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measure and the standard it professes to represent. FRAUD AND Second, it must have been used as true in the knowledge of its defect. (This will be presumed against the user).

Third, except in the case of extensive frauds having other elements of criminality, the deviation must be from a legal standard, not from a weight or measure that is used by custom contrary to the legal standard (1). In the giving of false weights such acts are included as selling at an under-weight loaves of bread or the like, which have a fixed weight prescribed by public authority (2). Such cases are usually prosecuted summarily and for fines under special statutes, but any outrageous fraud of this sort may be prosecuted at common law and for high pains. A strange case has occurred in practice, and illustrates how serious fraud may be committed by such means. Two

persons who were entitled to a repayment from the revenue on imported goods on their being again exported, obtained access to the custom-house at night, and removed the custom-house weights, substituting lighter ones in their place (3). It depends on the special circumstances of each case How far must

fraud proceed. how far the false action must proceed, in order to constitute a crime (4). "Attempting to commit fraud ” Attempt irreleis an irrelevant charge (5). But it is not by any lute success not means necessary that the accused should actually have succeeded in making gain by his fraud. It is difficult to lay down practical rules upon the subject. Perhaps the division of the modes of cheating intoSpoken ; Written; and Practical ; may conduce to clearness.

Vant, but abso

essential.

1 Hume i. 177, 178, case of Dunbar and Forsyth there.

2 Hume i. 178, case of Craig there.

3 Hume i. 173, case of Jack and Ewing there.

4 Geo. Kippen, H.C., Nov. 6th

1849; J. Shaw 276 (Lord Mon-
crieff's opinion).

6 Jas. Shepherd, Perth, April
26th 1842; 1 Broun 325 and Bell's
Notes 2. See also Rob. Gunn,
Aberdeen, April 23d 1832; Bell's
Notes 2 and 5 Deas and Anderson .

FRAUD AND
CHEATING

False verbal

complete crime.

Cated writing suficient.

First, where a person makes a verbal statement

which is false to obtain some advantage, he cannot be statement must indicted criminally, unless some event has followed,

manifesting that his falsehood has practically resulted in the lieges being imposed upon, as by his receiving money, or goods, or documents.

With the exception of the case of malicious accusation of a crime, the verbal statement of falsehood is not enough to constitute a criminal offence. Where it is expedient to make such acts criminal, as in the case of persons pretending to make discoveries of lost articles by sorcery or witch

craft, special statutory enactment is necessary. Where writings Second, there are many cases in which documents used, question one of circum- setting forth falsehood are used, in which it depends

on circumstances whether the fraud is completed by

the use, or whether something more is necessary. If Uttering fabric a fabricated document, such as a certificate written in

the third person (thus : “Mr Brown begs to recommend the bearer," &c.) be uttered, the crime is complete. The offender has put the fabrication into

use (1). And even where the writing is genuine, the relating false- uttering may be sufficient, as in the cases already

noticed of imaginary seisins or executions, or certificates of banns, or of marriages, which never took place, or of successful vaccination (2). On the other hand, if a person write and send a genuine private document, such as a begging letter, although full of falsehoods as to the state of his health or distress in his family, or similar matters, this stands in much the same position as a verbal falsehood, and seems not to be indictable, unless a result follows, such as money being despatched to him, or the like, in consequence of the falsehood. Such a letter is not a fabrication. It is a genuine writing, although containing untrue statements.

Same holds of official document

hoods.

But uttering genuine private document not enough unless result follow.

1 Dan. Taylor, H.C., May 16th 1853; 1 Irv. 230 and 25 S. J. 403.

2 Thomas B. Webster, Inverness, Sept. 24th 1872; 2 Couper 339 and 45 S. J. 3 and 10 S. L. R. 16.

CHEATING.

Practical

The cases

when article

put in competition,-is crime complete when

Third, practical cheating seems to divide itself into FRAUD AND two classes ; first, where an article is made over to others as being that which it is not, for the purpose of cheating. obtaining an advantage ; and, second, where a fraudulent act is done to the defeat, or with a view to the defeat of the rights or privileges of others. already noticed of supplying adulterated oatmeal (1), and putting cattle with inflated skins and false horns - into a competition for prizes (2), are instances of practical cheating of the first kind. In both these cases the Crime complete contention that the crime was not completed, because uttered. payment had not been made, was overruled. In the latter case, prizes had been awarded, but it is thought Disguised cattle that the crime was completed when the cattle were entered in the competition. They were handed over cattle entered ? to the competition judges after an act of fabrication, which made them appear to be that which they were not, and they were as much the corporeal embodiment of a fraud, as was the adulterated oatmeal in the other case when it was shipped. Both cases partake of the character of uttering, which is complete when the article is placed in another's hands, professing in its own corpus to be that which it is not.

The prin- Undisguised ciple may be illustrated by a somewhat similar case, sale with a false where the animals did not themselves embody the fraud. Unsound horses were put up to auction as belonging to A., a farmer, with the assertion that he had worked them for a year previously, and that they were sound and good workers, and only parted with because the owner was leaving the country. Upon the faith of these assertions they were bought. A. was not a farmer, and the other particulars were untrue (3). Here the fraud was not complete till the horses were bought. There was no fabrication, but

article put up for

it

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1 Alex. Banatyne, Glasgow, Sept. 3 Hood v. Young, H.C., June 29th 1847 ; Ark. 361.

10th 1853 ; 1 Irv. 236 and 25 S.J. 2 Jas. Paton, Ayr, Sept. 220 446. 1858 ; 3 Irv. 208.

G

FRAUD AND
CHEATING.

In vitiation of documents, or

only the assertion of falsehoods.

The horses were, so to speak, genuine, and buyers had no lie presented to them by the animals. If a person had come to the sale, and without any knowledge of the false statements had bought the animals, there could have been no fraud as regarded him, because he bought, relying on his own inspection. But in the case of the inflated cattle, all inspection with a view to forming a correct personal opinion was rendered misleading. The cheat consisted in preventing inspection being a sound basis for judgment.

The second class of offences by practical cheating, concealment by where the intent is to defeat or obstruct the rights or insolvents, overt act with felonious privileges of others, embraces all those cases of vitia

tion or destruction of deeds, concealment by insolvent persons, or the like, some of which have been already referred to. The overt act of vitiation or destruction of a document, or of concealment with intent to defraud, by a person who is insolvent (1), combined with the intent to defraud, constitutes a complete offence in itself. And where the overt act is “for the pur

pose of obstructing or defeating the course of justice," the same rule holds (2).

There are many other fraudulent acts which, from their peculiar character, or from their being intimately connected with offences belonging to other classes, must be treated of separately, and which, to prevent repetition, have not been mentioned; or, if mentioned, have not been fully treated of in this chapter (3).

It is not usual to state any aggravations in ordinary cases of forgery or fraud, except that of previous convic

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AGGRAVATIONS.

1849 ;

1 Richard F. Dick and Alex. Lawrie, H.C., July 16th 1832; 4 S.J. 594 and 5 Deas and Anderson 513.--Chas. MʻIntyre, Inverness, Sept. 14th 1837; 1 Swin. 536 and Bell's Notes 64.-Duffus v. Whyte, H.C., Jan. 27th 1856; 1 S.L.R. 124.

2 Geo. Kippen, H.C., Nov. 6th

J. Shaw 276. 3 Such offences are fraudulent bankruptcy – fraudulent concealments by insolvents-fire-raising or sinking ships to defraud insurersfalsehood in registrations of births, marriages, and deaths.

tion (1).

Where other criminal offences are involved AGGRAVATIONS. in the act charged, these are generally made part of the substantive charge, and several such cases will be noticed under other heads. It may suffice here to observe, that where there is a previous conviction of forgery, or of falsehood, fraud, and wilful imposition, it is not necessary that it have been a forgery of a precisely similar document, or an act of falsehood, fraud, and wilful imposition of exactly the same kind. A previous conviction of uttering "any forged writing" may be used where the charge is one of uttering some writing described, such as a bill of exchange (2). In the same way, in a case of falsehood, fraud, and wilful imposition, a previous conviction of falsehood and fraud may be used (3).

The punishment of forgery, in the case of all im- PUNISHMENT. portant documents, such as testamentary writings and the like, is penal servitude (4). Minor forgeries, and all other frauds, are punished by penal servitude or imprisonment.

POSSESSION OF BANK NOTE OR STAMP
FORGERIES OR INSTRUMENTS.

It is impossible to enumerate the cases in which, by POSSESSION OF statute, the forging, or making instruments for forging. bank notes, or excise or post stamps, or the like, or

BANK NOTE OR
STAMP FORGERIES
OR INSTRUMENTS.

1 In the case of falsehood, fraud, and wilful imposition, the question was once raised whether previous conviction was a competent aggravation.-John or Alex. Campbell, H.C., June 3rd 1822; Shaw 66.

2 Samuel Deans, Sept. 1839; Bell's Notes 33.

3 Rob. Gunn, Aberdeen, April 1832; Bell's Notes 33.-See also Elizabeth M'Walter or Murray, H.C., Feb. 2nd 1852; J. Shaw 552

and 24 S.J. 208 and 1 Stuart 359.

4 Act 7 Will. IV. and 1 Vict. c. 84, as amended by 20 and 21 Vict. c. 3, and 27 and 28 Vict. c. 47. There are many Acts of Parliament prescribing special punishments for certain forgeries, and uttering of false certificates, and the like. It would occupy too much space to enumerate them. In Scotland such offences would be prosecuted at common law in most cases.

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