to cover the supposed deficiency. In Massachusetts and England a sounder view has been taken, it having been there expressly held that a begging letter, making false representations as to the condition and character of the writer, by means of which money is obtained, is a false pretence under the statute.1

A false pre

tence to be distinguished

§ 1154. Assuming a "puff" to mean a loose exaggeration of value, to make it an indictable false pretence would bring almost every sale within the statute, for there are few sales about which there is not some affirmation, from a puff. either express or implied, that is not exactly true.3 Some features must be specified, therefore, which distinguish the mere puff from the false pretence. And the first to be here noticed is that the puff is a general estimate, loosely given as a matter of opinion for which there may be probable grounds, whereas a false pretence is a false statement of a fact known to be false. Thus it is a mere puff, and not indictable, to say of a flock, "This is a first-rate flock;" but to say that a certain lameness, observed by a purchaser, is not disease, but the result of an accident, which statement the defendant knows to be untrue, is a false pretence. So it is a mere puff, and not indictable, to say lumpingly of an article in gross, that it is of a certain weight; but to pretend to have weighed it, and to have found it to be of a particular weight greater than it actually is, is a false pretence."

Mere exaggerated praise not

§ 1155. We may therefore hold generally, that mere exaggerated praise is not a false pretence. Thus to say of a horse that he is a "first class animal," or "a fine trota false pre- ter," or "is all right," is a puff which is not indictable ; but the statute applies where the defendant makes a

tence.

specific false statement as to soundness; and when he falsely pretends to the prosecutor that a certain horse is the famous horse "Charley," which it is not. And it is a mere "puff" to say of a mixture that it is "good," or " first class;" but it is an indictable false pretence to declare falsely that it is a non-explosive burning fluid.3

But other

false sam

ple.

1156. But while it is not indictable to say of a particular article that it is "good;" to sell it by a false sample is indictable. Thus, A. bought cheese of B. at a fair, and wise as to paid for it. Before he bought it, B., offering cheese for sale there, bored two of the cheeses with an iron scoop, and produced a piece of cheese, called a taster, at the end of the scoop, for A. to taste; he did so, believing it to have been taken from the cheese, but it had not, and was from a superior kind of cheese, and fraudulently put by B. into the scoop, the cheese bought by A. being very inferior to it. It was held that B. was indictable for obtaining the price of the cheese from A. by false pretences.5 § 1157. As to false quality, more difficult questions arise." an English case, the prisoner induced a pawnbroker to advance him money on some spoons, which he represented as silver-plated spoons, which had as much silver on them as Elkington's A.” (a known class of plated spoon),

66

and if it be that which the party taking it practically calls for, then an indictment cannot be sustained. Cases, also, may happen when proof of a real equivalent obtained will work an acquittal, though the equivalent named would be illusory. Thus Barnum, to adopt an illustration of Merkel, for a series of years announced "Washington's nurse" as among his curiosities on exhibition, and the part was personated by an old negress named Joyce Heth. She was not really Washington's nurse, and a person paying money to see her, if he paid money for nothing else, paid money without a true equivalent. But was the money truly paid for seeing Washington's nurse? Was it not really paid for the excitement of the show, with a consciousness that each particular item in the showthe "nurse," the mermaid, the woolly

Opinions

are not

always

In

pretences.

horse-might be a deception? If so, though the particular items were illusory, there was a real equivalent, and no indictment could be sustained for obtaining the admission money on false pretences.

1 R. v. Keighley, Dears. & B. 145; Watson v. People, 87 N. Y. 561; 26 Hun, 76; State v. Lambeth, 80 N. C. 393. But see State v. Holmes, 82 Ibid. 607. Cf. other cases cited infra, § 1160. State v. Mills, 17 Me. 211.

• Greenough, in re, 31 Vt. 279. See infra, § 1192.

4 Cowles v. State, 50 Ala. 454.

R. v. Abbott, 2 C. & K. 630; 1 Den. C. C. 273; R. v. Goss, 8 Cox C. C. 262; Bell C. C. 208.

6 As to value, see R. v. Williamson, 11 Cox C. C. 328; Wallace v. State, 11 Lea, 542.

and that the foundations were of the best material. The spoons were plated with silver, but were, to the prisoner's knowledge, of very inferior quality, and not worth the money advanced on them. It was held by the court (Willes, J. dissenting, and Bramwell, B., doubting) that obtaining the money by the false representation as to the quality of the spoons was not an indictable offence within the statute against false pretences, as the article the prisoner delivered to the pawnbroker was the same in specie as he had professed it to be, though of inferior quality to what he had stated.' This decision may be justified on the ground that the statement as to "Elkington's A." was regarded on both sides as only a conjectural estimate, and that "best" material is a term which might be interpreted in several ways. Much less defensible is a decision by Chambers, C. S., that pretending a chain to be gold, when in fact it was only a cheap amalgam, is not within the statute. This, however, is now practically overruled. And it is now settled that selling with a false affirmation of quality may be a false pretence. But a mere opinion or estimate, given as conjectural, is not a false pretence. § 1158. The use of a false brand or trade-mark is indictable. Thus, a false representation that a stamp on a watch was false brand the hall-mark of the Goldsmith's Company, and that the number 18, part thereof, indicated that the watch was made of 18-carat gold, is within the statute, and is not the less so because accompanied by a representation that the watch was a gold one, and some gold was proved to have been contained in its composition."

But use of

is within statute.

The same conclusion was reached in a case already noticed where the evidence was that B. was in the habit of selling baking powders,

1 R. v. Bryan, 40 Eng. L. & Eq. 589; Dears. and B. C. C. 265; 7 Cox C. C. 312.

2 R. v. Lee, 8 Cox C. C. 233.

3 R. v. Suter, 10 Cox C. C. 577; R. v. Roebuck, 36 Eng. L. & Eq. 631; D. & B. 24; 7 Cox C. C. 126; and see R. v. Ball, C. & M. 249.

In R. v. Ardley, L. R. 1 C. C. 301, 40 L. J. M. C. 85, it was noticed that if the defendant, in R. v. Bryan, had represented the spoons as being in fact Elkington's manufacture when he knew they were not, he would have been rightly convicted; and in R. v. Suter, supra, where the jury had found that

4 R. v. Ardley, L. R. 1 C. C. 301; R. the prisoner represented a chain as

v. Foster, 13 Cox C. C. 393.

5 Scott v. People, 62 Barb. 62.

R. v. Suter, 10 Cox C. C. 577-C. C. R. See supra, §§ 1116 et seq.

in fact 18-carat gold, when he knew in fact that it was nothing of the sort, he was held rightly convicted. Roscoe's Cr. Ev. p. 487.

wrapped in printed wrappers, entitled "B.'s Baking Powders," and having his printed signature at the end, and the prisoner had printed a quantity of wrappers in imitation of those of B., only leaving out B.s signature, and sold spurious powders wrapped up in these labels as B.'s powders.'

False state

ment as to weight is

specific

within the statute.

§ 1159. On the question of false weight, we again encounter the distinction already noticed. If a man, selling an article by weight, falsely represent the weight to be greater than it is, and thereby obtain payment for a quantity greater than that delivered, he is indictable for obtaining money by false pretences. It is otherwise, however, if he is selling the article for a lump sum, and merely makes the false representation as a loose conjectural estimate of the value of the aggregate. The test is, is the article sold by weight, and is a deliberate false statement made that it is of a particular weight? If so, there is a false pretence. Thus, the prisoner having contracted to sell and deliver to the prosecutrix a load of coals at 7d. per cwt., delivered to her a load of coals which he knew weighed only 14 cwt., but which he stated to her contained 18 cwt., and produced a ticket showing such to be the weight, which he said he had made out himself when the coals were weighed. She thereupon paid him the price as for 18 cwt., which was 2s. 4d. more than was his due. It was held that the prisoner was indictable for obtaining the 28. 4d. by false pretences. And the same result was reached in a case where the defendant declared that he sold a parcel as 14 tons of coal, when in fact it was but 8 tons, heaping it so as to swell its bulk.5

In another case a baker had contracted with the guardians of a parish to deliver loaves of a certain weight. The relieving officer gave the poor applicants tickets, which they were to take to the baker. He was to give them loaves on their presenting the tickets to him, and afterwards return the tickets, as his vouchers once a

week, with a statement of the amount of the loaves, to the relieving officer, who would give him credit in his account for the amount. The baker was to be paid by the guardians some months later; and by a clause in the contract the guardians had the power, in case of a breach of contract by the baker, of deducting any damages caused by such breach from the amount to be ultimately paid. The baker supplied the poor people who presented tickets with loaves short of the contract weight. It was held that though this was not a fraud indictable at common law, the baker, by returning the tickets for these loaves to the relieving officer, was guilty of falsely pretending that the loaves were of full weight; and though he only obtained credit for their amount in the books of the relieving officer (as the time of payment had not arrived before detection), yet that the baker might be indicted for attempting to obtain money by the false pretence, as the making the false pretence was an act done with the intent of obtaining the money, and was sufficiently proximate to the obtaining it to be considered an attempt, since no other act remained to be done by the baker to entitle him to receive the money.1

False statement as to property offered for

§ 1160. When we come to false statements as to property on which money is to be raised, we apply the same test. Is the statement of value a mere conjectural opinion? If so, it is not a false pretence. Is it an exact statement loan or sale as to some particular fact about such property, essential in determining its value? Then it may be a false pretence. Hence a false statement as to the soundness of a horse may be a false pretence. The principle was extended to real estate in a case where A. applied to B. for a loan upon the

may be

within statute.

1 R. v. Eagleton, 33 Eng. L. & Eq. R. 540; Dears. C. C. 515; 6 Cox C. C. 559. Infra, § 1231. Supra, §§ 180, 1119. 2 Supra, § 1192; Tuck v. Downing, 76 Ill. 71; Holbrook v. Connor, 60 Me. 531; Medbury v. Watson, 6 Met. 246; Davis v. Meeker, 5 Johns. 354; Noetting v. Wright, 72 Ill. 390.

Simar v. Canaday, 53 N. Y. 298; Kost v. Bender, 25 Mich. 515; Neil v. Cummings, 75 Ill. 170; Cruess v. Fessler, 39 Cal. 336; State v. McConkey, 49 Iowa, 499.

4 R. v. Keighley, D. & B. 145; Watson v. People, 87 N. Y. 561; 26 Hun, 76; State v. Stanley, 64 Me. 157; Com. v. Jackson, 132 Mass. 16; People v. Crissie, 4 Denio, 525. But see supra, § 1155. In State v. Heffner, 84 N. C. 751, it was held that while to say that the eyes of a horse were sound was a mere opinion, not within the statute, it is otherwise with the statement that there has never been anything the matter with the horse's eyes.