sentation as a loose conjectural estimate of the value of the aggregate. The test is, is the article sold by weight, and is a deliberate false statement made that it is of a particular weight? If If so, there is a false pretence. Thus, the prisoner having contracted to sell and deliver to the prosecutrix a load of coals at 7d. per cwt., delivered to her a load of coals which he knew weighed only 14 cwt., but which he stated to her contained 18 cwt., and produced a ticket showing such to be the weight, which he said he had made out himself when the coals were weighed. She thereupon paid him the price as for 18 cwt., which was 2s. 4d. more than was his due. It was held that the prisoner was indictable for obtaining the 2s. 4d. by false pretences. And the same result was reached in a case where the defendant declared that he sold a parcel as 14 tons of coal, when in fact it was but 8 tons, heaping it so as to swell its bulk.3 In another case a baker had contracted with the guardians of a parish to deliver loaves of a certain weight. The relieving officer gave the poor applicants tickets, which they were to take to the baker. He was to give them loaves on their presenting their tickets to him, and afterward return the tickets, as his vouchers, once a week, with a statement of the amount of the loaves, to the relieving officer, who would give him credit in his account for the amount. The baker was to be paid by the guardians some months later; and by a clause in the contract the guardians had the power, in case of a breach of contract by the baker, of deducting any damage caused by such breach from the amount to be ultimately paid. The baker supplied the poor people who presented tickets with loaves short of the contract weight. It was held that though this was not a fraud indictable at common law, the baker, by returning the tickets for these loaves to the relieving officer, was guilty of falsely pretending that the loaves were of full weight; and though he only obtained credit for their amount in the books of the relieving officer (as the time of payment had not arrived before detection), yet that the baker might be indicted for attempting to obtain money by the false pretence, as the making the false pretence was an act done with the intent of obtaining the money and was sufficiently proxi 1 R. v. Ridgway, 3 F. & F. 838- Lee, L. & C. C. C. 418; 9 Cox C. C. Bramwell. 460; R. v. Ridgway, 3 F. & F. 838. 3 R. v. Goss, supra; R. v. Ragg, supra. 2 R. v. Sherwood 40 Eng. Law & Eq. 584; Dears. & B. C. C. 251; R. v. mate to the obtaining it to be considered an attempt, since no other act remained to be done by the baker to entitle him to receive the money.1 False state ment as to property offered for loan or sale may be statute. § 1160. When we come to false statements as to property on which money is to be raised, we apply the same test. Is the statement of value a mere conjectural opinion? If so, it is not a false pretence.2 Is it an exact statement as to some particular fact about such property, essential in determining its value? Then it may be a false pretence.3 within Hence a false statement as to the soundness of a horse may be a false pretence. The principle was extended to real estate in a case where A. applied to B. for a loan upon the security of a piece of land, and falsely and fraudulently represented that a house was built upon it. B. advanced the money upon A.'s signing an agreement for a mortgage, depositing his lease and executing a bond as collateral security. It was held that A. was properly convicted of obtaining money by false pretences. And the same distinction applies to the mortgage of personal property to which the defendant has no title, and to a false allegation that a particular mortgage was a first lien. The same limitations are applicable generally to 1 1 R. v. Eagleton, 33 Eng. Law & Eq. 540; Dears. C. C. 515; 6 Cox C. C. 559. Infra, 1231. Supra, 2 180, 1119. * Supra, 1192; Tuck v. Downing, 76 Ill. 71, 1875; Holbrook v. Connor, 60 Me. 578, 1872; Medbury v. Watson, 6 Metc. 246, 1843; Davis v. Meeker, 5 Johns. 354, 1810; Noetling v. Wright, 72 Ill. 390, 1874; People v. Gibbs, 98 Cal. 661, 1893. 3 Simar v. Canaday, 53 N. Y. 298, 1873; Kost v. Bender, 25 Mich. 515, 1872; Neil v. Cummings, 75 Ill. 170, 1874; Cruess v. Fessler, 39 Cal. 336, 1870; State v. McConkey, 49 Iowa, 499, 1878. * R. v. Keighley, D. & B. 145; Watson v. People, 87 N. Y. 561, 1882; 26 Hun, 76, 1881; State v. Stanley, 64 Me. 157, 1875; Com. v. Jackson, 132 Mass. 16, 1882; People v. Crissie, 4 Denio, 525, 1847. But see supra, 1155. In State v. Heffner, 84 N. C. 751, 1881, it was held that while to say that the eyes of a horse were sound was a mere opinion, not within the statute, it is otherwise with the statement that there has never been anything the matter with the horse's eyes. 5 R. v. Burgon, 36 Eng. Law & Eq. 615; Dears. & B. C. C. 11; 7 Cox C. C. 131. See State v. Hill, 72 Me. 238, 1881. 6 Com. v. Lincoln, 11 Allen, 233, 1865; State v. Newell, 1 Mo. 248, 1822. This and the following case are in some States (e. g., Massachusetts) specifically indictable by statute. As to selling mortgaged property, State v. Harberson, 43 Ark. 378, 1884; Beard v. State, 43 Ark. 284, 1884; State v. Williams, 32 Minn. 537, 1884. 7 People v. Sully, 5 Parker C. R. 142, 1860; State v. Butler, 47 Minn. 483, 1891. It should appear that defendant owned the property delivered the pretence that certain land is unincumbered; and this although the prosecutor might on further inquiry have learned the truth.2 To sell land already sold to another is also an indictable offence, unless the vendor is acting under mistake, and without intent to defraud.3 And so of false war ranty when not a mere § 1161. But a warranty when it is a mere statement as to matters transparently open to the vendee, or when it is an engagement to assume certain risks of title, is not a false pretence. Thus where the prisoner sold to the prosecutor a matter of reversionary interest which he had previously sold to anopinion. other, and the prosecutor took a regular assignment of it with the usual covenant of title, Littledale, J., held that he could not be convicted for obtaining money by false pretences; for if this were within the statute, every breach of warranty or false assertion at the time of a bargain might be treated as a false pretence. Such warranties, in fact, are mere matters of form, and considered as such; or, if they are inducements to purchase, are only so because they are promises by the vendor to hold the vendee harmless. But if a warranty is couched in the shape of a positive false statement of a material latent fact, which statement leads to the purchase, it is a false pretence. Nor is it any defence to a charge of false pretence that it was backed up by a written warranty as to the future.® § 1162. Obtaining goods by giving in payment a cheque upon a banker with whom the party keeps no account, and which he knows will not be paid, is clearly within the statute." So where one in a fictitious name delivered to a person to sell on commission spurious lottery tickets purporting to be signed by himself, and received from the And so of negotiat ing worthless or spurious paper. or had a right to dispose of it. Jenkins v. State, 97 Ala. 66, 1893. But see, under California statute, People v. Cox, 45 Cal. 342, 1873. 1 State v. Dorr, 33 Me. 498, 1851; State v. Hill, 72 Me. 238, 1881; Com. v. Grady, 13 Bush, 285, 1877. See People v. Hamberg, 84 Cal. 468, 1890. 2 Infra, 1186; People v. Sully, ut supra; though see Com. v. Brady, 13 Bush, 285, 1877. People v. Garnet, 35 Cal. 470, 1868. Infra, & 1192; State v. Young, 76 N. C. 258, 1877; State v. Chunn, 19 Mo. 233, 1853. agent the pro R. v. Codrington, 1 C. & P. 661. 6 R. v. Codrington, ut supra; State v. Chunn, 19 Mo. 233, 1853. 7 R. v. Kenrick, 5 Q. B. 49; Dav. & M. 208; R. v. Abbott, infra; State v. Dorr, 33 Me. 498, 1851; State v. Stanley, 64 Ibid. 157, 1875; State v. Jones, 70 N. C. 75, 1874; State v. Munday, 78 Ibid. 460, 1878; State v. Newell, 1 Mo. 248, 1822; Jackson v. People, 126 Ill. 139, 1888. See infra, ? 1180. 8 Watson v. People, 87 N. Y. 561 ; 26 Hun, 76, 1882. 9 R. v. Freeth, R. & R. 127; R. v. Jackson, 3 Camp. 370; 2 East P. C. ceeds of the sale, he was held liable to indictment for obtaining such agent's goods by false pretences.1 And so generally as to the passing of spurious notes or coin if goods or money be obtained thereby. But where the prisoner passed the note of a country bank which he knew had stopped payment, it appearing that one of the partners was solvent, Gaselee, J., held that he could not be convicted for obtaining money under false pretences, there being no proof that the note had lost its value. Whether the note is valueless is to be determined on all the evidence in the case; and evidence that the bank has paid a dividend is of weight," as showing the 940; R. v. Parker, 2 Mood. C. C. 1; 7 C. & P. 825; Smith v. People, 47 N. Y. 303, 1872; Foote v. People, 17 Hun, 218, 1879; Com. v. Collins, 8 Phila. 609, 1871; Maley v. State, 31 Ind. 192, 1869; State v. Beaucleigh, 92 Mo. 490, 1887; Newberry v. State, 32 Tex. Cr. 145, 1893; People v. Wasservogle, 77 Cal. 173, 1888; People v. Donaldson, 70 Cal. 116, 1886; Wills r. State, 24 Tex. App. 400, 1887; State r. Cadwell, 79 Iowa, 473, 1890. On this case Sir J. F. Stephen (Dig. Crim. Law, art. 330) comments as follows: "There was some slight difference of opinion (or rather of expression) amongst the judges in this case. The judges were anxious to point out that to give a cheque on a bank where the drawer has no balance is not, necessarily, an offence, as he may have a right to overdraw or a reasonable expectation that, if he does, his drafts will be honored. These considerations would seem to affect not the falseness of the pretence, but the defendant's knowledge of its falsehood, and his intent to defraud." 1 Com. v. Wilgus, 4 Pick. 177, 1826. Infra, 1170. 2 R. v. Coulson, T. & M. 332; 1 Den. C. C. 592; 4 Cox C. C. 227; R. v. Freeth, R. & R. 127; R. v. Jarman, 38 L. T. (N. S.) 460; 14 Cox C. C. 111; R. v. Dowey, 11 Ibid. 115; Com. v. Hulbert, 12 Metc. 446, 1847; Com. v. Nason, 9 Gray, 125, 1857; Maley v. State, 31 Ind. 192, 1869; Cheek v. State, 1 Cold. 172, 1860; and cases cited infra, 1164; Taylor v. State, 32 Tex. Cr. 110, 1893. See State v. Allred, 84 N. C. 749, 1881. In R. v. Hazleton, L. R. 2 C. C. 134; 13 Cox C. C. 1, the prisoner was indicted for obtaining goods by (amongst others) the false pretence that certain cheques were good and valid orders for the payment of their amount. It was proved that the prisoner ordered goods of the prosecutors, and said he wished to pay ready money for them. He gave cheques on a bank for the price, and took away the goods. The prisoner had shortly before opened an account at the bank, but had drawn out the amount deposited, except a few shillings. Various cheques of his had been refused payment, and he would not have been permitted to overdraw. He did not intend when he gave the cheques to the prosecutor to meet them, but intended to defraud. It was ruled that there was evidence of the false pretence that the cheques C. C. 257. were good and valid orders for the payment of their amount. 3 R. v. Spencer, 3 C. & P. 420. 5 R. v. Evans, Bell C. C. 187; 8 Cox note is of some value. Generally, however, it is enough to prove in such case that the bank was broken, and unable to pay; and that these facts the defendant knew. Nor does it make any difference that the note was on its face defective, and that the prosecutor could read. On the other hand, the mere passing of a note, or other business paper on its nominal value, is an affirmation of its value.3 For A. falsely to sign his name as agent for B. and thereby obtain goods, is a false pretence in A.; and so for A. falsely to declare that a signature of a non-existent person made by him is good. 5 And so of cheque. § 1163. Even a post-dated cheque is within the statute, if the defendant falsely declares or implies that the cheque is uttering genuine and good. Thus where the prisoner was charged post-dated with falsely pretending that a post-dated cheque, drawn by himself, was a good and genuine order for £25, and of the value of £25, whereby he obtained a watch and chain; and the jury found that before the completion of the sale and delivery of the watch by the prosecutor to the prisoner, he represented to the prosecutor that he had an account with the bankers on whom the cheque was drawn, and that he had a right to draw the cheque, though he postponed the date for his own convenience, all of which was false; and that he represented that the cheque would be paid on or after the day of the date, but that he had no reasonable ground 1 See infra, 1165. cheque on a bank, purporting to be 2 R. v. Jessop, Dears. & B. C. C. drawn by one Steinbach, and dated 442. Infra, 1189. Supra, 28 657, 669. 5 Supra, 22 659, 660. August 29. This prisoner represented to be a valid security, and attention being called to the fact that it was dated the 29th, stated that this was done because it was so late in the day and the bank was closed. No account was kept at the bank by any Stein Lesser v. People, 73 N. Y. 78, bach, and the cheque was worthless. 1878; s. c. 12 Hun, 668, 1878. The cheque was taken and prisoner and his friend took away the goods. It was held by the Court of Appeals, affirming the judgment of the court below, that the offence constituted a false pretence, and the fact that the cheque was post-dated would not be ground to set aside a conviction for In this case the facts were as follows: "On the 28th of August the prisoner, having bargained for goods of complainant, sent out from complainant's residence, where he was, a friend who was with him to get, as he said, the money to pay for the goods. The friend soon after returned with a obtaining goods under false pretences. |