E., then and there exercised the said office of collector of taxes, and was intrusted with and collected divers large sums of money in his capacity as collector and agent as aforesaid for the said county, said money belonging to said county. And the inquest aforesaid, on their oaths and affirmations aforesaid, do further present, that afterwards, to wit, on the day and year first aforesaid, at the county and within the jurisdiction aforesaid, he, &c., made and presented to the said Judges of the Court of Common Pleas his petition in writing (the effect of which in the first count of this indictment is more particularly set forth), he the said E., being then and there indebted to the said County of Philadelphia, in the sum of money embezzled as hereinafter mentioned, and also to divers others, whose names are to this inquest unknown; whereupon the said court took such action on said petition, and such proceedings were thereon had therein as in the first count of this indictment is described. And the inquest aforesaid, upon their oaths and affirmations aforesaid, do further present, that afterwards, to wit, on the day and year first aforesaid, at the county and within the jurisdiction aforesaid, the said E. N. F., being such collector of taxes and agent as aforesaid for the said County of Philadelphia, * unlawfully embezzled divers large sums of money, to wit, ten thousand dollars, being part of the said money which he had collected as collector of taxes and agent as aforesaid for the County of Philadelphia, said money being the property of the said county, to the prejudice of the said county, the said county being an opposing creditor of the said E. at the hearing aforesaid, as well as of the other opposing creditors of said E., with intent to defraud the said county, contrary, &c. (Conclude as in book 1, chap. 3.)

Sixth count. State the office, &c., as in fifth count to asterisk, and proceed: unlawfully applied to his own use divers large sums of money, to wit, ten thousand dollars, being the said money with which he had been intrusted as collector aforesaid, and agent for the said County of Philadelphia, said money being the property of the said county, to the prejudice of the said county, the said county being an opposing creditor of the said E. at the hearing aforesaid, as well as of other opposing creditors of said E., with intent to defraud the said county, contrary, &c. (Conclude as in book 1, chap. 3.) Seventh count. Same as sixth, introducing the averment that the money em

bezzled was part of the money which had been intrusted to the collector. Eighth count. Colluding, &c. Same as first count to *, and then proceed: And the said E. N. F., fraudulently and wickedly contriving and intending to cheat and defraud the said County of Philadelphia, and others, his creditors aforesaid, to wit, on the day and year first aforesaid, at the city and county aforesaid, did collude and contrive with certain persons whose names are to this inquest as yet unknown, for the concealment of a part of his estate and effects, to wit, money of the value of ten thousand dollars, thereby expecting further benefit to himself, with intent to defraud the said County of Philadelphia, and others, his creditors, to the evil example of all others in like manner offending, contrary, &c. (Conclude as in book 1, chap. 3.)

326

V. VIOLATION OF FACTOR LAW.

(525) Pledging goods consigned, and applying the proceeds to defendant's use, under the Pennsylvania statute.

(526)

(527)

Second count. Selling same, and applying to defendant's use the

proceeds.

Third count. Selling same for negotiable instrument.

(525) First count. Pledging goods consigned, and applying the proceeds to defendant's use, under the Pennsylvania statute.

That J. Q. A., &c., and D. S. H., on, &c., at, &c., then and there being the factors and consignees of a certain C. D., with force and arms, &c., did then and there receive as a consignment for sale from the said C. D., certain goods and merchandise, to wit (stating the goods with the same particularity as in larceny), together with other goods and merchandise of the goods and property of the said C. D., in all of great value, to wit, of the value of one thousand four hundred and two dollars, and that the said J. Q. A. and D. S. H., so being such consignees and factors as aforesaid, on the day and year as aforesaid at the county aforesaid and within the jurisdiction aforesaid, with force and arms, &c., in violation of good faith and with intent to defraud the said C. D., did then and there deposit and pledge with one J. B.(k) said merchandise, so consigned to them as aforesaid, as a security for certain money, to wit, the sum of one thousand four hundred and two dollars, which they the said J. Q. A. and D. S. H. had before that time borrowed from the said J. B., and did then and there apply and dispose of to their own use the said money, to the great damage of the said C. D., to the evil example of all others in the like case offending, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(526) Second count. Selling same, and applying to defendant's use the proceeds.

That the said J. Q. A. and D. S. H., on, &c., then and there being the consignees and factors of the said C. D., with force and arms, &c., did then and there receive from the said C. D., as a consignment for sale, certain other goods and merchandise, to wit, &c., of the goods and property of the said C. D., and that the said J. Q. A. and D. S. H. so being such consignees and factors as last aforesaid, on the day and year last aforesaid at the county aforesaid and within the jurisdiction of this court, with force and arms, &c., in violation of good faith, and with intent to defraud the said C. D., did then and there sell the last-mentioned goods and merchandise to one B. C., at and for the sum of one thousand four hundred and two dollars, and apply and dispose of to their own use, the said sum of one thousand four hundred and two dollars so received, to the great damage of the said C. D., to the evil example of all others in like case offending, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(527) Third count. Selling same for negotiable instrument.

That the said J. Q. A. and D. S. H., on, &c., then and there being the consignees and factors of the said C. D., with force and arms, &c., did then and there receive from the said C. D. as a consignment for sale, certain other goods and merchandise, to wit, of the goods and property of the said C. D., * and that the said J. Q. A. and D. S. H., so being such consignees and fac

(k) If the party from whom the money was borrowed and to whom the property was pledged, be unknown, it can be averred so.

tors as last aforesaid, on the day and year last aforesaid, at the county aforesaid, with force and arms, &c., in violation of good faith and with intent to defraud the said C. D., did sell the said last-mentioned goods and merchandise to one A. B., at and for the price and sum of one thousand four hundred and two dollars, and received therefor as such consignees the negotiable instruments of the purchasers of said last-mentioned goods and merchandise, whose names are as yet unknown to the inquest aforesaid, and with force and arms, &c., and in violation of good faith and with intent to defraud the said C. D., did then and there apply and dispose of to their own use the said negotiable instruments raised and acquired by the sale of the said last-mentioned goods and merchandise of the said C. D., to the evil example of others in like case offending, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

Fourth count. Same as third to *, and proceed:

and did then and there undertake and faithfully promise the said C. D. to sell the said last-mentioned goods and merchandise for and on account of him the said C. D., and to render him a just and true account of said last named sale, and well and truly to pay to the said C. D. the proceeds thereof according to their duty as such consignees and factors as last aforesaid, but that the said J. Q. A. and D. S. H., so being such consignees and factors as last aforesaid, on the day and year last aforesaid at the county aforesaid, with force and arms, &c., in violation of good faith and with intent to defraud the said C. D., did then and there sell to one A. B. the last named goods and merchandise at and for the price and sum of one thousand four hundred and two dollars, and did then and there apply and dispose of to their own use the said last named sum of one thousand four hundred and two dollars raised by the sale of the last named goods and merchandise, to the great damage of the said C. D., to the evil example of all others in like case offending, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

Fifth count. Same stated in another shape.

That the said J. Q. A. and D. S. H., on, &c., then and there being the consignees and factors of the said C. D., with force and arms, &c., in violation of good faith and with intent to defraud the said C. D., did apply and dispose of for their own use, certain other money, to wit, the sum of one thousand four hundred and two dollars, which said last-mentioned sum of money had before that time been raised and acquired by them the said J. Q. A. and D. S. H., by the sale of certain other goods and merchandise, to wit (stating the goods), of the goods and property of the said C. D., which said last named goods and merchandise had been before that time consigned for sale to them the said J. Q. A. and D. S. H. by the said C. D., to the great damage of the said C. D., to the evil example of others in like case offending, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

VI. OBTAINING GOODS BY FALSE PRETENCES. (1)

(528) General frame of indictment.

(529) Form used in Massachusetts.

(530) Same in New York.

(531) Pretence that defendant was agent of a lottery, &c.
(532) Obtaining money by personating another.

(1) See Wh. C. L. on the subject generally, as follows:-
:--

A. CHEATS AT COMMON LAW, § 2051.

B. STATUTORY CHEATS BY FALSE PRETENCES.

Massachusetts.

Obtaining by false pretence, or privy, or false token, goods, &c., or the signature to a written instrument, &c., § 2072.

(533) Pretence that defendant was M. H., who had cured Mrs. C. at the Oxford
Infirmary, whereby he induced the prosecutor to buy a bottle of oint-
ment, &c., for which he received a sovereign, giving 15 s. in change.
(534) Against a member of a benefit club or society, for obtaining money
belonging to the rest of the members under false pretences.

New York.

(Analysis of False Pretences in Wh. C. L.)

Obtaining by false token, or writing, or false pretence, the signature to a written instrument, or money, personal property, &c., § 2073.

Same when the thing obtained is a bank note, &c., § 2074.

Same where the pretended purpose is charitable or benevolent, § 2075.
Pennsylvania.

Obtaining by false token, writing, or pretence, property, &c., § 2076.
Obtaining credit at hotel by same, &c., § 2077.

Virginia.

Ohio.

Obtaining by false pretence or token, property, &c., or signature to paper, § 2078.

Obtaining money by false pretences, making fraudulent transfer of property to cheat creditors, § 2079.

Selling or conveying land without title, § 2080.

I. Character of the Pretences, § 2085.

1st. As to defendant's means, § 2085.

2d. As to defendant's character and personality, § 2092.
3d. As to the nature or value of goods or paper, § 2102.

4th. The pretences at the time must have been false, § 2110.

5th. They need not be in words, § 2113.

6th. They need not be by the defendant personally, § 2114.

7th. They must relate to a present state of things, § 2118.

8th. They must have been the operative cause of the transfer, § 2120.

II. Position of Prosecutor at the time, as to Carelessness or Culpability, § 2138.
III. Property included by Statutes, § 2134.

IV. Where the Offence is Triable, § 2142.

V. Indictment, § 2144.

1st. “That A. B." etc. (defendants), did “falsely, etc., pretend,” § 2144.
2d. "To A. B.," etc., § 2145.

3d. "That," etc. (Statement of Pretences), § 2148.

4th. Description of property, § 2155.

5th. "Whereas, in truth and fact" (Negation of Pretence), § 2158.

6th. Scienter and intention, § 2159.

7th. "By means," etc., of which pretences, § 2162.

In connection with the above, the following observations may be of use:

It will be noticed at the outset, that in their operative clauses, the statutes in England and in Massachusetts, New York, and Pennsylvania, are the same; see Wh. C. L. § 2071-85. Keeping this in mind, the general definition afforded by the cases both in England and this country is, that a false pretence must be a false representation as to some existing fact, made for the purpose of inducing the prosecutor to part with his property, and not a mere promise, which the promisor intends to break, as for payment of goods on delivery; R. v. Goodhall, R. & R. 461; R. v. Parkes, 2 Leach 616; Com. r. Drew, 19 Pick. 184; Com. v. Hutchinson, 2 Pa. L. J. 242; Com. v. Stone, 4 Met. 48; Com. v. Wilgus, 4 Pick. 177. Thus, where an indictment stated the false pretence to be, that the prisoner would tell the prosecutor where his strayed horse was, if he would give him one pound, without alleging that the prisoner pretended he knew where it was, it was held bad, though the prisoner received the money, and refused to tell; R. v. James Douglass, 1 Mood. C. C. 462. But it has been holden that obtaining money as a share of a bet, on a fraudulent representation that it had been laid, though to be decided by the future event of a pedestrian feat, is a false pretence; R. v. Young, 3 T. R. 98. It is not necessary to constitute the offence, as was thought in New York, People v. Conger, 1 Wheel. C. C. 449, that the prisoner should, orally, or in writing, make any false assertion, for, if he present a genuine order for the payment of money, and assumes by his conduct to be the person to whom it is payable, and by this means fraudulently obtains money which belongs to another, he will be within the statute; R. v. Story, R. & R. 81. Thus where a party not being a member of the University of Oxford, went into a shop there, wearing the academic cap and gown, and obtained goods, his dress was held a sufficient false pretence, though nothing passed in words; R. v. Barnard, 7 C. & P. 784. Another instance in which the acts and conduct of a

(535) Another form for same, coupled with a production to the society of a false certificate of burial.

(536)

First count. Pretence that a broken bank-note was good. (537) Pretence that a flash note was good.

(538) Pretence that a worthless check or order was good.

party were held tantamount to a false pretence, without false verbal representations, was that where a party obtained goods and money in exchange for a counterfeit promissory note, by asking for goods at a shop, and at the same time throwing down, as in payment, the note in question, which purported to be of larger value than the price of the goods, without stating it to be genuine; R. v. Freeth, R. & R. 127. (In this case, the first and second counts were in the statute for false pretence, the third was for a cheat at common law. Against the last count, it was argued that a note for less than twenty shillings being void and prohibited by law, it was no offence to forge it (as to which point see Rushworth's case, R. & R. 318), or to obtain money on it when forged, as the party to whom it was uttered ought to have been on his guard; Graham B., however, left the case to the jury, directing them, that the evidence, if true, sustained the second and third counts. Verdict, guilty on both those counts. The judges were of the opinion stated above, which appears, in substance, confined to the second count; but Lawrence J. thought the shop-keeper not cheated if he parted with his goods for a piece of paper, which, being a promissory note for less than twenty shillings, he must be presumed in law to know in law was worth nothing, if genuine.) Where, however, goods were obtained by means of a forged order in writing, requesting the prosecutor to let the bearer have linen for J. R., and signed J. R., this is reported to have been held by Taunton J., to be uttering a forged request for delivery of goods, and a felony under 1 Wm. IV. c. 66, s. 19; R. v. Evans, 5. C. & P. 553; whereas, obtaining money from a county treasurer by a forged note purporting to be signed by a magistrate, for paying the expenses of conveying vagrants, had been held a false pretence in R. v. Rushworth, R. & R. 317; 1 Stark. C. P. 396, S. C. Uttering as good and available, a bank note which had been long cancelled, and the makers bankrupt, has been thought not to be sufficient evidence of a fraud indictable at common law, or a cheat, unless bankruptcy be brought home to all the parties; R. v. Spencer, 3 C. & P. 420; R. v. Hurst, R. & R. 460; see Dickinson's Q. S., p. 330. So great a strictness in proof, however, is not deemed essential in this country; Com. v. Stone, 4 Met. 43. And the reason of the distinction here is, that where a bank becomes publicly insolvent, there is no one behind to pursue, whereas in England the members of the company are still responsible. On the other hand, it is evident that putting a note of this kind into the general circulation of the country is likely, by defrauding a succession of persons, to affect the public, and is 'not the mere case of cheating in a private bargain. Obtaining goods by giving in payment a check on a banker with whom the party keeps no cash, and which he knows will not be paid, was declared by all the judges to be indictable as a false pretence, though it was not an indictable fraud at common law; R. v. Lara, 6 T. R. 565; R. v. Hunt, R. & R. 460. In a false pretence of this kind, it was held to be well laid, "that the check was a good and genuine order for the payment of, and of the value of, the sum specified;" R. v. Smythe Parker, 2 Mood. C. C. 1. A count alleged the prisoner to have obtained from G. P. by a false pretence (stated), a sovereign "with intent to defraud G. P. of the sum of five shillings, parcel of the value of the last-mentioned piece of the current gold coin." Prisoner was shown to have made the pretence laid, viz. that he was Mr. H., and thereby induced G. P. to buy, at the cost of five shillings, a bottle of stuff he said would cure G. P.'s child. G. P. gave him a sovereign and received fifteen shillings in change. Prisoner was shown not to be H.; held to be a false pretence, and with intent well laid; Reg. v. Bloomfield, C. & M. 537. See post, 533. A false statement to a parish officer as an excuse for not working, that the party has not clothes, is not a false pretence within the act, though it induce the officer to give him clothes, as it was rather an excuse for not working than a false pretence to obtain goods; R. v. Wakeling, R. & R. 504.

Obtaining money by a pretence, known by the offender to be false at the time, is equally criminal, though the party who parted with the money laid a plan to entrap him into committing the offence; R. v. Ady, 7 C. & P. 140.

As to the subject matter obtained, it is said that obtaining a check on a banker, on unstamped paper, payable to a person not named, but not to bearer also, is not obtaining a "valuable security" within the act, for by 55 Geo. III. c. 184, the banker would be liable to a penalty of £50 for paying it; R. v. Yates, 1 Mood. C. C. 170. Obtaining credit on account from the prisoner's bankers, by drawing a bill on a person on whom he has a right to draw, and which has no chance of being paid, and delivering it to them, is not obtaining money under 7 and 8 Geo. IV., though the bankers in consequence