v deceive the public generally, is clearly on this reasoning indictable. More difficult to be received is an English ruling, that it is a cheat at common law for a painter falsely to put the name of an old master on a copy. w Yet this may be accepted on the supposition that the work was skilfully and subtly done, so as to give no notice of falsity, and the fraud was addressed to the public at large, by means of its adoption as a trade by the fabricator and of the fraudulent pictures thrown by him generally on the market. (h.) But not so of Cheats where the Falsity is not Latent, and the Fraud not addressed to the Public at Large; e. g. False Warranties, reading False Papers to an Individual and obtaining his Signature, and False Pretences to an Individual. § 2062. If, however, a cheat is not of such a general character as to address the public, and is not executed by means of latent false devices, it is not indictable at common law, x for, as has been seen, if, without false weights, a party sells to another a less quantity than he pretends to sell, it is no public offence. y So falsely warranting an unsound horse to be sound, knowing it to be otherwise, is no offence, unless there be a conspiracy to defraud, and then an indictment might stand for a conspiracy.z Nor is it, it seems, an offence, to cause an illiterate person to execute a deed to his prejudice, by reading it over to him in words different from those in which it is written, unless there be a conspiracy. a Thus, where an indictment was as follows: “The jurors, &c., that Moses Justice, being an evil-disposed person, and designing fraudulently to cheat and impoverish one Anne Fox, did become the security of the said Anne Fox, in a bond then and there executed by her for the faithful performance, v See 2 East P. C. 820; Wh. Con. of L. § 326. w R. v. Closs, Dears. & B. C. C. 460. x State v. Stroll, 1 Richardson, 244. U. S. v. Porter, 2 Cranch C. C. R. 60; U. S. v. Hale, 4 Ibid. 83; U. S. v. Watkins, 3 Ibid. 441; Ranney v. People, 8 E. P. Smith (22 N. Y.), 413. y R. v. Young, 3 T. R. 104; Hartman v. Com. 5 Barr, 60; State v. Justice, 2 Dev. 199; R. v. Eagleton, 33 Eng. Law & Eq. 540; 6 Cox C. C. 559. z R. v. Pywell, 1 Stark. 402; and see R. v. Codrington, 1 C. & P. 661. a See 2 East P. C. c. 18, s. 5, p. 823; 1 Hawk. c. 71, s. 1; and see R. v. Paris, 1 Sid. 431; Wright v. People, 1 Breese, 66; Com. v. Sankey, 10 Harris, 390; per contra, Hill v. State, 1 Yerger, 76; State v. M'Leran, 1 Aikens, 311. See comments on these cases, 1 Bennett & H. Lead. Cas. 16. &c. And the jurors, &c., that the said Moses Justice, afterwards, to wit, on, &c., did write, and cause to be written, a certain deed of bargain and sale for her, the said Anne, to him, the said Moses Justice, purporting to sell and convey a certain tract of land, belonging to her the said Anne, situate, &c., to him, the said Moses Justice, in fee simple, &c., and also purporting to be in consideration of the sum of three hundred dollars, then and there well and truly paid by him, the said Moses Justice, to her, the said Anne Fox. And the jurors, &c., that the said Moses Justice did then and there fraudulently, &c., pretend to the said Anne, that the said deed of bargain and sale was nothing but a receipt to him acknowledging that he was the security of the said Anne, &c., by means of which false, &c., the said Moses Justice did fraudulently, &c., procure the said Anne to sign, seal, and deliver the said deed of bargain and sale to him, the said Moses Justice, for the said tract of land, containing, &c., and of the value, &c.; and so the jurors, &c., that the said Moses Justice, her, the said Anne, of the land, &c., of the value, &c., fraudulently, &c., did cheat, deceive, and defraud, to the great damage, &c., and against the peace and dignity of the state: it was held an indictable offence was not charged, there having been no false token of deceitful practice affecting the community at large, though undoubtedly a gross fraud had been committed. b § 2063. Where two persons pretend, the one to be a merchant, the other a broker, and, as such, bartered bad wine for hats, it was considered that they were guilty of the offence of a conspiracy to cheat, but not of the offence of cheating. c It has been held, however, indictable, to get a person to lay money on a race, and to prevail with the party to run booty; yet the ground of the decision appears to have been that the offence amounted to conspiracy. d § 2064. The deceitful receiving of money from one man to the use of another, upon a false pretence of having a message and order to that purpose, is not an offence at common law in a private transaction, because it is accompanied with no manner of artful contrivance, but only depends on a bare naked lie; and it is said to be needless to provide severe laws for such mischief, b State v. Justice, 2 Dev. 199. 1184; 3 Ld. Raym. 325; 2 Burr. 1129; 2 East P. C. 824. e R. v. Mackarty, 2 Ld. Raym. 1179, d 6 Mod. 42, c. against which common prudence and caution may be a sufficient security. On the same principle it is not an indictable offence to get possession of a note, under pretence of wishing to look at it, and carrying it away, and refusing to return it; ƒ nor to pretend to have money ready to pay a debt, and thereby obtaining a receipt in discharge of the debt, without paying the money;g nor to obtain, in violation of an agreement, and by false pretences, possession of a deed lodged in a third person's hands as an escrow; h nor to obtain goods on credit, by falsely pretending to be in trade, and to keep a grocery shop, and giving a note for the goods in a fictitious name; i nor to put a stone in a pound of butter so as to increase its weight;j nor to obtain money by falsely representing a spurious note of hand to be genuine. k § 2065. Where a party obtained money of another, by pretending to come by the command of a third person to demand a debt, or the like, in his name, showing no voucher or token for his authority, it was holden not indictable, for it was the party's own fault to trust him; the language of the court being: "We are not to indict one man for making a fool of another; let him bring his actions." It seems the same doctrine will hold good, though the defendant made use of an apparent token, which in reality is, upon the very face of it, of no more credit than his own assertion, and is not of a public nature. m Where an indictment charged that the defendant, deceitfully intending, by divers crafty means and subtle devices, to obtain possession of certain lottery tickets, the property of A., pretended that he wanted to purchase, and delivered to A. a fictitious order for the payment of money, purporting to be a draft upon a banker for the amount, which he knew he had no authority to draw, and would not be paid, by which he obtained the tickets, and de e 1 Hawk. c. 71, s 2; 2 East P. C. 818. f People v. Miller, 14 Johns. 371. g People v. Babcock, 7 Johns. 701. h Com. v. Hearsey, 1 Mass. 137; U. S. v. Carico, 2 Cranch C. C. 760. i Com. v. Warren, 6 Mass. 72. See Com. v. Speer, 2 Virg. Cases, 65 ; 1 R. v. Jones, 2 Ld. Raym. 1013; 1 m 2 East P. C. c. 18, s. 2; 2 Russ. j Wiesbach v. Trone, 2 Watts & C. & M. 3d ed. 283. See State e. Serg. 408. Sumner, 10 Vt. 587; People v. Mil k State v. Patillo, 4 Hawks, 348. ler, 14 Johns. 371. frauded the prosecutor of the value; and it being objected in arrest of judgment, that the defendant was not charged with having used any false token to accomplish the deceit; for that the banker's check, drawn by the defendant himself, entitled him to no more credit than his bare assertion that the money would be paid; the objection was held good, and judgment arrested. n In short the doctrine is, that at common law no indictment lies for an individual cheat, against which common prudence would have guarded. o (i.) Reasons for the Distinction between Public and Private Cheats. § 2066. The reasons for this distinction were well put in a case where the defendant was convicted of selling beer short of the due and just measure, to wit, sixteen gallons as and for eighteen. Upon a motion in arrest of judgment, it was said by the court: "This is only an inconvenience and injury to a private person, arising from that private person's own negligence and carelessness in not measuring the liquor when he received it, to see whether it held the just measure or not. Offences that are indictable must be such as affect the public, as if a man use false weights and measures and sell by them to all or to any of his customers, or use them in the general course of his dealing; so if there be any conspiracy to cheat, for these are deceptions that common care and prudence are not sufficient to guard against. These are much more than private injuries; they are public offences. But in the present case it is a mere private imposition or deception. No false weights or measures are used; no conspiracy; only an imposition on the person he was dealing with, in delivering him a less quantity instead of a greater, which the other carelessly accepted. It is only a non-performance of contract; for which non-performance the other may bring his action. So the selling an unsound horse for a sound one is not indictable. The buyer should be more upon his guard; and the distinction which is laid down as proper to be attended to in all cases of this kind is this: that in such impositions or deceits, where common prudence may guard persons against their suffering from them, the offence is not indictable; but n R. v. Lara, 6 T. R. 565; and see R. v. Flint, R. & R. 460. o 2 Russ. on Cr. 6th Am. ed. 286. where false weights and measures are used, or false tokens produced, or such methods taken to cheat and deceive, as people cannot by any ordinary care or prudence be guarded against, then it is an offence indictable. "p The same position has since been repeatedly reaffirmed. q 3. Indictment. § 2067. (a.) Persons cheated. It has been said in Tennessee, under a statute, that an indictment for selling by false weights must specify the person to whom the same was made. r But this, as a common law rule, is not only inconsistent with authority, s but with sound reason, if it means anything more than that when an overt act of cheating has been executed, the person cheated is to be named, or averred to be unknown. For it is the essence of the common law cheat that it should be addressed to the public generally. The true course is to aver that the cheat was devised to defraud the public generally, and then to aver that it was operative in the particular case, t supposing that the cheat was consummated. u (b.) Mode of Cheating. § 2068. Where the fraud has been effected by false tokens, and the offence is so charged, the false tokens must be specified and set forth, and it must appear that by them the goods were obtained. v It is not sufficient to allege generally that the cheat was effected by certain false tokens or false pretences. w But it does not seem to be necessary to describe them more particularly than they were shown or described to the party at the time, and in consequence of which he was imposed upon; and it is also said not to be necessary to make any express allegation that the facts set forth show a false token. To charge the defendant simply as "a common cheat" is clearly insufficient. y p R. v. Wheatly, 1 Bla. Rep. 273; 2 Bur. 1125, S. C. q Ante, § 2057, 2058, &c. r State v. Woodson, 51 Humph. R. 55. s R. ". Gibbs, 8 Mod. 58. t R. v. Closs, Dears. & B. C. C. 460. u See State v. Corbett, 1 Jones N. |