security of a piece of land, and falsely and fraudulently represented that a house was built upon it. B. advanced the money upon A.'s signing an agreement for a mortgage, depositing his lease and executing a bond as collateral security. It was held that A. was properly convicted of obtaining money by false pretences.1 And the same distinction applies to the mortgage of personal property to which the defendant has no title, and to a false allegation that a particular mortgage was a first lien. The same limitations are applicable generally to the pretence that certain land is unincumbered; and this although the prosecutor might on further inquiry have learned the truth. To sell land already sold to another is also an indictable offence, unless the vendor is acting under mistake, and witnout intent to defraud." And so of false war ranty when not a mere matter of opinion. § 1161. But a warranty when it is a mere statement as to matters transparently open to the vendee, or when it is an engagement to assume certain risks of title, is not a false pretence. Thus where the prisoner sold to the prosecutor a reversionary interest which he had previously sold to another, and the prosecutor took a regular assignment of it with the usual covenant of title, Littledale, J., held that he could not be convicted for obtaining money by false pretences; for if this were within the statute, every breach of warranty or false assertion at the time of a bargain might be treated as a false pretence. Such warranties, in fact, are mere matters of form, and considered as such; or, if they are inducements to purchase, are only so because they are promises by the vendor to hold the vendee harmless. But if a warranty is couched in the shape of a positive false statement of a material latent fact, which statement leads to 1 R. v. Burgon, 36 Eng. L. & Eq. 615; Dears. & B. C. C. 11; 7 Cox C. C. 131. See State v. Hill, 72 Me. 238. eCom. v. Lincoln, 11 Allen, 233; State v. Newell, 1 Mo. 248. This and the following case are in some States (e. g., Massachusetts) specifically indictable by statute. See Nixon v. State, 35 Ala. 120. 3 People v. Sully, 5 Parker C. R. 142. But see under California statute, People v. Cox, 45 Cal. 343. State v. Dorr, 33 Me. 498; State v. Hill, 72 Me. 238; Com. v. Grady, 13 Infra, § 1186; People v. Sully, ut sup. ; though see Com. v. Brady, 13 Bush, 285. People v. Garnett, 35 Cal. 470. 1 Infra, § 1192; State v. Young, 76 N. C. 258; State v. Chunn, 19 Mo. 233. 8 R. v. Codrington, 1 C. & P. 661. R. v. Codrington, ut supra; State v. Chunn, 19 Mo. 233. the purchase, it is a false pretence. Nor is it any defence to a charge of a false pretence that it was backed up by a written warranty as to the future.2 And so of worthless paper. § 1162. Obtaining goods by giving in payment a cheque upon a banker with whom the party keeps no account, and which negotiating he knows will not be paid, is clearly within the statute." or spurious So where one in a fictitious name delivered to a person, to sell on commission, spurious lottery tickets purporting to be signed by himself, and received from the agent the proceeds of the sale, he was held liable to indictment for obtaining such agent's goods by false pretences. And so generally as to the passing of spurious notes or coin if goods or money be obtained thereby. But where the prisoner passed the note of a country 1 R. v. Kenrick, 5 Q. B. 49; Dav. & M. 208; R. v. Abbott, infra; State v. Dorr, 33 Me..498; State v. Stanley, 64 Ibid. 157; State v. Jones, 70 N. C. 75; State v. Munday, 78 Ibid. 460; State v. Newell, 1 Mo. 248. See infra, § 1180. refused payment, and he would not have been permitted to overdraw. He did not intend when he gavethe cheques to the prosecutor to meet them, but intended to defraud. It was ruled that there was evidence of the false pretence that the cheques were good and Watson v. People, 87 N. Y. 561; valid orders for the payment of their 26 Hun, 76. 3 R. v. Freeth, R. & R. 127; R. v. Jackson, 3 Camp. 370; 2 East P. C. 940; R. v. Parker, 2 Mood. C. C. 1; 8 C. & P. 825; Smith v. People, 47 N. Y. 303; Foote v. People, 17 Hun, 218; Com. v. Collins, 8 Phila. 609; Maley v. State, 31 Ind. 192. In R. v. Hazelton, L. R. 2 C. C. 134; 13 Cox C. C. 1, the prisoner was indicted for obtaining goods by (amongst others) the false pretence that certain cheques were good and valid orders for the payment of their amount. It was proved that the prisoner ordered goods of the prosecutors, and said he wished to pay ready money for them. He gave cheques on a bank for the price, and took away the goods. The prisoner had shortly before opened an account at the bank, but had drawn out the amount deposited, except a few shillings. Various cheques of his had been amount. On this case Sir J. F. Stephen (Dig. C. L. art. 330) comments as follows: "There was some slight difference of opinion (or rather of expression) amongst the judges in this case. The judges were anxious to point out that to give a cheque on a bank where the drawer has no balance is not, necessarily, an offence, as he may have a right to overdraw or a reasonable expectation that, if he does, his drafts will be honored. These considerations would seem to affect not the falseness of the pretence, but the defendant's knowledge of its falsehood, and his intent to defraud.” 4 Com. v. Wilgus, 4 Pick. 177. Infra, § 1170. 5 R. v. Coulson, T. & M. 332; 1 Den. C. C. 592; 4 Cox C. C. 227; R. v. Freeth, R. & R. 127; R. v. Jarman, 38 L. T. (N. S.) 460; 14 Cox C. C. 111; bank which he knew had stopped payment, it appearing that one of the partners was solvent, Gaselee, J., held that he could not be convicted for obtaining money under false pretences, there being no proof that the note had lost its value. Whether the note is valueless is to be determined on all the evidence in the case; and evidence that the bank has paid a dividend is of weight, as showing the note is of some value. Generally, however, it is enough to prove in such case that the bank was broken, and unable to pay; and that these facts the defendant knew. Nor does it make any difference that the note was on its face defective, and that the prosecutor could read. On the other hand, the mere passing of a note, or other business paper on its nominal value, is an affirmation of its value. For A. falsely to sign his name as agent for B. and thereby obtain goods, is a false pretence in A.; and so for A. falsely to declare that a signature of a non-existent person made by him is good. § 1163. Even a post-dated cheque is within the statute, if the defendant falsely declares or implies that the cheque is genuine and good. Thus where the prisoner was charged with falsely pretending that a post-dated cheque, drawn by himself, was a good and genuine order for £25, and R. v. Dowey, 11 Ibid. 115; Com. v. Hulbert, 12 Met. 446; Com. v. Nason, 9 Gray, 125; Maley v. State, 31 Ind. 192; Cheek v. State, 1 Cold. 172, and cases cited infra, § 1164. See State v. Allred, 84 N. C. 749. 1 R. v. Spencer, 3 C. & P. 420. 2 Supra, § 1165. And so of uttering post-dated cheque. residence, where he was, a friend who was with him to get, as he said, the money to pay for the goods. The friend soon after returned with a cheque on a bank, purporting to be drawn by one Steinbach, and dated August 29. This, prisoner represented to be a valid security, and attention 3 R. v. Evans, Bell C. C. 187; 8 Cox being called to the fact that it was C. C. 257. See infra, § 1165. dated the 29th, stated that this was done because it was so late in the day 5 R. v. Jessop, Dears. & B. C. C. 442. and the bank was closed. No account Infra, § 1189. 6 See cases cited in prior notes to this section. Infra, § 1170; see Lesser v. People, 73 N. Y. 78. 7 Supra, §§ 657, 669. Supra, §§ 659, 660. Lesser v. People, 73 N. Y. 78; S C., 12 Hun, 668. In this case the facts were as follows: On the 28th of August the prisoner, having bargained for goods of complainant, sent out from complainant's was kept at the bark by any Stein- of the value of £25, whereby he obtained a watch and chain; and the jury found that before the completion of the sale and delivery of the watch by the prosecutor to the prisoner, he represented to the prosecutor that he had an account with the bankers on whom the cheque was drawn, and that he had a right to draw the cheque, though he postponed the date for his own convenience, all of which was false; and that he represented that the cheque would be paid on or after the day of the date, but that he had no reasonable ground to believe that it would be paid, or that he had the funds to pay it; he was held to be properly convicted.1 Obtaining § 1164. As the person who advances money or goods on a forged cheque parts absolutely with his property in the thing passed, it is not larceny but false pretences so to obtain money or goods.2 money Such has been held to be the law in a case where a servant, who had authority to buy goods, and was to be repaid on producing a ticket containing a statement of the purchase, produced such a ticket, and obtained the amount stated therein, no purchase having been in fact made.3 Cases, however, can be readily conceived, where the defendant brings the order ostensibly for a third person, in which, as only possession of the money or goods is passed to the defendant by the prosecutor, the defendant is guilty of larceny, if he fraudulently appropriate the property. It may happen, however, that where forgery is a felony, and false pretences a misdemeanor, the latter, when the two coalesce, may merge at common law in the former." False claims to § 1164 a. By the Revised Statutes of the United States ($5438), it is made an indictable offence to present a a statutory false claim to the government, knowing it to be false." government offence. 1 R. v. Parker, 7 C. & P. 825; 2 Mood. C. C. 1. See infra, § 1174. That passing half a bank note may be a false pretence, see R. v. Murphy, 13 Cox C. C. 298. 2 R. v. Prince, L. R. 1 C. C. 150; 11 Cox C. C. 173; so as to obtaining goods by forged or flash notes or coin; R. v. Coulson, T. & M. 332; 1 Den. C. C. 592; 4 Cox C. C. 227; R. v. Byrne, 10 Ibid. 369; Com. r. Hulbert, 12 Met. 446; Com. v. Stone, 4 Met. 43; Com. v. Nason, 9 Gray, 125; Tyler v. State, 2 Humph. 37; though see R. v. Evans, 5 C. & P. 553; Cheek v. State, 1 Cold. (Tenn.) 172. 3 R. v. Barnes, 2 Den. C. C. 59. • Supra, § 964. Infra, § 1344. 6 See U. S. v. Hull, 14 Fed. Rep. 324; U. S v. Snyder, Ibid. 554; 4 McCr. 618; U. S. v. Stroback, 4 Woods, 592. 3. Falsity of the Pretences. of falsity § 1165. It is generally impossible to prove an absolute negative, and it is sufficient, therefore, for the prosecution to ap- Only strong proximate, as far as is in its power, to such negative, probability leaving it to the defendant, if he can, to break this down need be by proving the affirmative fact. This may be illustrated shown. by cases where the note of a broken bank is passed. The prosecution must, as has been seen,2 prove that the bank is broken; and if it appear that, though the bank has stopped, there are still solvent parties who are liable for its paper, there can be no conviction on a count alleging the note to be worthless. Yet where the pretence is that a note is worth its nominal value, or that it is good, it is not necessary for the prosecution, where the bank is insolvent, to negative every possibility of payment by showing that all the stockholders of the bank had paid in their stock.* The same position, i. e., that proximate proof is enough, was reached where the allegation was that B. obtained twenty yards of carpet by falsely pretending that "a certain person who lived in a large house down the street, and had had a daughter married some time back, had been at him about some carpet, and had asked him to procure a piece of carpet, whereas no such person had been at him about any carpet, or had any such person asked him to procure any piece of carpet." The evidence was that B. obtained twenty yards of carpet by stating to the prosecutor, who was a shopkeeper in a village, that he wanted some carpeting for a family living in a 1 See Whart. on Ev. § 356; Whart. engaging an assistant from whom he on Cr. Ev. § 321. P., the prosecutor, lent money to C. at interest, on the security of a bill of sale on furniture, a promissory note of C. and another person, and a declaration made by C. that the furniture was unincumbered. The declaration was untrue at the time it was handed to P., C. having, a few hours before, given a bill of sale for the furniture to another person, but not to its full value. It was held that there was evidence to support the prosecution. R. v. Meakin, 11 Cox C. C. 270. But where it appeared that C., on received a deposit, represented to him that he was doing a good business, and that he had sold a good business for a certain large sum, whereas the business was worthless, and he had been bankrupt, it was ruled that the indictment could not be sustained upon either of the representations. R. v. Williamson, 21 L. T. N. S. 444-Byles. See supra, § 1162. 3 R. v. Spencer, 3 C. & P. 420; R. v. Evans, Bell C. C. 187; 8 Cox C. C. 257. Com. v. Stone, 4 Met. 43. |