large house in the village, who had had a daughter lately married; that B. afterwards sold the carpeting so obtained to two different persons, and a lady was called, who lived in the village, whose daughter was married about a year previously, and who stated that she had not sent B. to the prosecutor's shop for the carpet. It was held, that there was a sufficient false pretence proved and negatived, and the case of the prosecution was made out. And where a postman falsely pretended that the sum of 2s. was payable on a post letter intrusted to him for delivery, whereas 18. only was payable, it was held that the offence was complete when he made the pretence, and that the absence of any evidence to show positively that he did not pay over the extra 1s. to the superior officer was immaterial to his guilt or innocence. That the defendant knew the statement to be false, is also to be inferentially shown.3 tion. § 1166. The burden of approximating a negative is on the prosecution, though when this is done, any matter peculiarly Burden of within the defendant's knowledge is to be supplied by the negative is. on prosecu- defence. In other words, while the prosecution must make out all the elements of its case, this is to be done inferentially as closely as possible; and when a reasonable certainty is reached, it is for the defendant to produce the affirmative proof requisite to break down the prosecution's approximate negative, Thus, in a Mississippi case, it was correctly held error, on an indictment against a person for pretending to be a Baptist minister in good standing, to charge the jury "that if the accused made the false representations as stated, and thereby obtained the money, they will find him guilty, unless the accused has shown the truth of these representations." Yet it would have been sound law to have told the jury, that if, from the evidence of the prosecution, it was to be inferred with reasonable certainty that the defendant was not a Baptist minister, the burden was on him, by producing his license, or proving his authority, to show that he was what he thus pretended to be. 1 R. v. Burnsides, Bell C. C. 282; 8 Cox C. C. 370. 2 R. v. Byrne, 10 Cox C. C. 369. 9 Whart. on Ev. §§ 39, 725. As to scienter, see infra, § 1185. As to ignor. ance as a defence, see supra, §§ 84 et seg. 4 See Whart. Crim. Ev. § 321; State v. Wilbourne, 87 N. C. 529. 5 See Whart. Crim. Ev. §§ 321-2, 329, 341. Bowler v. State, 41 Miss. 570. See as to license, infra, §§ 1499 et seq. § 1167. The pretence must be squarely negatived. Thus it is not enough, in order to prove the insolvency of a partnership, to show the private indebtedness of particular partners.2 But pre tence must be squarely negatived. § 1168. While each particular pretence on which conviction is sought must be thus negatived, it is not necessary to negative all the pretences. Any one proved and negatived, if it supplied a preponderating motive, is sufficient to one preconvict.3 § 1169. When the pretence is false, it is no defence that the defendant expected to pay when he should be able.* Sufficient to disprove tence. Expecting negation. to pay no 4. Pretences need not be in Words. 5 1170. The conduct and acts of the party will be sufficient, without any verbal assertion, and words, written or spoken, Conduct is imperfectly setting forth a pretence may be supplemented a sufficient by proof of facts completing the false pretence. Where pretence. a man assumes the name of another to whom money is due on a genuine instrument, this by itself is indictable." Where, as we have already seen, a person at Oxford, who was not a member of the University, went to a shop for the purpose of fraud, wearing a commoner's cap and gown, and obtained goods, this was held within the act, though not a word passed as to his status. And so where the defendant, an employé in a hospital, wrote to a manager for linen, not saying in words that it was for the hospital, but knowingly creating 1 R. v. Kelleher, 14 Cox C. C. 48; State v. Alphin, 84 N. C. 745; State v. Alfred, Ibid. 749. 2 Com. v. Davidson, 1 Cush. 33. • Infra, §§ 1176, 1218; Whart. Crim. Ev. § 131; Com. v. Stevenson, 127 Mass. 446; Webster v. People, 92 N. Y. 422; Beasley v. State, 59 Ala. 20; State v. Vorbeck, 66 Mo. 168. 4 R. v. ter, Ibid. 642. That there is no distinction in this respect between written and unwritten words, see Com. v. Stevenson, 127 Mass. 446. 6 R. v. Cooper, L. R. 2 Q. B. D. 510; 36 L. T. 671; R. v. Powell, 51 L. T. N. S. 713, citing R. v. Giles, supra. As to variance, see infra, § 1214. 7 R. v. Story, R. & R. 81; R. v. BarSee supra, § 1161. See Com. v. Daniels, Naylor, L. R. 1 C. C. 4; 10 nard, 7 C. & P. 784. Cox C. C. 149. 8 Supra, § 1153. 5 R. v. Giles, L. & C. 502; 34 L. J. 50, M. C.; 10 Cox C. C. 44; R. v. Hun 2 Pars. 332. that impression in the manager's mind. The mere passing business paper, also, at its nominal value, is an affirmation that such value is real. But to make silence a pretence, it must be part of conduct or acquiescence involving an affirmation.3 Silence in acquiescing in another's statements may amount to a false pretence. But the silence must be of a character to imply an affirmation of such statements.5 1 R. v. Franklin, 4 F. & F. 94. In an English case determined in 1877, the prisoner, on entering the service of a railway company, signed a book of rules, a copy of which was given to him. One of the rules was, "No servant of the company shall be entitled to claim payment of any wages due to him on leaving the company's service until he shall have delivered up his uniform clothing." On leaving the service he knowingly and fraudulently delivered up, as part of his uniform, to an officer of the company, a great-coat belonging to a fellow-servant, and so obtained the wages due to him. It was ruled that he was properly convicted of obtaining the money by false pretences. R. v. Bull, 36 L. T. (N. S.) 376; 13 Cox C. C. 608. 2 Supra, § 1162. 3 People v. Baker, 96 N. Y. 340. 4 Young v. R., 3 T. R. 98. See Whart. Cr. Ev. § 679; People v. Cline, 44 Mich. 290. The fact that I stand by while B. is lending money to A., who I know is insolvent, will not make me liable to B. unless I do something to corroborate A.'s statements of his solvency. There is no causal relation between my silence and B.'s loan. It is otherwise with my silence when such silence is in any way an affirmation of A.'s statements. But to action, in this As sense, words are not necessary. we have seen, the man who buys goods in a military uniform, which he is not entitled to wear, and who gets these goods on the credit of the uniform, under circumstances which make credit of this kind reasonable, is as responsible as if he said, "I am a military man." On the other hand, suppression of facts by one of the parties to a contract does not impose criminal liability, unless there be an active (as distinguished from a passive) negation of facts. The Rothschilds incurred no criminal liability when they bought large masses of consols on the receipt of private intelligence, which they kept to themselves, of the defeat of Napoleon at Waterloo. I may believe a particular piece of china, which I offer to buy at a farm-house, to be of peculiar antiquarian value, but I am not indictable if I conceal this belief from the owner. If the opposing view were to obtain, no bargain could be closed without exposure to criminal prosecution. We all of us have reasons, personal to ourselves, for every bargain we make. It is difficult for us always to detail these reasons; if we did, it would often expose us to the placing the goods at an exorbitant price. If everything is thus to be told, it would require the man of caution and sagacity, who, before entering 5 Supra, § 211 d. 5. They need not be by the Defendant personally. Pretence § 1171. Where two persons are jointly indicted for obtaining goods by false pretences, made designedly and with intent to defraud, evidence that one of them, with the by one knowledge, approbation, concurrence, and direction of the other, made the false pretences charged, warrants the tence by conviction of both.1 ing on any business, examines all the attainable facts, to deliver to the other contracting party a lecture which, if nothing were suppressed, might occupy days. It would make every one the guardian, in business, of every one else. See Merkel's Criminalistische Abhandlungen, and see 5 South. Law Rev. 374. A mere use of another's error will not make a false pretence, unless there is something done by the deceiving party to confirm such error. Otherwise, a person selling stock in the market, he possessing exclusive information (honorably acquired) of circumstances calculated to make the stock less valuable, would be indictable. In no case, in fact, where there is a sale, is the information of the parties the same; hence, if the concealing of information is a false pretence, there is no sale which would not be open to an indictment for false pretences. Whart. on Cont. §§ 232 et seq. Yet there are, as we have seen, cases in which suppression of a fact by a vendor is an indictable false pretence. A jeweller, for instance, sells a spurious ring as of true metal. He may not say, "This is gold," but he asks for it the price of gold, and from his whole conduct the assertion that it is gold is implied. He is as much in 1 R. v. Moland, 2 Mood. C. C. 271; Com. v. Harley, 7 Met. 462; Cowen v. confederate is pre all. dictable for false pretences as if he had actually said, "This is gold." Suppose, however, that the sale is not of a gold ring, but of a mass of bullion, at a time when specie payments are suspended. If the bullion be sold as gold, but is of base metal, then an indictment lies. But an indictment does not lie because it turns out that the vendor has secret information from which he has reason to conclude that gold will materially fall in value soon after the sale. The distinction is this: By the usage of trade, he who sells an article as of a particular class warrants it to be of that class, so that he becomes responsible if it is spurious; but if the article be genuine, there is no warranty as to its value. In interpreting words when used as false pretences, we must take them in the sense in which they are understood by the person deceived. The deceiver cannot shelter himself by the pretext that the words had a double meaning, and that they might, in one sense, be truthful, though not in the sense in which they were accepted. Ibid. §§ 627 et seq. He who enters into a bargain of any kind implies : I. The existence of all conditions essential to the validity of the transaction on his part, so far as such con People, 14 Ill. 348; Whart. Cr. Ev. § 102. Infra, §§ 1202, 1211-2. An allegation in an indictment that the defendants obtained goods of A., B., and C., partners in trade, by false pretences made to them, is supported by proof that the defendants made the alleged false pretences to their clerk and salesman, who communicated them to B., and that the goods were delivered to the defendants in consequence of those false pretences. ditions are, or ought to be, within his knowledge. Thus, he who calls for the payment of a debt implies the existence of a right on his part to make the demand. He who takes a receipt implies that he made a payment to which the receipt corresponds. II. The existence of analogous conditions in the other party. He, for instance, who buys a particular article implicitly expresses the opinion that the seller is capable of disposing of the article. III. A bargaining party also implies the existence of the conditions on which the other party depended when entering into the transaction. Thus, the manufacturer who delivers to his customers particular articles implies the existence of qualities which go to make up the value of the goods when ordered. The grocer who delivers a package to a purchaser calling for a pound of coffee implies that the package contains the article called for, in the required quantity. Of this kind of implicit assertion Mittermaier gives us the following illustration: "A customer sees an ornament, exquisitely elaborated, set with cut stones; he supposes they are jewels, and offers $100 for the ornament; the vendor sees the error of the purchaser, but does not undeceive him, and takes the money." This is a case of obtaining money on false pretences. The offering of $100 for an ornament which would not be worth one-tenth that sum if the stones were not jewels, is equivalent to a statement by the And it is not necessary, in purchaser that they were jewels, and to a silent admission by the vendor to the same effect. At the same time, it must be remembered that a bare entrance into a particular transaction is not in itself such an affirmation of the opinion of the other contracting party as to amount to a false pretence, even though the transaction be entered into fraudulently. It is possible to take an attitude of absolute "non-committalism" as to such expressions, and it would be absurd to treat a refusal to affirm as an affirmation. A.-to take another of Mittermaier's cases-imagines that he has made a large sum in a speculation in which he was engaged; exhilarated with his supposed good fortune, he pays a debt of 500 florins; the creditor takes the money, knowing at the time that the debtor is in error as to the success of the speculation, but without undeceiving him. Putting aside the fact that obtaining payment of a debt cannot be made, by itself, indictable, there is in this case no assent by the party receiving the money to assumptions by the other party which are essential incidents of the bargain. Whart. on Cont. §§ 232 et seq. 1 Com. v. Harley, 7 Met. 462. An indictment charged K. and P. with falsely pretending to B. that they had a quantity of tobacco, which they proposed to sell, and did sell to him, and thereby obtained money from him. The evidence was that K. and P., acting together, were the chief parties by whom the false pretences had been |