Sec. I-Of Cheats and Frauds Punishable at Common Law. Those cheats which are levelled against the public justice of the kingdom are indictable at common law. (d) Judicial acts done without authority, in the *605] name of another, are cheats of this *description; but as they are generally attended by a false personating of some one, they will come under consideration in a subsequent chapter. (e) It may briefly be mentioned in this place, that with respect to a precedent of an indictment against a married woman, for pretending to be a widow, and as such executing a bail bond to the sheriff for one arrested on a bailable writ, it is observed, that perhaps this was considered as a fraud upon a public officer, in the course of justice.(ƒ) And another case should be noticed. where, upon an application to the Court of King's Bench to discharge a defendant who had been holden to bail under a judge's order, made upon an affidavit of debt sworn before a magistrate at Paris, the court desired that the counsel would speak upon the point, how far the making, or knowingly using such an affidavit, if false, was punishable.(9) And after argument, Lord Ellenborough, C. J., said, that he had not the least doubt that any person making use of a false instrument, in order to pervert the course of justice, was guilty of an offence punishable by indictment.(k) In a former case it had been holden, that a person who, being committed to gaol 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, in thus affecting an interruption to public justice; although, the attachment not being for non-payment of money, the order was in itself a mere nullity, and no warrant to the sheriff for the discharge.(i)

Those frauds which affect the crown and the public at large are also clearly the subject of indictment, though they may arise in the course of some particular transaction or contract with private individuals.2

Amongst offences of this description is the selling of unwholesome provisions.(j) And it is said, more largely, that the giving of any person unwholesome victuals, not fit for man to eat, lucri causâ, or from malice and deceit, is undoubtedly, in itself, an indictable offence.(k)

(d) 2 East P. C. c. 18, s. 4, p. 821.

(e) Post, Chap. Of Falsely Personating, &c.

(f) 2 East P. C. c. 18, s. 4, p. 821, citing Rex v. Blackburn, M. 36; Car. 2; Trem. P. C. 101; Cro. Circ. Comp. 78.

(g) The authorities referred to for the purpose of showing that it was punishable were 2 Hawk. P C. c. 22, ss. 1, 38 and 39 (which cites Waterer v. Freeman, Hob. 205, 266); Worley v. Harrison, Dy. 249 a, pl. 84; Rex v. Mawbey, 6 T. R. 619, 635; Rex v. Crossley, 7 T. R. 315, and 2 East P. C. 821, which cites the authorities mentioned, ante, note (ƒ). (h) Omealy v. Newell, 8 East 364, and his Lordship said that the case of the King . Mawbey (ante, note (g)), went the whole length of the proposition. (i) Fawcett's case, 2 East P. C. c. 19, s. 7, p. 862, and s. 45, p. 952. more at large, post, Chap. Of Forgery, s. 2, upon the point of the offence being indictable as a forgery.

(j) 4 Blac. Com. 162.

See the case cited

(k) 2 East P. C. c. 18, s. 4, p. 822.

1 As to cheats at common law, see Comm. v. Moore, 2 Mass. 139; Comm. v. Warren, 6 Mass. 72; People v. Babcock, 7 Johns. 201; People v. Miller, 14 Ibid. 371; 9 Cow. 578; People v. Johnson, 7 Johns. 204; Resp. v. Powell, 1 Dall. 47; Resp. v. Teeschie, 1 Dall. 338; People v. Tompkins, 1 Parker C. R. 224; Comm. v. Henry, 10 Harris, 253; State v. Corbett, 1 Jones (Law) 264; Comm. v. Woodrun, 4 Clarke 207.

2 The obtaining of a false credit, otherwise than by false tokens, and the removal and secreting of goods with intent to defraud creditors, are not indictable at common law: Hartman v. Comm., 5 Barr 60. To sustain an indictment at common law, for cheating by a false token, the instrument or device by which the cheat was effected must be calcu lated to deceive the public; that is, it must be the semblance of a public and not a private instrument: it must be such as affects or may affect the public: State v. Stroll, i Rich. 244. Defendants purchased goods from the prosecutor's clerk, and gave in payment an instrument purporting to be a five dollar bank note-the blanks of which were filled up except those opposite the words "Cashier," and "President." In those blanks an illegi ble scrawl was written, which, on careless inspection might have been mistaken for the names of those officers. Defendants knew before they had passed the instrument that it was worthless; held, that they were guilty at common law of cheating by a false token: State v. Stroll, 1 Rich. 244.

Where the indictment charged the defendant that he knowingly, wilfully, deceit fully, and maliciously, did provide, furnish, and deliver to and for eight hundred French prisoners of war, whose names were unknown, and being under the protection of the King, confined in a certain hospital, called Eastwood hospital, divers large quantities, to wit, five hundred pounds weight of bread, to be eaten as food, by the said French prisoners of war, such bread being made and baked in an unwholesome and insufficient manner, and being made of and containing [*606 dirt, filth, and other pernicious and unwholesome materials and ingredients, not fit to be eaten by man: and the said defendant well knowing the said bread to be baked in an unwholesome and insufficient manner, and to be made of, and to contain dirt, filth, and other pernicious and unwholesome materials and ingredients, not fit to be eaten as aforesaid, whereby the said prisoners of war did eat of the said bread, and thereby became distempered in their bodies, and injured and endangered in their healths, to the great damage of the French prisoners, &c.(1) And the defendant having been convicted, it was objected, in arrest of judgment, that the offence as laid was not indictable; as it did not appear that what was done was in breach of any contract with the public, or of any moral or civil duty; and the judgment was respited to take the opinion of the judges upon the point; when they all held the conviction right.(m) In this case, the defendant was a contractor with government for the supplying of provisions to some of the French prisoners, then in this country: but the indictment did not state this fact; and it is observed that it was not material to state it otherwise than as matter of aggravation, if such a case wanted any; as there could be no doubt of the offence being in itself the subject of indictment upon the principles already mentioned (n)

In a more recent case the indictment charged the defendant, a baker, with supplying to the Royal Military Asylum at Chelsea, as and for good wholesome household loaves, divers loaves mixed with certain noxious ingredients, not fit for the food of man, which he well knew so to be at the time he so supplied them. It appeared that many of the loaves delivered by the defendant at the Military Asylum on a particular day were strongly impregnated with alum, and that there were found in them several pieces of alum in its crystalline form as large as horse-beans; the tendency of alum to injure the health was also proved; and a statute 37 Geo. 3, c. 98, s. 21, referred to, by which the use of alum in the making of bread is prohibited under a penalty. On the part of the defendant it was proved that, though he permitted alum to be used to assist the operation of the yeast, and to make the loaves look white, yet, that very great care was employed in the use of it; that it was first dissolved, and then used in such small quantities, and so equally distributed, as not to be capable of occasioning injury; and that if, on any particular occasion, the loaves delivered at this asylum had alum put into them in a different manner, it was quite contrary to the directions and intentions, and wholly without the knowledge or privity of the defendant. And it was contended that these facts completely negatived the averment in the indictment that the defendant, at the time these loaves were delivered, well knew that they were not wholesome, and they were unfit for the food of man and it was urged that the defendant could not be criminally responsible for the acts of his servants. But by Lord Ellenborough, C. J., "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 [*607 injurious form, although, if equally spread over the mass, it would have done no harm. If a baker will introduce such a substance into his bread, he must do it at his own hazard, and he must take especial care that the benefit he proposes to himself does not produce mischief to others. He is engaged in an illegal act, and he must abide the consequences. The 37 Geo. 3, c. 98, shows the judgment of the Legislature with regard to alum, and a medical gentleman has given evidence as to its deleterious effects. If taken in very minute quantities it is innoxious. The same may be said of calomel, and even of arsenic. But would not a baker be an

(1) There were eight other counts in the indictment charging the offence to have been done at different times, and in different prisons.

(m) Treeve's case, 1796, 2 East P. C. c. 18, s. 4, p. 821.

(n) 2 East P. C. c. 18, s. 4, p. 822.

swerable for selling bread having these substances mixed with it in a dangerous form, although he intended they should be so equally subdivided over the whole mass which he baked at one time that no harm could follow? If the defendant was cognizant of the manner in which his business was carried on, and knew that alum was at all used in the making of the loaves sent to the Military Asylum, which are proved to have contained it to a very dangerous degree, he is guilty on this indictment." And the defendant was accordingly convicted.(o) The point was afterwards brought under the consideration of the Court of King's Bench, who concurred in the direction given at the trial; and Lord Ellenborough said, “ He who deals in a perilous article must be wary how he deals; otherwise, if he observe not proper caution, he will be responsible."(p)

A case is reported where the Court of King's Bench held that the mala praxis of a physician is a great misdemeanor and offence at common law (whether it be for curiosity and experiment, or by neglect), because it breaks the trust which the party has placed in the physician, and tends directly to his destruction.(q)

In some cases the rendering false accounts and other frauds practised by persons in official situations, have been deemed offences so affecting the public as to be indictable. Thus, where two persons were indicted for enabling persons to pass their accounts with the pay office in such a way as to enable them to defraud the govern ment; and it was objected that it was only a private matter of account, and not indictable; the court held otherwise, as it related to the public revenue.(r) And instances appear in the books of indictments against overseers of the poor for refusing to account.(s) and for rendering false accounts (1) *And a precedent *608] is given of an indictment against a surveyor of the highways for converting

to his own use gravel which had been dug at the expense of the inhabitants of the parish, and also for employing for his own private gain and emolument the laborers and teams of the parishioners, which he ought to have employed in repairing the highways. (u) A case is also mentioned of an application to the Court of King's Bench for an information against the minister and churchwardens of a parish, who had spent the larger part of a sum of money, collected by a brief for certain sufferers by fire, at tavern entertainments, and then returned, upon the back of the brief, that the smaller sum only was collected; and the court, though they refused the information, yet referred the prosecutors to the ordinary remedy by indictment.(e) A fraud committed by a parish officer, in procuring the marriage of a pauper, so as to throw the burden of maintaining such pauper on another parish, may also, as we have seen, be an indictable offence. (w) And several precedents are given of indictments for misdemeanors in procuring sick and impotent persons, standing in need of immediate relief, to be conveyed into parishes where they had no settlements, and in which they shortly afterwards died, thereby causing great expense to the inhabitants of such parishes.(x)

(0) Rex v. Dixon, 4 Campb. 12, Lord Ellenborough, C J. See precedents for similar offences, 2 Chit. Crim. L. 556, et seq.; 2 Stark. Crim. Plead. 682.

(p) Rex v. Dixon, 3 M. & S. 11. And some exceptions to the indictment, taken in arrest of judgment, were overruled; and the court held that the indictment was sufficiently cer tain without showing what the noxious materials were, or stating that the defendant intended to injure the children's health. Upon the last point Lord Ellenborough, C. J., said that it was an universal principle, that when a man is charged with doing an act, of which the probable consequence may be highly injurious, the intention is an inference of law resulting from doing the act; and that in this case it was alleged that the defendant delivered the loaves for the use and supply of the children, which could only meat for the children to eat; for otherwise they would not be for their use and supply. And see Rex v. Bower, post, p. 609, note (j).

(9) Dr. Groenvelt's case, I Ld. Raym. 213.

(r) Rex v. Bembridge, cited 6 East 136; ante, vol. 1, p. 207; 22 St. Tri. (by Howell) p. 1.

(8) Reg. v. Commings, 5 Mod. 179; 1 Bott. pl. 370.

(1) Rex v. Martin, 2 Campb. 26,9; 3 Chit. Crim. L. 701; 2 Nol. (2d ed.) 230, note (4); ante, vol. 1, p. 207.

(u) 3 Chit. Crim. L. 666, et seq.

(v) Rex v. The Minister, &c., of St. Botolph, 1 Black. Rep. 443.

(w) Ante, vol. 1, p. 202; Rex r. Tarrant, 4 Burr. 2106.

(x) 3 Chit. Crim. L. 698, et seq.

And see ante, vol. 1, p. 202.

It is said to have been resolved by all the judges that writers of false news are indictable and punishable; and that probably at this day the fabrication of news, likely to produce any public detriment, would be considered as criminal.(y)

Where an indictment charged that the defendant, being an apprentice, and fraudulently intending to obtain money from the paymaster of a regiment, and to defraud the King, &c., procured himself to be enlisted as a soldier, without the consent of his master, by means whereof he fraudulently obtained from the paymaster divers sums of money, well knowing himself to be, without the consent of his master, disqualified from serving as a soldier, to the great deceit, fraud, &c., of the King, &c., it appears to have been admitted that this was an offence at common law. But the conviction was holden bad, on the ground that the necessary proof of the indenture of apprenticeship had not been given at the trial, there being two subscribing witnesses to the indenture, and neither of them having been produced.(z) The offence is now made punishable by a provision of the Mutiny Acts.

A case is mentioned where a person, falsely pretending that he had power to discharge soldiers, took money from a soldier to discharge him; and being indicted for this offence, the court held the indictment to be good.(a)

A curious species of fraud may be here mentioned. It is laid down in the books that, by the common law, if a person maim himself in order to have a more specious pretence for asking *charity, or to prevent his being impressed as a sailor, or enlisted as a soldier, he may be indicted, and, on conviction, fined and imprisoned.(b)

[*609

Besides the offences which have been here mentioned, there are other instances of cheats clearly affecting the public, and therefore indictable; namely, such cheats as are effected by means of false weights or measures, which are considered as instruments or tokens purposely calculated for deceit, and by which the public in general may be imposed upon without any imputation of folly or negligence. And this reasoning is considered as applying to all cases where any species of false token is used which has the semblance of public authenticity:(c) as to a case where cloth was sold with the alneager's seal counterfeited thereon;(d) and to another case where a general seal or mark of the trade on cloth of a certain description and quality was deceitfully counterfeited.(e) And the instances mentioned in the books of cheating by means of false dice, &c.,(f) are referred to the same principle.(g)

If, therefore, a person selling corn should measure it in a bushel short of the statute measure, or should measure it in a fair bushel, but put something into the bushel to help to fill it up, it seems that he might be indicted for the cheat.(h) And a precedent was given of an indictment against a baker, who had contracted with a guardian of the poor, in the city of Norwich, to supply bread for the use of the poor, for delivering bread deficient in weight.() And though the knowingly exposing to sale and selling wrought gold, under the sterling alloy, as and for gold of the true standard weight, was holden not to be an indictable offence, but a private imposition only, in a common person, where no false weight or measure was used ;(j) (y) Starkie on Lib. 546, citing 4 Read. S. L. Dig. L. L. 23; et vide Hale's Sum. 132, et per Scroggs, C. J.; Rex v. Harris, 7 St. Tri. (by Howell) 929. See the 7 & 8 Vict. c. 24, 8. 4, ante, vol. 1, p. 252.

(z) Jones's case,

Leach 174; 2 East P. C. c. 18, s. 4, p. 822.

(a) Serlestead's case, 1 Latch. 202.

(b) 1 Hawk. P. C. c. 55, Of Maiming, &c., s. 4; 1 Hale 412; Co. Lit. 127 a.

(c) 2 East P. C. c. 18, s. 3, p. 820. (e) Worrell's case, Id. 106.

(d) Edwards's case, Trem. P. C. 103.

As to the deceitful making of linen cloth, see 3 Burn's Just. Linen Cloth, and 1 Eliz. c. 12, s. 1. And as to the deceitful working of woollen cloth, see 5 Burn's Just., Woollen Manufacture.

(f) Leeser's case, Cro. Jac. 497; Maddock's case, 2 Roll. R. 107; 2 Roll. Ab. 78. The practice is now punishable under the 8 & 9 Vict. c. 109, s. 17, ante, vol. 1, p. 624.

(g) 2 East P. C. c. 18, s. 3, p. 820.

(h) Per Cur. in Pinckney's case, 2 East P. C. c. 18, s. 3, p. 820. As to the penalties for selling or buying corn otherwise than by the proper measure, see 1 Burn's Just., Corn. (i) 2 Chit. Crim. L. 559; but it has since been held bad: Ibid. See the account of this case in Dears. C. C. 516, et seq., and see Reg. v. Eagleton, infra. As to the assize of bread, &c., see 1 Burn's Just, Bread.

(j) Rex v. Bower, Cowp. 323. In this case the sale of the gold was by a servant of the defendant; but the court agreed that the master was responsible for the act of his servant VOL. II.-30

yet, if in such case the stamps or marks required by statute on plate of a certain alloy, had been falsely used, it should seem that the indictment might have been sustained.(k) In the case in question the gold was not marked; and Aston, J., in giving his opinion, said that it was not selling by false measure, but only selling under the standard; and he cited a case in which it had been holden that *610] * *selling coals under measure was not an indictable offence, but that selling them by false measure was.() And the result of the cases upon this subject appears to be that if a man sell by false weights, though only to one person, it is an indictable offence; but if without false weights he sell to many persons a less quantity than he pretends to do, it is not indictable.(m)

The first seven counts of an indictment charged the defendant with a fraud at common law: he was alleged to have contracted with the guardians of the poor to deliver for a certain term to the out-door poor of their parish, in such manner as the guardians should direct, quantities of bread made of the best household flour, in loaves, each loaf weighing 34lbs., to be paid for at sevenpence a loaf; and was charged with having delivered loaves to different paupers of less weight, intending to deprive them of proper food and sustenance, and to endanger their healths and constitutions, and to defraud the guardians of the poor; and, upon a case reserved after a verdict of guilty, it was held that the conviction was wrong; as the delivering less than the quantity contracted for was a mere private fraud, no false weights or tokens having been used; and further that it did not appear to be indictable on the ground that the defendant delivered unwholesome provisions, nor was that offence charged in the indictment.(n)

A second count stated that one J. Linnell was an artist in painting of great celebrity, and had painted a valuable picture, whereon he had painted his name to denote that the picture had been painted by him, and that the prisoner, well knowing the premises, and intending to cheat, did keep in his shop a certain painted copy of the said picture, on which copy was unlawfully painted and forged the name of the said J Linnell, with intent thereby to denote that the said copy was an original picture painted by the said J. Linnell, and that the prisoner, well knowing the said picture to be such copy, and the name of the said J. Linnell to be forged, fraudulently did offer and expose for sale the said copy with the said forged name upon it, and did offer, utter, sell and dispose of the said copy as and for the genuine picture of the said J. Linnell, with intent to cheat H. F. of his valuable securities, and that the prisoner did so fraudulently cheat the said H. F. of a check and three bills of exchange, with intent to defraud. And, on a case reserved after conviction, it was held that this count was bad. Cockburn, C. J.: "We have carefully examined the authorities, and the result is that we think if a person in the course of his trade, openly and publicly carried on, were to put a false mark upon an article so as to pass it off as a genuine one, when in fact it was only a spurious one, and the article was sold and money obtained by means of that false mark or token, that would be a cheat at common law. As, for instance, if a man sold a gun with *611] a mark of a particular manufacturer upon it, so as to make it appear * the genuine production of the manufacturer, that would be a false mark or token, and the party would be guilty of a cheat, and therefore liable to punishment, if the indictment were fairly framed so as to meet the case; and therefore upon the second

like

done in the course of his employment, and within the scope of his authority. And see as to this point Rex v. Dixon, ante, p. 607. That it would be indictable in a goldsmith so to sell gold (under the statute), see 2 East P. C. c. 18, s. 3, p. 820, and Cowp. 324.

(k) 8 East P. C. c. 18, s. 3, p. 820, note (b). And see 1 East P. C. c. 4, s. 34, p. 194. where it is said that offenders fraudulently affixing public and authentic marks on goods of a value inferior to such tokens are liable to suffer at common law upon an indictment for a cheat.

(1) The case cited was Rex v. Lewis. And the learned judge also cited Rex v. Wheatly, 2 Burr. 1125, post, p. 616. See also Rex v. Driffield, Say. 146.

(m) Per Buller, J., in the case of Rex v. Young, 3 T. R. 104. And see Rex v. Nicholson, cited in Rex v. Wheatly, 2 Burr. 1130, and Rex v. Dunnage, 2 Burr. 1130; Rex v. Driffield, Say. 146.

(n) Reg. v. Eagleton, Dears. C. C. 376 and 515. The statement in the text is from the judgment of Parke, B., at p. 533.