Thames. By the 2 & 3 Vict. c. 47, s. 26, "every person who within the Receiving metropolitan police district shall knowingly take in exchange from stores on the any seaman or other person, not being the owner or master of any vessel, anything belonging to any vessel lying in the river Thames or in any of the docks or creeks adjacent thereto, or any part of the cargo of any such vessel, or any stores or articles in charge of the owner or master of any such vessel, shall be deemed guilty of a misdemeanor." By sec. 27, "every person who shall unlawfully cut, damage, or Cutting ropes. destroy any of the ropes, cables, cordage, tackle, headfasts, or other the furniture of or belonging to any ship, boat, or vessel lying in the river Thames or in any of the docks or creeks adjacent thereto, with intent to steal or otherwise unlawfully obtain the same or any part thereof, shall be deemed guilty of a misdemeanor." By sec. 28, "it shall be lawful for any constable to take into custody every person who, for the purpose of preventing the seizure or discovery of any materials, furniture, stores, or merchandise, belonging to or having been part of the cargo of any ship, boat, or vessel lying in the river Thames or the docks or creeks adjacent thereto, or of any other articles unlawfully obtained from any such ship or vessel, shall wilfully let fall or throw into the river, or in any other manner convey away from any ship, boat, or vessel, wharf, quay, or landing place, any such article, or who shall be accessory to any such offence, and also to seize and detain any boat in which such person shall be found or out of which any article shall be so let fall thrown, or conveyed away; and every such person shall be deemed guilty of a misdemeanor." CHAPTER THE THIRTY-FIRST. OF CHEATS, FRAUDS, FALSE TOKENS, AND FALSE PRETENCES. WHERE the possession of goods is obtained, in the first instance, without fraud upon a contract or trust, a subsequent dishonest conversion of them, while the privity of contract continues undetermined, will in general be only a breach of trust or civil injury, and not the subject of a criminal prosecution. (a) But where the party obtaining the goods has recourse to fraudulent means in the first instance, and thereby succeeds to the extent of inducing the owner not only to deliver the possession of the goods to him but absolutely to part with the property in them, though such a taking will not, as we have seen, be considered as felonious and amounting to larceny, (b) yet if effected by means of a false pretence, it will come within the enactment of the 7 & 8 Geo. 4, c. 29, s. 53, and be punishable as a misdemeanor. And that statute, reciting the frequent failure of justice from the subtle distinction between larceny and fraud, provides, that if upon the trial of any person indicted for such misdemeanor, it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall not by reason thereof, be entitled to be acquitted of such misdemeanor. There are also other statutes which relate to particular cheats and frauds therein specified. And besides the offences of this kind punishable by statute, the common law also provides for the punishment of many of such cheats and frauds as may There must be affect the public welfare. It was decided that, in order to constitute a cheat properly so called, there must be a prejudice received, both at common law and under the statutes (now repealed) of 33 Hen. 8, c. 1, and 30 Geo. 2, c. 24. (c) a prejudice to the party cheated. In treating of these offences we may consider; I. Of cheats and frauds punishable at common law. II. Of cheats and frauds by means of false pretences, within the 7 & 8 Geo. 4, c. 29, s. 53; and III. Of some of the cheats and frauds punishable by other statutes. (a) 3 Inst. 107. 2 East, P. C. c. 16, (b) Ante, p. 24, et seq. And see the case, 2 East, P. C. c. 16, s. 112, p. 689, note (a). (c) Ward's case, 13 Geo. 1. 2 Lord Raym. 1461. 2 Str. 747. 2 East, P. C. c. 19, s. 7, p. 860, 861. SECTION I. Of Cheats and Frauds Punishable at Common Law. Those cheats which are levelled against the public justice of the Cheats against kingdom are indictable at common law. (d) Judicial acts done public justice. without authority, in the 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. (f) 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. (g) 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. (h) 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. Amongst offences of this description, is the selling of unwholesome provisions. (k) And it is said, more largely, that the giving of any (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 shewing that it was punishable were 2 Hawk. P. C. c. 22, s. 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 (h) Omealy v. Newell, 8 East, 364, and (i) Fawcett's case, York Spr. Ass. 1793, Frauds affecting the crown and public. Selling un wholesome provisions. Treeve's case. Supplying prisoners of war with unwholesome food, not fit to be eaten by man, holden an indict able offence. Dixon's case. Holden to be an indictable offence for a baker to sell bread containing alum in a shape which renders person unwholesome victuals, not fit for man to eat, lucri causá, or from malice and deceit, is undoubtedly, in itself, an indictable offence. (1) A case is reported, where the indictment against the defendant was, that he knowingly, wilfully, deceitfully, 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 then and there made and baked in an unwholesome and insufficient manner, and then and there being made of, and containing dirt, filth, and other pernicious and unwholesome materials and ingredients, not fit to be eaten by man; and the said defendant then and there 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 then and there eat of the said bread, and thereby then and there became distempered in their bodies, and injured and endangered in their healths; to the great damage of the French prisoners, to the great discredit of our said lord the king, to the evil example, &c., and against the peace, &c. (m) 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. (n) 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. (0) 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 in evidence 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. penalty. On the part of the dehave rendered fendant it was proved that though he permitted alum to be used to assist the operation of the yeast, and to make the loaves look it noxious, although he gave directions to his servants to mix it up in a manner which would it harmless. (1) 2 East, P. C. c. 18, s. 4, p. 822. different prisons. (n) Treeve's case, 1796. 2 East, P. C. c. 18, s. 4, p. 821. (0) 2 East, P. C. c. 18, s. 4, p. 822. 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 that 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 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 statute 37 Geo. 3, c. 98, shews 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 answerable 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 of this indictment." And the defendant was accordingly convicted. (p) The point was afterwards brought under the consideration of the Court of King's Bench, who concurred in the direction of Lord Ellenborough 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." (q) A case is reported where the court of King's Bench held that the Mala praxis mala praxis of a physician is a great misdemeanor and offence at of a physician. 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. (r) (p) Rex v. Dixon, cor. Lord Ellenborough, C. J., Guildhall, 1814, 4 Campb. 12. See precedents for similar offences, 2 Chit. Crim. L. 556, et seq. 2 Stark. Crim. Plead. 682. (q) 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 certain without shewing 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 |