By the 24 & 25 Vict. c. 134, s. 221 (d), a bankrupt who does, or omits to do any of the acts or things following, with intent to defraud or defeat the rights of his creditors, is guilty of a misdemeanor, and liable at the discretion of the court before which he may be convicted, to imprisonment for not more than three years.*

FRAUDULENT BANKRUPTCY.

[* 184] * 1. If he do not upon the day limited for his surrender, and before three o'clock of such day, or at the hour and upon the day allowed him for finishing his examination, after notice thereof in writing served upon him personally or left at his usual or last known place of abode or business, and after due notice in the Gazette, surrender himself to the court (having no lawful impediment allowed by the court), and sign or subscribe such surrender, and submit to be examined before such court from time to time.

2. If he do not, upon his examination, fully and truly discover to the best

he, being a trader, pawns, pledges, or disposes of, otherwise than in the ordinary way of his trade, any property which he has obtained on credit and has not paid for, unless the jury is satisfied that he had no intent to defraud:

16. If he is guilty of any false representation or other fraud for the purpose of obtaining the consent of his creditors or any of them to any agreement with reference to his affairs or his bankruptcy or liquidation.

Sect. 12. That if any person who is adjudged a bankrupt or has his affairs liquidated by arrangements after the presentation of a bankruptcy petition against him or the commencement of the liquidation, or within four months before, such presentation or commencement, quits England and takes with him, or attempts or makes preparation for quitting England and for taking with him, any part of his property to the amount of £20 or upwards, which ought by law to be divided amongst his creditors, he shall (unless the jury is satisfied that he had no intent to defraud) be guilty of felony, punishable with imprisonment for a time not exceeding two years, with or without hard labour.

Sect. 13. That any person shall in each of the cases following be deemed guilty of a misdemeanor, and on conviction thereof shall be liable to be imprisoned for any term not exceeding one year, with or without hard labour; that is to say,

(1.) If in incurring any debt or liability he has obtained credit under false pretences, or by means of any other fraud:

(2.) If he has with intent to defraud his creditors, or any of them, made or caused to be made any gift, delivery, or transfer of or any charge on his property:

(3.) If he has, with intent to defraud his creditors, concealed or removed any part of his property since or within two months before the date of any unsatisfied judgment or order for payment of money obtained against him.

Sect. 14. That if any creditor in any bankruptcy or liquidation by arrangement or composition with creditors in pursuance of the Bankruptcy Act, 1869, wilfully and with intent to defraud makes any false claim, or any proof, declaration, or statement of account which is untrue in any material particular, he shall be guilty of a misdemeanor, punishable with imprisonment not exceeding one year, with or without hard labour.

Sect. 15. That where a debtor makes any arrangement or composition with his creditors under the provisions of the Bankruptcy Act, 1869, he shall remain liable for the or increased, or whereof before the date of unpaid balance of any debt which he incurred the arrangement or composition he obtained forbearance, by any fraud, provided the defrauded creditor has not assented to the by proving his debt and accepting dividends. arrangement or composition otherwise than

Sect. 16. That where a trustee in any bankruptcy reports to any court exercising jurisdiction in bankruptcy that in his opinion a bankrupt has been guilty of any offence upon the representation of any creditor or under this act, or where the court is satisfied member of the committee of inspection that there is ground to believe that the bankrupt has been guilty of any offence under this act, the court shall, if it appears to the court that there is a reasonable probability that the to prosecute the bankrupt for such offence. bankrupt may be convicted, order the trustee

Sect. 17. That where the prosecution of the bankrupt under this act is ordered by any court, then, on the production of the order of shall be allowed, paid, and borne as expenses the court, the expenses of the prosecution of prosecutions for felony are allowed, paid, and borne.

Sect. 18. That every such misdemeanor as aforesaid shall be deemed to be an offence within and subject to the provisions of the stat. 22 & 23 Vict. c. 17, intituled, "An Act to prevent vexatious indictments for certain misdemeanors;" and when any person is charged with any such offence before any shall take into consideration any evidence justice or justices, such justice or justices adduced before him or them tending to show that the act charged was not committed with a guilty intent.

It is by the 32 & 33 Vict. c. 62, further enacted,

Sec. 20. That so much of the stat. 5 & 6 tices in general and quarter sessions of the Vict. c. 38, "to define the jurisdiction of juspeace," as excludes from the jurisdiction of or adjournments thereof the trial of persons justices and recorders at sessions of the peace for offences against any provision of the laws relating to bankrupts, is hereby repealed as from the passing of this act; and any offence the jurisdiction of such justices and reunder this act shall be deemed to be within corders.

of his knowledge and belief all his property real and personal, inclusive of his rights and credits, and how, and to whom, and for what consideration, and when he disposed of, assigned or transferred any part thereof, except such part as may have been really bond fide before sold or disposed of in the way of his trade or business, if any, or laid out in the crdinary expense of his family, or does not deliver up to the court or dispose, as the court directs, of all such part thereof as is in his possession, custody, or power, except the necessary wearing apparel of himself, his wife, and children, and deliver up to the court all books, papers, and writings in his possession, custody, or power relating to his property, or affairs.

3. If, after adjudication, or within sixty days prior to adjudication, with intent to defraud his creditors, the bankrupt removes, conceals, or embezzles any part of his property to the value of 107. or upwards.

4. If, in case of any person having to the knowledge or belief of the bankrupt, proved a false debt under the bankruptcy, he fail to disclose the same to his assignees within one month after coming to the knowledge or belief thereof. 5. If the bankrupt, with intent to defraud, wilfully and fraudulently omits from his schedule any effects or property whatsoever.

*6. If the bankrupt, after the filing of the petition for adjudication, [*185] with intent to conceal the state of his affairs or to defeat the object of the law of bankruptcy, conceals, prevents, or withholds the production of any book, deed, paper, or writing relating to his property, dealings, or affairs. 7. If the bankrupt, after the filing of the petition for adjudication, or within three months next before adjudication, with intent to conceal the state of his affairs, or to defeat the objects of the law of bankruptcy, parts with, conceals, destroys, alters, mutilates, or falsifies, or causes to be concealed, destroyed, altered, mutilated, or falsified any book, paper, writing, or security, or document relating to his property, trade, dealings, or affairs, or makes or is privy to the making of any false or fraudulent entry or statement in or omission from any book, paper, document, or writing relating thereto.

8. If, within the like time, the bankrupt, knowing that he is unable to meet his engagements, fraudulently, and with intent to diminish the sum to be divided amongst the general body of his creditors, have made away with, mortgaged, encumbered, or charged any part of his property, or if, after adjudication, he conceals from the court or his assignee any debt due to or from him.

9. If, being a trader, the bankrupt shall under his bankruptcy, or at any meeting of his creditors, within three months next preceding the filing of the petition for adjudication, attempt to account for any of his property by fictitious losses or expenses.

10. If, being a trader, the bankrupt has within three months next before the filing of the petition for adjudication, under the false colour and pretence of carrying on business and dealing in the ordinary course of trade, obtained on credit from any person goods or chattels with intent to defraud.

[* 186]

11. If, being a trader, the bankrupt has, with intent to defraud his creditors, within three months next* before the filing of the petition for adjudication, pawned, pledged, or disposed of otherwise than by bona fide transactions in the ordinary way of his trade, any of his goods or chattels which have been obtained on credit and remain unpaid for.

III. Cheating.

III. Cheating is another offence, more immediately against public trade; as that cannot be carried on without a punctilious regard to common honesty, and faith between man and man. Hither therefore may be referred that prodigious multitude of statutes, which have been made to restrain and punish deceits in particular trades, and which are enumerated by Hawkins and Burn, but are chiefly of use among traders themselves (e).

Fraud, when levelled at the public, is indictable at common law (f); and to this head of cheating is referable in a peculiar manner the offence of selling by false weights and measures; the standard of which fell under our consideration in a former volume (g).

Forgery also is indictable at common law (h); ex. gr., the uttering of a forged testimonial to character, knowing it to be forged (i). And if a person in the course of his trade or business, openly and publicly carried on, put a false mark or token upon an article so as to pass it off as genuine when in fact it is spurious, and the article is sold and money is obtained by means of that false mark or token, that will constitute a cheat at common law (k). *For the [*187] repression of this latter form of fraud, viz., the fraudulent marking of merchandise, has recently been enacted the statute 25 & 26 Vict. c. 88, whereby is declared guilty of a misdemeanor (1):—

1. Every person who, with intent to defraud (m), or to enable another to defraud, any person, shall forge or counterfeit (n), or cause or procure to be forged or counterfeited, any trade-mark (0), or shall apply, or cause to be applied, any trade-mark to any article not being the manufacture, production, or merchandise of any person denoted or intended to be denoted by such trade-mark, or not being the manufacture, production, or merchandise of any person whose trade-mark shall be so forged or counterfeited, or shall apply, or cause to be applied, any trade-mark to any chattel, not being the particular or

(i) Reg. v. Sharman, Dearsl. 285; Reg. v. Moah, Dearsl. & B. 550. See 32 Geo. 3, c. 56. (k) Reg. v. Closs, Dearsl. & B. 460; Reg. v. Smith, Id. 566. The general punishment for fraud indictable at common law is fine and imprisonment, to which hard labour may be added. 1 Hawk. P. C. 188; 14 & 15 Vict. c. 100, s. 29.

(4) Punishment: imprisonment for not more than two years, with or without hard labour, or fine, or both by imprisonment with or without hard labour and fine, and also imprisonment until the fine (if any) shall have been paid and satisfied. S. 14.

Also, by ss. 2 and 3, a forfeiture of the chattel to which the trade-mark has been fraudulently applied is incurred by the mis

demeanant. And by s. 4, the vendor of a chattel which he knows to bear a fraudulent trade-mark is liable to a penalty.

(m) By s. 12 an intention to defraud any particular person need not be alleged in the indictment, or proved; but it shall be sufficient to allege and prove, with respect to every such misdemeanor and offence, that the person accused did the act charged with intent to defraud, or with intent to enable some other person to defraud.

(n) By s. 5, every addition to and alteration or imitation of a trade-mark made with intent to defraud, shall be deemed to be a forged and counterfeit trade-mark.

(0) By s. 1, the expression "trade-mark" is defined to include any name, label, or mark lawfully used by any person to denote a chattel to be of the manufacture, production, or merchandise of such person, or to be an article of any particular description made or sold by such person, and shall also include any name, mark, or sign which in pursuance of any statute relating to registered designs is to be put upon or attached to any chattel or article during the existence of any copyright or other sole right acquired under the provisions of such statute.

[*188]

peculiar description of manufacture, production, or merchandise denoted or intended to be denoted by such trade-mark (p).

2. Every person who, with intent to defraud, or to enable another to defraud, shall apply or cause to be applied any trade-mark to any vessel, case, wrapper, label, or other thing in, or with which any article shall be intended to be sold, or intended for any purpose of trade or manufacture (q).

3. Every person who aids, abets, counsels, or procures the commission of any offence which is by the above act made a misdemeanor (r).

Besides the foregoing statute, which has been directed against an ordinary species of fraud productive of pernicious consequences to trade, other fraudulent practices have from time to time been singled out by the legislature for repression by enactments, of which the more important are below collected (8). (681)

IV. Monopolies.

IV. A monopoly is a licence or privilege allowed by the crown for the sole buying and selling, making, working, or using of anything whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before (t). The granting of exclusive privileges had been carried to an enormous height during the reign of Queen Elizabeth: and this abuse was complained of by Sir Edward Coke (u), [* 189] in the beginning of the reign of king James the First: but was in great measure remedied by statute 21 Jac. 1, c. 3, which declared such monopolies, except as to patents, to be contrary to law and void (x).

(p) S. 2.
(9) S. 3.
(r) S. 13.

*

(s) See the Merchant Shipping Acts, 17 & 18 Vict. c. 104; 19 & 20 Vict. c. 41, s. 6; 14 & 15 Vict. c. 102, s. 55. As to the prevention of frauds in the hop trade, see 29 Vict. c. 37, amending 54 Geo. 3, c. 123; in the hay and straw trade, 19 & 20 Vict. c. 114.

By the 30 & 31 Vict. c. 29, s. 1, a person

wilfully inserting in any contract for the sale or purchase of shares in a joint-stock banking company, any false entry of the numbers of such shares, or of the name of the person registered as proprietor thereof, shall be guilty of a misdemeanor, and punishable accordingly.

(t) 1 Hawk. P. C. 235.
(u) 3 Inst. 181.
(x) Ante, vol. ii.

(681) To constitute a cheat or fraud an indictable offense at common law, it must be such a fraud as would affect the public; such a deception as common prudence cannot guard against; as by using false weights and measures, or false tokens, or where there is a conspiracy to cheat. People v. Babcock, 7 Johns. 201. And see State v. Stroll, 1 Rich. (S. C.) 244; Hill v. State, 1 Yerg. (Tenn.) 76; Com. v. Morse, 2 Mass. 139; Com. v. Warren, 6 id. 72; Lambert v. People, 9 Cow. 588; People v. Stone, 9 Wend. 187; State v. Patillo, 4 Hawks. (N. C.) 348; Cross v. Peters, 1 Greenl. (Me.) 387.

To sell provisions by short measure, where no false weight or token is used, is not an offense at common law. State v. Justice, 2 Dev. (N. C.) 149; Hartmann v. Com., 5 Barr (Penn.), 60. So, where one by lying only, without using any false weights, measures, or tokens, defrauds another of his property, the injury is a civil one, and an indictment cannot be supported as for a public offense. Com. v. Warren, 6 Mass. 72; see Hartmann v. Com., 5 Barr (Penn.), 60; State v. Sumner, 10 Vt. 587; People v. Miller, 14 Johns. 371; People v. Babcock, 7 id. 201; State v. Delyon, 1 Bay (S. C.), 353; Com. v. Hearsey, 1 Mass. 137.

Receiving grain on storage for hire, or buying grain, by false weights, is an indictable cheat at common law. People v. Fish, 4 Park. 206. So, cheats by means of false news, see State v. Williams, 2 Tenn. 108; false notes, Com. v. Boynton, 2 Mass. 77; State v. Stroll, 1 Rich. (S. C.) 244; Lewis v. Com., 2 Serg. & R. (Penn.) 551; Com. v. Speer, 2 Va. Cas. 65; false dice, or false trade-marks, see Res. v. Teischer, 1 Dall. 335; People v. Gates, 13 Wend. 311, 319, are all indictable at the common law.

A cheat, being a misdemeanor at common law, is punishable by fine and imprisonment, or either, at the discretion of the court. See State v. Roberts, 1 Hayw. (N. C.) 176; United States v. Coolidge, 1 Gallis. 488, 493.