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is no bar.

falsity of the pretences, and does not bonâ fide part with the goods. And carelessness or complicity amounting to consent, as we have just seen, estops the prosecutor.

§ 1191. There may be cases where both parties employed false representations; but if so, while each can be convicted on

Thatprosean independent prosecution, neither can set up the other's cutor made

false repreguilt as a defence to an indictment against himself if the sentations transactions are disconnected. It


be otherwise when the transaction is one of fraud against fraud.”

$ 1192. That gross credulity is no defence is illustrated by the prosecutions sustained against conjurors and fortune-tel- Nor is lers. Nothing but gross credulity could be imposed on tor's gross by such pretenders; yet on behalf of those thus imposed credulity. on prosecutions have been sustained.*

$ 1193. While a false affirmation may be within the statute, such is not the case with loose talk, or the statement of vague conjectural opinion. Thus, where a servant went " “ brag" into the prosecutor's store, and said he wanted money for his master to buy some wheat, and the

prosecutor gave him ten pounds, this was held not within the statute.? And so where the indictment alleged that the defendant falsely pretended that a sum of money, parcel of a certain larger sum, was “due and owing” to him for work which he had executed for the prosecutors, this was held not to be an allegation of a false pretence of an existing fact, as the allegation in the indictment might be satisfied by evidence of a mere matter of opinion, either as



and loose talk are not within statute.


Supra, & 149.

Contra, State v. Cameron, 117 Mo. Com. v. Morrill, 8 Cush. 571, 1851; 641, 1893. Cummins v. People, 16 Colo. 451,


Supra, % 1154; R. v. Hamilton, 9 People v. Watson, 75 Mich. 582, 1889; Ad. & El. (N. S.) 271; Com. v. though see contra, McCord v. People, Henry, 22 Pa. 253, 1853; State v. 46 N. Y.470, 1871; People v. Stetson, Phifer, 65 N. C. 321, 1871. 4 Barb. 151, 1848.

6 R. v. Williamson, 11 Cox C. C. 3 Supra, % 140.

328. See State v. Tomlin, 5 Dutch. * R. v. Giles, L. & C.502; 10 Cox C. 13, 1860; People v. Jacobs, 35 Mich. C. 4. See State v. Phifer, 65 N. C. 36, 1876. See supra, 2% 1154, 1160, as 321, 1871; Miller. v. State, 73 Ind. 88, to "puffs.” The question of how far 18309; Bowen v. State, 9 Baxt. 45, an erroneous opinion is a false state1876; State v. Montgomery, 56 Iowa, ment is discussed at large in Whart. 195, 1881; Johnson v. State, 36 Ark. on Contracts, 22 215, 259-63. 242, 1880; and supra, % 1140. People ? R. v. Smith, 2 Russ. on Cr. 312; r. Cole, 20 N. Y. Sup.505, 1892; State Com. v. Barker, 8 Phil. 613, 1871. 8. Fooks, (Iowa) 19 Rep. 43, 1884.


Dess of


regarded fact or law, and that therefore the indictment was bad. A loose statement, also, that a third person owed the defendant, without saying how much, has been held not to be an adequate pretence.

$ 1194. That the prosecutor was indebted to the deIndebted

fendant for an amount equal to the value of a chattel obprosecutor tained by the false pretences is no defence. But it is ant no de otherwise when money is paid in satisfaction of a debt

actually due.

11. Property included by Statutes. $ 1195. As will be hereafter seen, under the statutes as first Negotiable drafted, only larcenous property is protected. By the paper within statutes now existing in most jurisdictions, however,

this limit is obliterated, and the obtaining by false pretences, both of land and of written securities, is made indictable.

Under the New York statute, making it indictable to obtain by false pretences“ signatures to a written instrument,” it is necessary, to constitute the offence, that the instrument should be of such a character as likely to work a prejudice to the signer, though the fact that it would have been void for fraud will be no defence.?

An indorsement of a negotiable promissory nete is, in many jurisdictions, within the terms of the statute, and so is the signature to contracts binding the signer. S

A check on a bank is a “thing of value” under the statute.'



1 R. v. Oates, 29 Eng. Law & Eq. 540, 1837. See State v. Layman, 8 552; Dears. C. C. 459; and see, also, Blackf. 330, 1846. In re Eberle, 44 R. v. Wakeling, R. & R. 504, where Kans. 472, 1890. the defendant, as an excuse for not 8 Ibid. ; People v. Gates, 13 Wend. working, said he had “no shoes,” upon 311, 1835; People v. Chapman, 4 which a pair was given to him. Parker C. R. 56, 1858; State v. ? State v. Magee, 11 Ind. 154, 1858. Thatcher, 35 N. J. L. 445, 1872; State

People v. Smith, 5 Parker C. R. v. Blauvelt, 38 Ibid. 306, 1876 ; Ellars 190, 1863. See supra, % 884.

v. State, 25 Ohio St. 385, 1874. But * Infra, & 1197.

see R. v. Danger, D. & B. 307; 7 Cox • State v. Burrows, 11 Ired. 477, C. C. 303, where it was held that the 1850.

English statute does not cover the See

supra, ??, 1130, 1137 ; Baker v. cases of inducing another party to inState, 14 Tex. App. 332, 1883; People dorse a note. And see R. v. Brady, v. Reed, (Cal.) 8 Crim. Law Mag. 26 Up. Can. Q. B. 13. Infra, & 1838. 653, 1886.

9 Tarbox v. State, 38 Ohio St. 581, People v. Crissie, 4 Denio, 525, 1883. 18 17; People v. Galloway, 17 Wend.



It is not necessary that any actual loss should be sustained by the maker of the signature fraudulently obtained.'

$ 1196. Value, however, is a necessary essential of the article, in order to bring it within the statute. Thus in Pennsyl

Thing obvania it was held that obtaining a receipt in discharge of tained a debt, by means of a worthless note of a broken bank, of some is not within the 21st section of the Act of 12th July, 1812, the reasoning of the court being apparently that the receipt was a thing of no account, not being an extinguishment of the debt.

Value, however, is to be in ferred from facts. But no special value need be averred, unless required by statute.*

$ 1197. A false representation, as has been already incidentally noticed, used to induce a party to pay an honest lawful debt, is not within the statute. And where an indictment charged that T., who held a promissory note against J., which was paid in

Money due, called for payment, and with intent to defraud J. falsely represented the note to have been lost or burned within up, whereby the latter was induced to pay it; it was held

satisfaction of debt not




· State v. Pryor, 30 Ind. 350, 1868. a servant of the company, so as to enaInfra, 1200.

ble the holder to travel on the line, is * Moore v. Com., 8 Barr, 260, 1848. an obtaining a chattel by false pre

G., secretary of a burial society, was tence, within the stat. 7 & 8 Geo. IV. indicted for falsely pretending that a c. 29, s. 53. R. v. Boulton, 2 C. & K. death had occurred, and so obtaining 917; s. C. 1 Den. C. C. 508. But see from the president an order on the as to this point, supra, % 878. treasurer as follows:

3 Com. v. Coe, 115 Mass. 481, 1874. ** Bolton United Burial Society, No. 23.

See supra, &955. “Bolton, September 1st, 1853.

Infra, ? 1221. “Mr. A. Entwistle, Treasurer,

Supra, % 1184; R. v. Williams, 7

C. & P. 354; Com. v. McDuffy, 126 Please pay the bearer £2 10s., Greenhalgh, and charge the same to the

Mass. 467, 1879; Com. v. Henry, 22 above society.

Pa. 253, 1853; People v. Thomas, 3 “ Robert Lord.

Hill, 169, 1842; State v. Hurst, 11 W.

Va. 54, 1877. " Benjamin Beswick, President.”

In Com. v. McDuffy, Lord, J., said: It was held that this was a valuable “We are not aware that the precise security under the 7 & 8 Geo. IV. c. question now presented has ever been 29, s. 53, as explained by the 5th sec- considered by this court; and we have tion of the same statute. R. v. Green- not been able to find any decision in halgh, 25 Eng. Law & Eq. 570; Dears. any court of last resort that a party C. C. 267; 6 Cox C. C. 257.

may be convicted of the crime of obA railway ticket is a “chattel,” and taining property by false pretences the obtaining it by false pretence from when he has obtained nothing in

account will not

insufficient to sustain a conviction, as not showing any legal injury resulting to J. § 1198. It has been held that merely obtaining credit is not

within the statute in its original shape. Thus where, Credit on

to induce his bankers to pay his cheques, a defendant sustain in- drew a bill on a person on whom he had no right to draw, dictment. and which had no chance of being paid, in consequence of which the bankers paid money for him, the statute was held not to cover the case, because he only obtained credit, and not any specific sum on the bill. But when the money or goods ultimately pass on the credit so obtained, the statutory offence is consum

value which he would not be entitled dence in support of the facts upon to as of right.” Com. v. Drew, 19 which his prayers are predicated, and Pick. 179, 1837 ; Com. v. Jeffries, 7 the jury should have been instructed Allen, 568, 1863; R. v. Williams, 7 that, if proved, the defendant was enC. & P. 354; People v. Thomas, 3 titled to an acquittal, and for this Hill, 169, 1842; Com. v. Henry, 22 reason the exceptions must be susPa. 253, 1853; People v. Getchell, 6 tained.” S. P., Com. v. Thompson, Mich. 496, 1859; Com. v. Thompson, Lewis C. L. 197; Com, v. Henry, 22 3 Penn. Law Jour. 250, 1843; People Pa. 253, 1853 ; State v. Hurst, 11 W. v. Genning, 11 Wend. 18, 1833; 2 Va. 54, 1877 ; State v. Gillespie, 80 N. Russ. on Cr. 312; 1 Bishop's Crim. C. 396, 1879. And see Moulden v. Law, 2 525; 2 Ibid. & 442. We are, State, 5 Lea, 577, 1880; Jamison v. of course, not to be understood as State, 37 Ark. 445, 1881. deciding that a mere pretence of in- In R. v. Williams, 7 C. & P. 354, C. debtedness, by the person from whom owed D. a debt, of which D. could the property is obtained, is sufficient; not get payment. S., a servant of D., nor is anything which we decide to be obtained from C.'s wife two sacks of construed as in conflict with the well- malt, saying that D. had bought them established rule of law, that a party is of C. S. knew this to be false, but to be presumed to intend all the took the malt to D., his master, so that natural and ordinary consequences of he could be paid the debt due him his acts, and fraud and falsehood are from C. It was ruled that if S. did always evidence tending to show that not intend to defraud C., but merely the party had a dishonest purpose; to put it into his master's power to and the question for the jury to decide compel C. to pay him a just debt, S. is, whether, upon all the facts and cir- ought not to be convicted of obtaining cumstances the defendant had an in- the malt by false pretences. tent to defraud and effected that pur- People v. Thomas, 3 Hill, (N. Y.) pose, and whether, in order to accom- 169, 1812. plish it, he made use of fraudulent ? R. v. Eagleton, Dears. C. C. 515; representations and succeeded by 6 Cox C. C. 559. means of such representations. We 3 R. v. Wavell, 1 Vood. C. C. 224. think, therefore, that the defendant See R. v. Bryan, 2 F. & F. 567. should have been allowed to offer evi


Goods not

in existence are within statute.

mated,' and even for the credit, the defendant may be convicted of an attempt.

$ 1199. The statute includes the obtaining of a chattel not in existence when the pretence was made, if the pretence is continuous. Thus where the defendant, by false pre- at the time tences, induced the prosecutor to enter into a contract to build and deliver a van for a certain sum of money, and the prosecutor, on the faith of those pretences, built and delivered the van in pursuance of the original order, although there was a question as to countermanding the order after the building, and before the delivery, the offence was held to be made out. It was ruled that, to bring the case within the statute, it is not necessary that the chattel should be in existence when the false pretence is made, if the pretence is a continuing one, so that the chattel is made and delivered in pursuance of the pretence; that the question whether the pretence is or is not such a continuing one is one of fact for the jury, and that in this case there was evidence from which the jury might infer that the pretence was continuous.

$ 1200. When the goods have been obtained, only an intent to defraud need be proved, and not an actual defrauding ;)

Actual inand hence it is not necessary to charge loss or damage to jury to the prosecutor, the offence being complete when the goods not be are obtained by false pretences, with intent to cheat and proved. defraud.

§ 1201. We must, in this relation, recall the doctrine already laid down in respect to larceny, that the prosecution fails Goods must if it appear that the goods obtained, at the time of obtain- belonged to ing, belonged to the defendant, either jointly or severally.? the defenThis rule applies equally to prosecutions for false pre- sonally, or tences in all cases involving partnership accounts. The ber of prosecution, also, does not lie when the taking was under a firm; nor honest claim of title.'


taken on a claim of title.

1. R. v. Kenrick, 5 Q. B. 49; R. v. and larceny, supra, 2% 696, 714, 739, Abbott, 1 Den. C. C. 273. Supra, 887. But see, on the question of lucri $ 1180.

causa, Com. v. Harley, 7 Metc. 462, ? Supra, 33 173–199.

1844. * R. v. Martin, L. R. 1 C. C. 56; 10 See supra, 2 935. Cox C. C. 383.

8 R. v. Evans, L. & C. 252; 9 Cox • Ibid.

C. C. 238. s R. v. Bloomfield, C. & M. 537. 9 Supra, & 884, and cases cited,

People v. Herrick, 13 Wend. 87, & 1197; People v. Getchell, 6 Mich. 1834. See parallel rulings in forgery 496, 1859.

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