Sivut kuvina

in particular trades, and which are enumerated by Hawkins and Burn, but are chiefly of use among the traders themselves. The offense, also, of breaking the assize of bread, or the rules laid down by law, and particularly by 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 offense of selling by false weights and measures, the standard of which fell under our consideration in a former volume. The punishment of bakers breaking the assize 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 dung-cart; which, as we learn from Doomsday Book, was the punishment for knavish brewers in the city of Chester so early as the reign of Ed[158] ward the Confessor. "Malam cerevisiam faciens, in cathedra ponebatur stercoris." But now the general punishment 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 otherwise, as by playing with false dice, or the like, is punishable with fine, imprisonment, and pillory.k And by the statutes 33 Hen. VIII.,

Breaking assize of bread.

False weights and


h See vol. i., page 274.
i3 Inst., 219.

(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. 106, 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. 106; and 5 Geo. IV., c. 50, as to the baking of bread where an assize is set. 1 Burn, Just., tit. "Bread."-[CHITTY.]

(9) The principal act now in force relative to the regulation and use of weights and incasures is the 5 & 6 Will. IV., c. 63, which contains stringent provisions for the examination and seizure of false weights and measures. See 5 Burn, Just., tit. Weights and Measures," and ante, vol. i., p. 274.


(10) Pillory is now abolished by the 56 Geo. III., c. 138, and 1 Vict., c. 23. The cases in which fraud is indictable at common law seemed confined to the use of false weights and measures, the selling of goods with counterfeit marks,

Seld., Tit. of Hon., b. 2, c. 5, § 3. * 1 Hawk., P. C., 188.

playing with false dice, and frands affecting the course of justice, and immediately injuring the interests of the public or crown; and it is settled that no mere frand not amounting to felony is an indictable offense at common law, unless it affects the public. 2 Burr.. 1125; 1 Bla. Rep., 273. If a person sell by false weights, though only to one person, it is an indictable offens», 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 a false assertion; as a declaration that a bid measure is correct, or that a com modity is of a different quality from that which in reality it possesses. In another 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. & Selw., 214. Nor will an indict

c. 1, and 30 Geo. II., c. 24, if any man defrauds another of any valuable chattels by color of any false token, counterfeit letter, or false pretense, or pawns or disposes of another's goods without the consent of the owner," he shall suffer such punishment, by imprisonment, fine, pillory, transportation, whipping, or other corporeal pain, as the court shall direct."

ment 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. & P., 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.

On the other hand, though a single act of selling wrought gold under the sterling alloy is not an indictable offense, Cowp., 323; yet where there is a counterfeit mark put on goods, to make those of au inferior seem to be of higher quality, the offender may be indicted. Tiem., P. C., 103, 6. Selling by false measure is an indictable offense; 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. & Sel., 220. Using false dice is an indictable offense 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 victualing the navy a false bill of exchange, false accounts, certificates, and vouchers, they may be indict ed for an offense against the interests of the public service. 4 East, 171, 2. VOL. IV.-L

Where a person falsely pretending he had power to discharge soldiers, took money of a soldier to discharge him, he was held indictable. 1 Latch., 202. 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 misdemeanor at common law. 1 Leach, 174.-[CHITTY.]

(11) The general Pawnbroker'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 the consent of the owner, and the offense is thereby punishable by penalties.— [CHITTY.]

(12) [The offense of obtaining property by false pretenses is now provided for by the stat. 7 & 8 Geo. IV., c. 29, s. 53, which, after reciting that a failure of justice frequently arises from the subtle distinction between larceny and fraud, for remedy thereof enacts, that if any person shall, by any false pretense, obtain from any other person any chattel, money, or valuable security (see 7 & 8 Geo. IV., c. 29, s. 5, post, p. 234), with intent to cheat and defraud any person of the same, the offender shall be guilty of a misdemeanor, and, on conviction, be liable to transportation for seven years, or to such punishment, by fine or imprisonment, or both, as the court shall award; with a proviso, that if, upon the trial of any person indicted for such misdemeanor, it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted of the misdemeanor. It is also enacted that no such ind ctment shall be removable by certiorari, and that no person tried for the misdemeanor shall be liable to be afterward prosecuted for larceny upon the same facts.

The decisions upon the repealed stat ute, 30 Geo. II., c. 24, are equally applicable to the present.]

The act extends to every description of false pretenses by which goods may be obtained with intent to defraud, 3 T. R., 103; and, th refore, it will not 161

6. Forestalling.

6. The offense of forestalling the market is also an offense against public trade. This, which (as well as the two follow

A mere pretense avail the defendant that the pretense Stark., N. P. C., 396. consists in a false representation relating that the party would do an act which he to something to take place at a future did not mean to do (as a pretense to time, as that a bet had been laid that a pay for goods on delivery) is not a false certain pedestrian feat would be per- pretense within the act. Russ. & Ry., formed. 3 T. R., 98. A pretense by a C. C., 461 [for the pretense must be of man that he was employed by a noble- an existing fact]. The pretense must man to carry horses to Ireland, and that be for the purpose only of obtaining the he had been detained by contrary winds property; a pretense to a parish officer till his money was gone, is within the as an excuse for not working, that the act. 3 T. R., 98, 828. So if a man be party had not clothes, which he really authorized to inspect and pay a number had, though it induced the officer to of journey men, and to draw on the clerk give him clothes, is not within the act. of the masters for the amount of the Russ. & Ry., C. C., 504. There may sums earned, and he delivers in a false be a sufficient false pretense within the account, and draws on the clerk for the act, by the acts and conduct of the paramount, which he obtains, he will be ty, without any verbal misrepresentaguilty under the statute, as he would tion; and therefore, where the prisoner never have obtained the credit unless obtained money from the keeper of a he had delivered his fictitious estimate. post-office, by assuming to be the per2 East, P. C., 830. And if a carrier ob- son mentioned in a money order, which tains money by pretending to have de- he presented for payment, though he livered goods and to have lost the re- made no false declaration or assertion ceipt given by the person to whom they in order to obtain the money, it was were directed, he may be indicted for held a false pretense within the act. the statutable offense. 2 East, Rep., 30. Russ. & Ry., C. C., 81. And the fact So if a person procure a tradesman to of uttering a counterfeit note as a genusell him goods as for ready money, di- ine one is tantamount to a representation rect him to send his servant with them that it was one. Russ. & Ry., C. C., to his lodgings, and then deliver fabrica- 127. [See 3 C. & P., 420; 5 C. & P., ted bills in payment, retaining the goods, 553; 7 C. & P., 784; 10 Ad. & E., 34; though he can not be prosecuted for fel- 1 C. & Mar., 249, 328.] It has been ony in stealing them, he may be found questioned whether an attempt to obtain guilty of obtaining them by false pre- money by false pretenses is indictblea. tenses. 2 Leach, 614. And obtaining Russ. & Ry., C. C., 107, notes; 1 Burn, property by giving a check on a banker Just., 24th edit., 591; see 6 East, 464. where the party had no account, is an offense within the act. 3 Camp., 370. 2 Mood., C. C., 1. So the obtaining of a loan from the drawer of a bill, ac- The indictment must state that the cepted by the defendant, and negotia- money or goods obtained are the propted by the drawer, of part of the amount, erty of the person whom it was intendunder the false pretense that the de- ed to defraud, since otherwise the confendant was prepared with the remain- viction or acquittal could not be pleaded der, was held to be an offense within in bar to a subsequent indictment for the statute, the defendant being shown larceny upon the same facts, 8 C. & P., not to be prepared, and not intending 197; and this defect is not aided by verso to apply the money. 2 M. & Rob., dict, but renders the indictment bad on 18.] It seems that obtaining money error. 8 Ad. & Ell., 481. from the county treasurer by a forged order, purporting to be signed by a magistrate, for payment of the expenses of conveying vagrants, is an offense within the act. Russ. & Ry., C. C., 317; 1 business in the ordinary course of trade.*

[CHITTY.] But a conspiracy to obtain money by false pretenses clearly is. 2 B. & Ald., 204.

See the stat. 5 & 6 Vict., c. 122, s. 35, as to the punishment of bankrupts who have fraudulently obtained goods under the false pretense of carrying on

Obtaining the signature of a person to a written instrument, or obtaining from him money, personal property, or valuable thing, by color of any false token or writing, or by any other false pretense, with the intent to cheat or defraud such person, subjects the offender, upon conviction, to imprisonment in a state prison for the term of three years, or to a fine equal to three times the value of the money, property, or thing obtained, and to imprisonment in a county jail for the term of one year.-(2 R. S., 677, § 53.)

ing) is also an offense at common law, is 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 make the market dearer to the fair trader.


7. Regrating is described by the same statute to be the buy- 7. Regraing 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, as every successive seller must have a successive profit.

8. Engrossing was also described to be the getting into one's 8. Engrosspossession, or buying up large quantities of corn, or other dead ing. 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 [159] two rich men to raise the price of provisions at their own discretion." And so the total engrossing of any other commodity, with intent to sell it at an unreasonable price, is an offense indictable and finable at the common law.m And the general penalty for these three offenses, by the common law (for all the statutes concerning them were repealed by 12 Geo. III., c. 71), is, as in other minute misdemeanors, discretionary fine and im

12 Hawk., P. C., 235.

m Cro. Car., 232.

(13) 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 the case of Rex v. Waddington, 1 East, 143. In that case it was decided that spreading rumors with intent to raise the price of a particular species of aliment, endeavoring 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 of fenses 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 offense 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 offenses; a party buying and selling

again does not necessarily increase the
price of the commodity to the consumer,
for the division of labor 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 "Labor;" 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 Rex
v. Rusby, on the indictment being ar-
gued, the court were equally divided on
the question, whether regrating is an in-
dictable offense at common law, and
though the defendant was convicted, no
judgment was ever passed upon him.
MSS. It is an indictable offense to con-
spire on a particular day, by false ru-
mors, to raise the price of public gov-
ernment funds, with intent to injure the
subjects who should purchase on that
day; and it was held that the indict-
ment was well enough, without specify-
ing the particular persons who pur-
chased, as the persons intended to be
injured; and that the public govern-
ment 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. & Selw.,

prisonment. Among the Romans these offenses, and other malpractices to raise the price of provisions, were punished by a pecuniary mulct. "Pœna viginti aureorum statuitur adversus eum, qui contra annonam fecerit, societatemve coierit quo annona carior fiat."o

9. Monopolies are much the same offense in other branches of trade that engrossing is in provisions; being a license 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. These had been carried to an enormous height during the reign of Queen Elizabeth, and were heavily complained of by Sir Edward Coke in the beginning of the reign of King James the First; but were in a 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 ;" 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 extra-judicial order, other than the court wherein it is brought, they incur the penalties of pramunire. Combinations, also, among victualers or artificers, to raise the price of provisions or any commodities, or the rate of labor, are in many cases severely punished by particular statutes; and, in general, by statutes 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 offense; £20 or pillory for the second; and £40 for the third; [160] or else the pillory, loss of one ear, and perpetual infamy." In

the same manner, by a constitution of the Emperor Zeno, 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.

9. Monopolies.

10. Exercising trade without

10. To exercise a trade in any town, without having previously served as an apprentice for seven years, is looked upon apprentice to be detrimental to public trade, upon the supposed want of


■ 1 Hawk., P. C., 235.

Ff., 48, 12, 2.

P 1 Hawk., P. C., 235.

9 3 Inst., 181.

r Cod., 4, 59, 1.

• See vol. i., page 427.

(14) See, as to patents for new in- raise the price of coals are provided ventions, ante, vol. ii., p. 407; 5 & 6 against; and as to combinations to raise Will. IV., c. 83. the price of bricks, see the 17 Geo. III., c. 42. [CHITTY.] See the stat. 7 & 8 Geo. IV., c. 29, s. 26, as to assaulting persons to hinder them from buying or selling grain, &c., in a market, &c., post, p. 217 note.

(15) This provision as to combinations among workmen to raise the price of wages is repealed by the 6 Geo. IV., c. 129; see ante, 136, n. (19). By the 28 Geo. III., c. 53, s. 2, combinations to

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