statute 12 Car. II. c. 13. ; and lastly, the statute 11 Ann. st. 2. c. 16. has reduced it to five per cent. Wherefore not only all contracts for taking more are in themselves totally void, but also the lender shall forfeit treble the money borrowed. Also, if any scrivener or broker takes more than five shillings per cent. procuration-money, or more than twelvepence for making a bond, he shall forfeit 201. with costs, and shall suffer imprisonment for half a year. And by statute 17 Geo. III. c. 26. to take more than ten shillings per cent. for procuring any money to be advanced on any life-annuity, is made an indictable misdemesnor, and punishable with fine and imprisonment as is also the offence of procuring or soliciting any infant to grant any life-annuity; or to promise, or otherwise engage, to ratify it when he comes of age."

5. Cheating is another offence, more immediately against public trade ; as that cannot be carried on without a punctilious regard to common honesty, and faith between man and man. Hither therefore may be referred that prodigious multitude of statutes, which are made to restrain and punish deceits in particular trades, and which are enumerated by Hawkins and Burn, but are chiefly of use among the traders themselves. The offence also of breaking the assise of bread, or the rules laid down by the law, and particularly by the statutes 31 Geo. II. c. 29., 3 Geo. III. c. 11., and 13 Geo. III. c. 62., for ascertaining its price in every given quantity, is reducible to this head of cheating: as is likewise in a peculiar manner the offence of selling by false weights and measures; the standard of which fell under our consideration in a former book. (h) The punishment of bakers breaking the assise was anciently to stand in the pillory, by statute 51 Hen. III. st. 6. and for brewers (by the same act) to stand in the tumbrel or dungcart; (i) which, as we learn from domesday book, was the punishment for knavish brewers in the city of Chester so early as the reign of Edward the Confessor, " Malam cerevisiam faciens, [158] in cathedra ponebatur stercoris." (j) But now the general pu nishment for all frauds of this kind, if indicted (as they may be) at common law, is by fine and imprisonment; though the easier and more usual way is by levying on a summary conviction, by distress and sale, the forfeitures imposed by the several acts of parliament. Lastly, any deceitful practice, in cozening another by artful means, whether in matters of trade, or otherj Seld. tit. of hon. b. 2. c. 5. § 3.

h See Book 1. pag. 274.

i 3 Inst. 219.

(6) One half of the penalty is given by the statute to the prosecutor, the other half to the king. -It is remarkable that such was the prejudice in ancient times against lending money upon interest, that the first statute, the 37 Hen. VIII. c. 9. by which it was legalized, was afterwards repealed by 5 & 6 Edw. VI. c. 20. by which all interest was prohibited, the money lent and the interests were forfeited, and the offender was subject to fine and imprisonment.-We have before observed, that the policy of limiting the rate of interest upon a contract for the loan of money is denied in modern times, but Cato was of a different opinion. Cum ille, qui quæsierat, dixisset, Quid fœnerari? Tum Cato, Quid hominem, inquit, occidere? Cic. Off.

We have already considered what will constitute usury, ante, 2 Book, 403. That usury is an indictable offence, see 2 Burr. 799. 4 T. R. 205. 8 East, 41. 1 Chit. Crim. Law, 549.

(7) This act is repealed as to annuities granted since the 14 July 1813, by the 53 Geo. III. c. 141., but similar provisions are re-enacted.

(8) The acts in force relative to the baking, &c. of bread, where no assize is set, are the 59 Geo. III. c. 36. and 1 & 2 Geo. IV. c. 50. The 3 Geo. IV. c. CVI. relates to the baking of bread in London, or within ten miles of the royal exchange; and see the 36 Geo. III. c. 22. 38 Geo. III. c. 62. 39 & 40 Geo. III. c. 74. 41 Geo. III. c. 12. 50 Geo. III. c. 73. 53 Geo. III. c. 116. 3 Geo. IV. c. CVI.; and 5 Geo. IV. c. 50. as to the baking of bread where an assize is 1 Burn. J. 24 ed. tit. Bread.

set.

(9) The principal act now in force, relative to the different weights and measures, is the 5 Geo. IV. c. 76. (continued and amended by 6 Geo. IV. c. 12.) The 35 Geo. III. c. 102. 37 Geo. III. c. 148. and 55 Geo. III. c. 43. relate to the examination of weights and measures. See 5 Burn, 24 ed. tit. Weights and Measures.

10

wise, as by playing with false dice, or the like, is punishable with fine, imprisonment, and pillory. (k) And by the statutes 33 Hen. VIII. c. 1. and 30 Geo. II. c. 24. if any man defrauds another of any valuable chattels by colour of any false token, counterfeit letter, or false pretence, or pawns or disposes of another's goods without the consent of the owner, he shall suffer such punishment, by imprisonment, fine, pillory, transportation, whip. ping, or other corporal pain, as the court shall direct."

k1 Hawk. P. C. 188.

(10) Pillory is now abolished by the 36 Geo. III. c. 138. See in general, 3 Chit. Crim. Law, 994, 995. The cases in which fraud is indictable at common law, seem confined to the use of false weights and measures, the selling of goods with counterfeit n rks, playing with false dice, and frauds affecting the course of justice, and immediately injuring the interests of the public or crown and it is settled that no mere fraud, not amounting to felony, is an indictable offence at common law, unless it affects the public. 2 Burr. 1125. 1 Bla. Rep. 273. S. C. If a person sell by false weights, though only to one person, it is an indictable offence, but if without false weights he sells to many persons a less quantity than he pretends to sell, it is not indictable. 3 T. R. 104. So where a miller converted to his own use corn sent to him to grind, it was decided that no indictment would lie against him, but the proper remedy was by action of trover. 2 Stra. 793. sed vide Sess. Cas. 217. Nor will the case be altered, though the fraud is backed by false assertion, as a declaration that bad measure is correct, or that a commodity is of a different quality from that which in reality it possesses. And in a recent case, it was held not indictable for a miller receiving good barley to grind at his mill, to deliver a nasty and unwholesome mixture of oat and barley meal, different from the produce of the barley. 4 M. & S. 214. Nor will an indictment lie, against a person who contracted with a guardian of the poor, for delivering bread short of weight. MS. And an indictment does not lie for a deceitful misrepresentation and warranty of a horse, unless there be a conspiracy. 1 Stark. C. N. P. 402.; and see 1 Carr. N. P. Rep. 661. Or if a man demand a debt in the name of another, producing no voucher to support his claim, 1 Salk. 379. 1 East Rep. 185.; or if a person obtain goods from a tradesman by pretending to be sent by a customer. 2 Stra. 866. And no indictment will lie at common law for giving a check in payment on a banker with whom the party has no effects. 2 Leach, 647. 6 T. R. 565. sed vide 3 Campb. 370. contra.

On the other hand, though a single act of selling wrought gold under the sterling alloy is not an indictable offence. Cowp. 323., yet where there is a counterfeit mark put on goods, to make those of an inferior seem to be of higher quality, the offender may be indicted. Trem. P. C. 103. 6. Selling by false measure is an indictable offence; selling under measure is ground only for a civil action. Cowp. 324. The selling of bad wine, pretending it to be good, has been holden indictable, 2 Ld. Raym. 1179.; but lord Ellenborough has suggested that this was a case of conspiracy, or is to be supported on the ground only that the wine sold was unwholesome for man. 6 East, 133. 4 M. & S. 220. Using false dice is an indictable offence at common law, as a common gamester is a public nuisance, 2 Rol. Abr. 78. Cro. Jac. 497.; and the legislature have, by 16 Car. II. c. 7. and 9 Ann. c. 14., further punished it with pecuniary forfeiture. Cheating at a race is indictable at common law. 6 Mod. 42. If a minor go about town, and pretending to be of age, defraud a great many persons by taking credit for considerable quantities of goods and then insist on his non-age, he may be indicted as a common cheat. Barl. 100. If the captain and purser of a man of war deliver to the commissioners for victualling the navy a false bill of exchange, false accounts, certificates and vouchers, they may be indicted for an offence against the interests of the public service. 4 East Rep. 171, 2. Where a person falsely pretended he had power to discharge soldiers, took money of a soldier to discharge him, he was held indictable. 1 Latch. 202. The supplying prisoners of war with unwholesome food on a contract is criminal, as an offence againt the public health. 6 East, 133, 6. It seems also, that an indictment will lie against a clergyman for embezzling and misapplying money collected on a brief for the relief of sufferers by fire. 1 Bla. Rep. 443. sed quære. And if an apprentice enlist in order to obtain the bounty money, knowing that he must be discharged as incompetent to serve, he is guilty of a misdemesnor at common law. 1 Leach, 174. ib.

(11) Pillory is now abolished by the 56 Geo. III. c. 138. The general pawn-broker's act, 39 & 40 Geo. III. c. 99. virtually repeals the 30 Geo. II. c. 24. as to the pawning of another's goods without consent of the owner, and the offence is thereby punishable by penalties.

The provisions of Hen. VIII. & Gen. II. are extended by the 52 Geo. III. c. 64. to obtaining bonds, bills of exchange, bank notes, securities, or orders for the payment of money, or the transfer of goods, or any valuable thing whatever. By the 3 Geo. IV. c. 14. the offender may be sentenced to hard labour. See as to this offence, 3 Chit. Crim. Law. 996. & c.

These acts extend to every description of false pretences by which goods may be obtained with intent to defraud, 3 T. R. 103.; and, therefore, it will not avail the defendants that the pretence consists in a false representation of something to take place at a future time, as that a bet had been laid that a certain pedestrian fete would be performed, 3 T. R. 98.; a pretence by a man that he was employed by a nobleman to carry horses to Ireland, and that he had been detained by contrary winds till his money was gone, is within the act, 3 T. R. 98. 828.; so if a man be authorized to inspect and pay a number of journeymen, and to draw on the clerk of the masters

6. The offence of forestalling the market is also an offence against public trade. This, which (as well as the two following) is also an offence at common law, (1) was described by statute 5 & 6 Edw. VI. c. 14. to be the buying or contracting for any merchandise or victual coming in the way to market; or dissuading persons from bringing their goods or provisions there; or persuading them to enhance the price, when there: any of which practices may make the market dearer to the fair trader.

7. Regrating was described by the same statute to be the buying of corn, or other dead victual, in any market, and selling it again in the same market, or within four miles of the place. For this also enhances the price of the provisions, are every successive seller must have a successive profit.

8. Engrossing was also described to be the getting into one's possession, or buying up, large quantities of corn, or other dead victuals, with intent to sell them again. This must of course be injurious to the public, by putting it in the power of one or too rich men to raise the price [159] of provisions at their own discretion.12 And so the total engrossing

I 1 Hawk. P. C. 234.

for the amount of the sums earned, and he delivers in a false account and draws on the clerk for the amount which he obtains, he will be guilty under the statute; as he would never have obtained the credit, unless he had delivered his fictitious estimate. 2 East P. C. 830. And ifa carrier obtains money by pretending to have delivered goods and to have lost the receipt given him by the person to whom they were directed, he may be indicted for the statutable offence. 2 East Rep. 30. So if a person procure a tradesman to sell him goods as for ready money, direct him to send his servant with them to his lodgings, and then deliver fabricated bills in payment, retaining the goods, though he cannot be prosecuted for felony in stealing them, he may be found guilty of obtaining them by false pretences. 2 Leach, 614. And obtaining property by giving a check on a banker where the party had no account, is an offence within the act. 8 Camp. 370. (6 T. R. 565. overruled.) It seems, that obtaining money from the county treasurer by a forged order, purporting to be signed by a magistrate, for payment of expenses of conveying vagrants, is an offence within the act. 1 Burn J. 24th ed. 591. Russ. & Ry. C. C. 317. 1 Stark. C. N. P. 896. S. C. A mere pretence that the party would do an act which he did not mean to do (as a pretence to pay for goods on delivery) is not a false pretence within the act. Russ. & Ry. C. C. 461. The pretence must be for the purpose only of obtaining the property; a pretence to a parish officer as an excuse for not working, that the party had not clothes, which he really had; though it induced the officer to give him clothes, is not within the act. Russ. & Ry. C. Č. 504. There may be a sufficient false pretence within the act by the acts and conduct of the party, without any verbal misrepresentations, and, therefore, where the prisoner obtained money from the keeper of a post-office, by assuming to be the person mentioned in a money order, which he presented for payment, though he made no false declaration or assertion in order to obtain the money, it was held a false pretence within the act, Russ. & Ry. C. C. 81.; and the fact of uttering a counterfeit note as a genuine one is tantamount to a representation that it was one. Russ. & Ry. C. C. 127. It has been questioned whether an attempt to obtain money by false pretences is indictable. Russ. & Ry. C. C. 107. notes. 1 Burn J. 24th edit. 591. S. C. See 6 East, 464.

The punishment is prescribed by the different statutes creating the offence: it is at least as severe as in cases of simple larceny. In a late case, defendant was sentenced to transportation for seven years. 3 Stark. C. N. P. 28. But when goods have been obtained by mere fraud, the court have no power, as in case of felony, to award restitution to the owner. 2 Leach, 585. 5 T. Chitty.

R. 175.

(12) By the 31 Geo. III. c. 30. corn may be bought for the purpose of storing in granaries and reselling it.

The modern law on this subject is well discussed in I East, 143.; (and see 2 Chit. Crim. Law, 527, &c.) In that case it was decided that spreading rumours with intent to raise the price of a particular species of aliment, endeavouring to enhance its price by persuading others to abstain from bringing it to market, and engrossing large quantities in order to resell them at the exorbitant prices occasioned by his own artifices, are offences indictable at common law, and subject the party so acting to fine and imprisonment at the discretion of the court in which he is convicted. It was also held, that hops, though not used immediately for food, fall within this rule. But, at the present day, it would probably be holden that no offence is committed unless there is an intent to raise the price of provisions by the conduct of the party. For the mere transfer, of a purchase in the market where it is made, the buying articles before they arrive at a public market, or the purchasing of a large quantity of a particular article, can scarcely be regarded as in themselves necessarily injurious to the community, and as such, indictable offences; a party buying and selling again, does not necessarily increase the price of the commodity to the consumer, for

of any other commodity, with an intent to sell it at an unreasonable price, is an offence indictable and fineable at the common law. (m) And the general penalty for these three offences by the common law (for all the statutes concerning them were repealed by 12 Geo. III. c. 71.) is, as in other misdemeanors, discretionary fine and imprisonment. (n) Among the Romans these offences and other mal-practices to raise the price of provisions were punished by a pecuniary mulct. "Poena viginti aureorum statuitur "adversus eum, qui contra annonam fecerit, societatemve coierit quo annona "carior fiat." (o)

9. Monopolies are much the same offence in other branches of trade, that engrossing is in provisions: being a licence or privilege allowed by the king for the sole buying and selling, making, working, or using of any thing whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before. (p) These had been carried to an enormous height during the reign of queen Elizabeth ; and were heavily complained of by sir Edward Coke, (q) in the beginning of the reign of king James the first: but were in great measure remedied by statute 21 Jac. I. c. 3. which declares such monopolies to be contrary to law and void (except as to patents, not exceeding the grant of fourteen years, to the authors of new inventions ; 13 and except also patents concerning printing, saltpetre, gunpowder, great ordnance, and shot); and monopolists are punished with the forfeiture of treble damages and double costs, to those whom they attempt to disturb; and if they procure any action, brought against them for these damages, to be stayed by any extrajudicial order, other than of the court wherein it is brought, they incur the penalties of praemunire. Combinations also among victuallers or artificers, to raise the price of provisions, or any commodities, or the rate of labour, are in many cases severely punished by particular statutes; and in general by statute 2 & 3 Edw. VI. c. 15. with the forfeiture of 10. or twenty days' imprisonment, with an allowance of only bread and water, for

the first offence; 201. or the pillory, for the second; and 407. for [160] the third, or else the pillory, loss of one ear, and perpetual infamy. In the same manner, by a constitution of the emperor Zeno, (r) all monopolies and combinations to keep up the price of merchandise, provisions, or workmanship, were prohibited upon pain of forfeiture of goods and perpetual banishment.14

m Cro. Car. 232.
p 1 Hawk, P. C. 231.

n 1 Hawk, P. C. 235.
q 3 Inst. 181.

o Ff. 48. 12. 2.
r Cod. 4. 59. 1.

the division of labour or occupations will in general occasion the commodity to be sold cheaper to the consumer, see Smith Wealth of Na. vol. ii. 309., and index, title “Labour;" and many cases may occur in which a most laudable motive may exist for buying up large quantities of the same commodity. See the arguments, &c. in 14 East, 406. 15 East, 511. Indeed, in the case of the King v. Rusby, on the indictment being argued, the court were equally divided on the question, whether regrating is an indictable offence at common law, and though the defendant was convicted, no judgment was ever passed upon him. MSS. "Raising and spreading a story that wool would not be suffered to be exported in such a year, probably by some stock-jobbers in those times, whereby the value of wool was beaten down, though it did not appear the defendants reaped any particular advantage by the deceit, was, on account of its being an injury to trade, punished by indictment; and a confederacy without a further act done to impoverish the farmers of excise, and lessen the duty, has been held an offence punishable by information." Opinion of Mr. West, 2 Chalmers, 247, &c. It is an indictable offence, to conspire on a particular day by false rumours to raise the price of public government funds, with intent to injure the subjects who should purchase on that day; and that the indictment was well enough, without specifying the particular persons who purchased, as the persons intended to be injured, and that the public government funds of this kingdom might mean either British or Irish funds, which, since the union, were each a part of the funds of the United Kingdom. 3 M. & S. 67. Chitty. (13) See as to patents for new inventions, ante, 2 Book, p. 407. n. 7. (14) This provision as to combinations among workmen to raise the price of wages, is repeal

10. To exercise a trade in any town, without having previously served as an apprentice for seven years, (s) is looked upon to be detrimental to public trade, upon the supposed want of sufficient skill in the trader; and therefore is punished by statute 5 Eliz. c. 4. with the forfeiture of forty shillings by the month."

15

11. Lastly, to prevent the destruction of our home manufactures by transporting and seducing our artists to settle abroad, it is provided by statute 5 Geo. I. c. 27. that such as so entice or seduce them shall be fined 1007. and be imprisoned three months: and for the second offence shall be fined at discretion, and be imprisoned a year: and the artificers, so going into foreign countries, and not returning within six months after warning given them by the British ambassador where they reside, shall be deemed aliens, and forfeit all their land and goods, and shall be incapable of any legacy or gift. By statute 23 Geo. II. c. 13. the seducers incur, for the first offence, a forfeiture of 5007. for each artificer contract. ed with to be sent abroad, and imprisonment for twelve months; and for the second, 1000l. and are liable to two years' imprisonment and by the same statute, connected with 14 Geo. III. c. 71. if any person exports any tools or utensils used in the silk, linen, cotton, or woollen manufactures (excepting woolcards to North America), (t) he forfeits the same and 2007., and the captain of the ship (having knowledge thereof) 1007.; and if any captain of a king's ship, or officer of the customs, knowingly suffers such exportation, he forfeits 100l. and his employment; and is for ever made incapable of bearing any public office and every person collecting such tools or utensils, in order to export the same, shall, on conviction at the assises, forfeit such tools and also 2007.16

CHAP. XIII.

OF OFFENCES AGAINST THE PUBLIC HEALTH AND THE PUBLIC POLICE OR OECONOMY.

THE fourth species of offences, more especially affecting the commonwealth, are such as are against the public health of the nation; a concern of the highest importance, and for the preservation of which there are in many countries special magistrates or curators appointed.

1. The first of these offences is a felony; but, by the blessing of Providence for more than a century past, incapable of being committed in this nation. For by statute 1 Jac. I. c. 31. it is enacted, that if any person infected with the plague, or dwelling in any infected house, be command

ed by the 6 Geo. IV. c. 129. See ante, 137. By the 28 Geo. III. c. 53. s. 2. combinations to raise the price of coals are provided against; and as to combinations to raise the price of bricks, see the 17 Geo. III. c. 42. See the 36 Geo. III. c. 9. s. 1. as to assaulting persons to prevent their buying corn or grain.

(15) These provisions are repealed by the 54 Geo. III. c. 96.; and see the 56 Geo. III. c. 67. for enabling soldiers, mariners, &c. to exercise trades.

(16) All the acts relative to artificers leaving the kingdom are repealed by the 5 Geo. IV.

c. 97.