo. 3, c. 58. The latter statute was also repealed by the 9 Geo. 4, c. 31, which by s. 14 enacts, "that if any woman shall be delivered of a child, and shall, by secret burying, or otherwise disposing of the dead body of the said child, endeavour to conceal the birth thereof, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding two years; and it shall not be necessary to prove whether the child died before, at, or after its birth; provided always, that if any women tried for the murder of her child shall be acquitted thereof, it shall be lawful for the jury, by whose verdict she shall be acquitted, to find, in case it shall so appear in evidence, that she was delivered, and that she did, by secret burying or otherwise disposing of the dead body of such child, endeavour to conceal the birth thereof; and thereupon the court may pass such sentence, as if she had been convicted upon an indictment for the concealment of the birth."(1)

The Irish stat. 10 Geo. 4, c. 34, s. 17, is in the same words.

Upon a prosecution for this offence, the prosecutor, after establishing the birth of the child, must prove the secret burying, or other disposal of the dead body; and the endeavour to conceal the birth. In general, the evidence to prove the first points will also tend to establish the last.

Secret burying, or other disposal of the body.] What has been a sufficient disposal of the body has been a matter of doubt. Where the evidence was that the prisoner had been delivered of a child, and had placed it in a drawer, where it was found locked up, the drawer being opened by a key taken from the prisoner's pocket, Maule, J., directed an acquittal, being of opinion that the statute by the words, "or otherwise disposing of," contemplated a final disposing of the body. Emma Ash's case, 2 Moo. & R. 294. So where the prisoner had placed the child in a box in her bed-room, Rolfe, B., held that the disposing of the body must be in some place intended for its final deposit. Bell's case, MS. 2 Moo. & R. 294. These authorities seem overruled by the following case. The prisoner [*385] had *been suspected of being with child, but always denied it, and after her delivery, persisted in denying that she had been delivered; but on being pressed by the surgeon, who examined her, she confessed that the child was between the bed and the mattrass, where it was discovered. The jury found her guilty of concealing the birth. Mr. Justice Wightman was about to sentence the prisoner, when it was represented to him that it had been held in two cases

(1) See Pennsylvania v. M'Kee, Addison, 1. Boyles v. The Commonwealth, 2 Serg. & Rawle, 50.