(491) Against one, &c., at common law, with no averment of either leasehold or freehold possession in the prosecutor. (i)

That I. K., at, &c., on, &c., unlawfully, viclently, forcibly and injuriously did enter into a certain lot of ground and the stable thereon erected, situated between North alley and South alley, and between Delaware Fifth and Delaware Sixth streets in the said city, the said lot of ground being forty-nine feet north and south and sixteen feet or thereabouts east and west in dimension, then and there being in the peaceable possession of one T. L., and that the said I. K. then and there, with force and arms and with a strong hand, unlawfully, violently, forcibly and injuriously did expel, remove and put out the said T. L. from the possession of the said premises, and the said T. L. so as aforesaid expelled, amoved and put out from the possession of the same, with force and arms, &c., and with a strong hand, unlawfully, violently, for cibly and injuriously has kept out, from the day and year aforesaid until the taking of this inquisition, and still doth keep out, and other wrongs to the said T. L. then and there did, to the great damage of the said T. L., to the evil example of all others in the like case offending, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(492) Forcible entry, &c., into a freehold, on stat. 5 Rich. II. c. 8.(j)

That one J. N., &c., at, &c., on, &c., was seized() in his demesne as of fee, of and in a certain messuage, with the appurtenances there situate and being, and the said J. N., being so seised thereof as aforesaid, J. S., late of the parish aforesaid, in the county aforesaid, laborer, afterwards, to wit, on the day and year last aforesaid, in the parish aforesaid, in the county aforesaid, into the said messuage and appurtenances aforesaid, with force and arms and with strong hand, unlawfully did enter, and the said J. N. from the peaceable possession of the said messuage with the appurtenances aforesaid, then and there with force of arms and with strong hand, unlawfully did expel and put out, and the said J. N. from the possession thereof so as aforesaid with force and arms and with strong hand, being unlawfully expelled and put out, the said J. S. from the aforesaid third day of August, in the year aforesaid, until the day of the taking of this inquisition, from the possession of the said messuage with the appurtenances aforesaid, with force and arms and with strong hand, unlawfully and injuriously then and there did keep out, and still doth keep out, to the great damage of the said J. N., against, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(493) Forcible entry into a leasehold, on stat. 21 Jac. I. c. 15.(1) (Same as in last precedent, adapting the form, however, to a term of years, as thus):

That J. N., &c., on, &c., at, &c., was possessed of a certain messuage with the appurtenances, there situate and being, for a certain term of years, whereof divers, to wit, ten years were then to come, and are still unexpired, and the said J. N. being so possessed thereof, &c. (as in last precedent).

(i) Com. v. Kinsman, Sup. Ct. Pa. Dec. T. 1830, No. 13. Sentence was entered on this indictment after a plea of guilty.

(j) Archbold's C. P. 5th Am. ed. 709.

(k) See Fitch v. Rempublicam, 3 Yeates 49, S. C.; 4 Dall. 212; Resp. v. Shryber, 1 Dall. 68.

(1) Archbold's C. P. 5th Am. ed. 712. See Pa. v. Elder, 1 Smith's Laws 3.

(494) Forcible detainer on stat. 8 Hen. VIII. c. 9, or 21 Jac. I. c. 51.(m) (The same as in the last two precedents respectively, to the end of the statement of the seisin or possession, then proceed thus):

And the said J. N. being so seized (or possessed) thereof, J. S., late, &c., into the said messuage with the appurtenances aforesaid, unlawfully did enter, and the said J. N. from the peaceable possession of the said messuage with the appurtenances aforesaid, then and there unlawfully did expel and put out, and the said J. N. from the possession thereof, so as aforesaid, being unlawfully expelled and put out, the said J. S. from the said third day of August, in the year aforesaid, until the day of the taking of this inquisition, from the possession of the said messuage with the appurtenances aforesaid, with force and arms and with strong hand, unlawfully and injuriously then and there did keep out, and the said messuage with the appurtenances and the possession thereof, then and there unlawfully and forcibly did hold, and still doth hold from the said J. N., to the great damage of the said J. N., against, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(495) Forcible entry. Form in use in Philadelphia. First count, at common law.(n)

That A. B., &c., on, &c., at, &c., together with divers other evil disposed persons, to the number of four or more, whose names are to the jurors aforesaid as yet unknown, with force and arms and with a strong hand, unlawfully, violently, forcibly and injuriously did enter into (describing premises), then and there being in the peaceable possession of C. D., and that the said A. B., with the said evil disposed persons, then and there, with force and arms and with a strong hand, unlawfully, violently, forcibly and injuriously did expel, remove and put out the said C. D. from the possession of the said premises, with the appurtenances; and the said C. D. so as aforesaid expelled, removed and put out from the possession of the same, with force and arms and with a strong hand, unlawfully, violently, forcibly and injuriously have kept out from the same, from the day and year aforesaid, until the taking of this inquisition, and still do keep out; and other wrongs to the said C. D. then and there did, to the great damage of the said C. D., contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(496) Second count. Entry upon freehold.

That the said C. D., on, &c., at, &c., was seized in his demesne as of fee, of and in the messuage, tenement and premises herein before specified and described, with the appurtenances thereto; and the said C. D. being so seized thereof as aforesaid, the said A. B. afterwards, to wit, on the day and year aforesaid, at the county and within the jurisdiction aforesaid, into the said messuage, tenement, premises and appurtenances aforesaid, with force and arms and with a strong hand, unlawfully did enter, and the said C. D. from the peaceable possession of the said messuage, tenement, premises and appurtenances as aforesaid, then and there with force and arms and with strong band, unlawfully did expel and put out; and the said C. D. from the possession thereof so as aforesaid, with force and arms and with strong hand being unlawfully expelled and put out, from the day and year aforesaid until the day of the taking of this inquisition, from the possession of the said messuage, tenement, premises and appurtenances, with force and arms and with

(m) Archbold's C. P. 5th Am. ed. 712.

(n) This form includes a count at common law, and a count on each of the statutes mentioned ante, 489, note.

strong hand, unlawfully and injuriously then and there did keep out, and still do keep out, to the great damage of the said C. D., contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(497) Third count. Entry upon leasehold.

That the said C. D., on, &c., at, &c., was possessed of the said messuage, tenement, premises and appurtenances, as herein before described, for a certain term of years, whereof divers, to wit, two years, were then to come, and are still unexpired; and that the said C. D. being so possessed thereof, the said A. B. afterwards, to wit, on the day and year aforesaid, at the county and within the jurisdiction aforesaid, into the said messuage, tenement, premises and appurtenances, as aforesaid, with force and arms and with a strong hand, unlawfully did enter, and the said C. D. from the peaceable possession of the said messuage, tenement, premises and appurtenances as aforesaid, then and there with force and arms and with a strong hand, unlawfully did expel and put out; and the said C. D. from the possession thereof so as aforesaid, with force and arms and with strong hand, being unlawfully expelled and put out, from the day and year aforesaid until the taking of this inquisition, from the possession of the said messuage, tenement, premises and appurtenances, with force and arms and with strong hand, unlawfully and injuriously then and there did keep out, and still do keep out, to the great damage of the said C. D., contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(498) For breaking and entering a close and cutting down a tree, under the Pennsylvania act.

That D. B. and J. T., &c., on, &c., at, &c., into a certain close of the honorable J. H. Esq., situate in the township of Lancaster, and in and upon the possession of the said J. H. Esq., into which the said D. B. and J. T. had not the legal right of entry, did enter, and one oak tree of the said J. H. then and there growing, then and there did cut down and fell, they, the said defendants, well knowing the said oak tree to be growing on the land of the said J. H., and that the land on which the said oak tree was growing did not belong to them, the said defendants, or either of them, or to any person by whom they or either of them was authorized, contrary, &c., and against, &c.(o) (Conclude as in book 1, chap 3.)

(0) This form was sustained by the Supreme Court of Pennsylvania in Moyer v. Com., 7 Barr 439. The indictment standing in the place of this in the first edition of this work, is defective. See 4 Am. L. J. 695.

308

CHAPTER X.

CHEATS.

1. CHEATS AT COMMON LAW.

2. FALSE PERSONATION OF BAIL.

3. SECRETING GOODS WITH INTENT TO DEFRAUD CREDITORS, AND FRAUDULENT

CONVEYANCE.

4. FRAUDULENT INSOLVENCY IN PENNSYLVANIA,

5. VIOLATION OF FACTOR LAW.

6. OBTAINING GOODS BY FALSE PRETENCE.

I. CHEATS AT COMMON LAW.

(499) Selling by false weight or measure.

(500) Against a baker for selling loaves to poor persons under weight, and obtaining pay from them under the pretence that they were of full weight.

(501) Cheating at common law by false cards.

(502)

Second count. Cheating at common law, at a game of dice called passage.

(503) Information. Passing a sham bank-note, the offence being charged as a

false token.

(504) Obtaining goods by means of a sham bank-note, as a misdemeanor at common law.

(505) Cheat by means of a counterfeit letter.

(499) Selling by false weight or measure. (a)

That A. B., late of, &c., on, &c., and from thence until the taking of this inquisition, did use and exercise the trade and business of a grocer, and during

(a) Dickinson's Q. S. 6th ed.

(Cheats at common law generally.) A mere private imposition short of felony, and effected by a "naked lie," without the association of artful device or false token, voucher, order, &c., is not indictable as a cheat at common law, unless it is public in its nature, and calculated to defraud numbers, or to injure the government or the public in general; 1 East P. C. 817, 821; Dickinson's Q. S. 290; and see 10 A. & E. 37; 2 Per. & Dav. 334. Per Ld. Denman. Forcible illustrations of the distinction between a cheat which becomes indictable or otherwise as it acquires or loses generality, are found in Weierbach v. Trone, 2 W. & S. 408; and Com. v. Warren, 6 Mass. 72. Putting a stone in a single pound of butter, for the purpose of cheating as single, is not an indictable offence: putting a series of stones in a series of pounds of butter, for the purpose of defrauding the public, is. For in other cases prudence and caution would supply sufficient security; 1 Hawk. c. 71, s. 2; 2 East P. C. 818; R. v. Gibbs, 1 East R. 173; but the selling by false weights and measures, though to one person only, or producing false tokens, or taking other like methods to cheat, which cannot be guarded against by ordinary care, were always held indictable offences; R. v. Young, 3 T. R. 98, per Buller, J.; R. v. Wheatly, 1 Bla. R. 273; 10 A. & E. 37; 2 Burr. 1125, S. C. ; State v. Patillo, 4 Hawks 348; Com. v. Warren, 6 Mass. 72; Com. v. Morse, 2 Mass. 138; Hiel v. State, 1 Yerg. 76; People v. Stone, 9 Wend. 182; State v. Scroll, 1 Rich. 244; People v. Miller, 14 Johns. 371; State v. Wilson, 2 Rep. Con. Ct. 135; People v. Babcock, 7 Johns. 201; State v. Vaughan, 1 Bay 282; Cross v. Peters, 1 Greenl. 367; Com. v. Speer, 2 Va. Cases 65; Lambert v. People, 9 Cow. 578; Com. v. Hearsey, 1 Mass. 137; Wh. C. L. § 2051.

Such are the following among other frauds. Those affecting the administration of

that time did deal in the buying and selling by weight of (tea, &c.) and of divers other goods, wares and merchandise, to wit, at, &c., aforesaid; and that the said A. B., contriving and fraudulently intending to cheat and

public justice, as counterfeiting a creditor's authority to discharge his debtor from prison (though, if genuine, it would be good), whereby his liberation was effected; R. v. Fawcitt, 2 East P. C. 826, 862; or endangering the public health by selling unwholesome provisions, unfit for the food of man, whether to the public generally, R. v. Treeve, 2 East P. C. 821, or under a contract with government for supplies to particular bodies, as foreign prisoners of war under the king's protection, ib.; or the military asylum at Chelsea; R. v. Dixon, 2 Campb. 12; 3 M. & S. 11, S. C. So in Pennsylvania, an indictment was sustained against a baker in the employ of the United States army, in baking two hundred and nineteen barrels of bread, and marking them as weighing eighty-eight pounds each, when, in fact, they severally weighed but sixtyeight pounds; Resp. v. Powell, 1 Dall. 47; see 2 Rep. Con. Ct. 139. But this case cannot now be considered law (see Wh. C. L. § 2051, &c.), since a mere sale at under weight is not indictable at common law (however it may be as a false pretence), unless a false token or weight is used; R. v. Eagleton, 33 Eng. Law and Eq. 545. Frauds calculated to affect all persons, as selling by false weights and measures; R. v. Wheatly, 1 Bla. R. 273; R. v. Young, 3 T. R. 98; 2 Burr. 1125, S. C., overruling R. v. Wood, 1 Sess. Ca. 217; counterfeiting tokens of public authenticity, as the alnager's seal on cloth, while those duties remained unrepealed by 11 and 12 Wm. III. c. 20, s. 2, R. v. Edwards, Tremaine's P. C. 103; playing with false dice, R. v. Leeser, Cro. Jac. 497; obtaining money from a soldier on a false pretence of having a power to discharge him, Serlested's case, Latch 202; or getting the king's bounty by enlisting as a soldier, being an apprentice, liable to be retaken by a master, R. v. Joseph Jones, 2 East P. C. 822; 1 Leach 174, S. C. In Virginia the rule has been pressed much further, it having been held that the procuring goods, &c., by means of a note purporting to be a bank note of the Ohio Exporting and Importing Company, there being no such bank or company, is a cheat punishable by indictment at common law, if the defendant knew that it was such a false note. It is necessary in such case to aver the scienter in the indictment; Com. v. Speer, 2 Va. Cases 65; but see State v. Patillo, 4 Hawks 348. So, where the defendants purchased goods from the prosecutor's clerk, and gave in payment an instrument purporting to be a five dollar bill of the Bank of Tallahasse, in Florida, the blanks of which were filled up, except those opposite the words "cashier" and "president;" but in those blanks an illegible scrawl was written, which, on careless inspection, might have been mistaken for the names of those officers, and the defendants knew, before they passed the instrument, that it was worthless; it was held, in South Carolina, that they were guilty, at common law, of cheating by a false pretence; State v. Stroll and Carr, 1 Rich. 244.

The following are some instances of frauds on individuals, which not being effected in the course of general practice, or by means generally calculated to injure the public, are not indictable at common law; selling a smaller as and for a larger quantity of an article, if without using false weights or measures; this being a deception which could not have taken effect but for the buyer's carelessness in accepting without measure, R. v. Wheatly, 2 Burr. 1125 (the beer case); Cowp. 324; East P. C. 817, 819; or inducing an illiterate person to sign a deed by reading it to him falsely; State v. Justice, 2 Dev. 199. The like where a miller who had received good barley to grind, delivered in return meal of musty and unwholesome barley, or of barley mixed with other grain, but not for the food of man, and the mill not being a soke mill, to which certain resi dents were obliged to resort to grind their corn; Ř. v. Haynes, 4 M. & S. 220; see 6 East 133. So as to obtaining money of A. by pretending to come by command of B. to receive money, R. v. Jones, 2 Ld. Raym. 1013; Salk. 379; 6 Mod. 105, S. C.; see 2 East P. C. 818; 1 Hawk. c. 71, s. 2; or detaining part of corn sent to be ground; Channel's case, Stra. 793. On the same principle, it is not an indictable offence to get possession of a note, under pretence of wishing to look at it, and carrying it away and refusing to return it, People v. Miller, 14 Johns. 37; nor to obtain money by falsely representing a spurious note of hand to be genuine, State v. Stroll, 1 Rich. 244; State v. Patillo, 4 Hawks 348; see Com. v. Speer, 2 Va. cases 65; nor to pretend to have money ready to pay a debt, and thereby obtaining a receipt in discharge of the debt, without paying the money; People v. Babcock, 7 Johns. 201; nor to put a stone in a pound of butter so as to increase its weight; Weierbach v. Trone, 2 W. & S. 408; nor to obtain goods on credit, by falsely pretending to be in trade, and to keep a grocery shop, and giving a note for the goods, in a fictitious name, Com. v. Warren, 6 Mass. 72; nor to obtain, in violation of an agreement and by false pretences, possession of a deed lodged in a third person's hands as an escrow; Com. v. Hearsey, 1 Mass. 137; see Wh. C. L. § 2051, &c.