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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
(d) See the remarks upon the various clauses 8. If after the presentation of a bankruptcy of this section, Griffith and Holmes' Bank- petition against him or the commencement ruptcy, ii. pp. 1092–9.
is to say,
of the liquidation he prevents the production * As from Jan. 1, 1870, the stat. 24 & 25 of any book, document, paper, or writing Vict. c. 134, is repealed (by 32 & 33 Vict. c. affecting or relating to his property or affairs, 83), and the punishment of fraudulent debt- unless the jury satisfied that he had no ors will be such as is prescribed by the 32 & intent to conceal the state of his affairs or to 33 Vict. c. 62, enacting as under:
defeat the law: SECT. 11. That any person adjudged bank- 9. If after the presentation of a bankruptcy rupt, and any person whose affairs are liqui- petition against him or the commencement dated by arrangement in pursuance of the of the liquidativn, or within four months Bankruptcy Act, 1869, shall, in each of the next before such presentation or commencecases following, be deemed guilty of a mis- ment, he conceals, destroys, mutilates, or demeanor, and, on conviction thereof, be liable falsifies, or is privy to the concealment, deto be imprisoned for any time not exceeding struction, mutilation, or falsification of any two years, with or without hard labour; that book or document affecting or relating to his
property or affairs, unless the jury is satisfied 1. If he does not, to the best of his knowl. that he had no intent to conceal the state of edge and belief, fully and truly discover to his affairs or to defeat the law: the trustee administering his estate for the 10. If after the presentation of a banko benefit of his creditors all his property, real ruptcy petition against him or the commenceand personal, and how, and to whom, and for ment of the liquidation, or within four what consideration, and when he disposed of months next before such presentation or any part thereof, except such part as las commencement, he makes, or is privy to the been disposed of in the ordinary way of his making of any false entry in any book or trade (if any), or laid out in the ordinary ex. document affecting or relating to his property pense of his family, unless the jury is satis- or atfairs, unless the jury is satisfied that he fied that he had no intent to defraud:
had no intent to conceal the state of his 2. If he does not deliver up to such trustee, affairs or to defeat the law : or as he directs, all such parts of his real and 11. If after the presentation of a bankpersonal property as is in his custody or un- ruptcy petition against him or the comder his control, and which he is required by mencement of the liquidation, or within law to deliver up, unless the jury is satisfied four months next before such presentation that he had no intent to defraud :
or commencement, he fraudulently parts 3. If he does not deliver up to such trustee, with, alters, or makes any omission, or is or as he directs, all books, documents, papers, privy to the fraudulently parting with, alter. and writings in his custody or under his con- ing or making any omission in any docutrol relating to his property or affairs, unless ment affecting or relating to his property or the jury is satisfied that he had no intent to affairs : defraud :
12. If after the presentation of a bank4. If after the presentation of a bankruptcy ruptcy petition against him or the commencepetition against him or the commencement of ment of the liquidation, or at any meeting of the liquidation, or within four months next his creditors within four months next before before such presentation or commencement, such presentation or commencement, he he conceals any part of his property to the attempts to account for any part of his propvalue of ten pounds or upwards, or conceals erty by fictitious losses or expenses : any debt due to or from him, unless the jury 13. If within four months next before the is satisfied that he had no intent to defraud: presentation of a bankruptcy petition against
5. If after the presentation of a bankruptcy him or the commencement of the liquidapetition against him or the commencement of tion, he, by any false representation or other the liquidation, or within four months next fraud, has obtained any property on credit before such presentation or commencement, and has not paid for the same: he fraudulently removes any part of his
14. If within four months next before the property of the value of ten pounds or up- presentation of a bankruptcy petition against wards:
him or the commencement of the liquida. 6. If he makes any material omission in tion, he, being a trader, obtains, under the any statement relating to his affairs, unless false pretence of carrying on business and the jury is satisfied that he had no intent to dealing in the ordinary way of his trade, any defraud :
property on credit and has not paid for the 7. If, knowing or believing that a false same, unless the jury is satisfied that he had debt has been proved by any person under no intent to defraud : the bankruptcy or liquidation, he fail for the 15. If within four months next before the period of a month to inform such trustee as presentation of a bankruptcy petition against a foresaid thereof:
him, or the commencement of the liquidation,
* 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
[ * 184 ] 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 dis- Sect. 15. That where a debtor makes any poses of, otherwise than in the ordinary way arrangement or composition with his crediof his trade, any property which he has ob- tors under the provisions of the Bankruptcy tained on credit and has not paid for, unless Act, 1869, he shall remain liable for the the jury is satisfied that he had no intent to unpaid balance of any debt which he incurred defraud:
or increased, or whereof before the date of 16. If he is guilty of any false represen- the arrangement or composition he obtained tation or other fraud for the purpose of ob- forbearance, by any fraud, provided the taining the consent of his creditors or any of defrauded creditor has not assented to the them to any agreement with reference to his arrangement or composition otherwise than affairs or his bankruptcy or liquidation. by proving his debt and accepting dividends.
Sect. 12. That if any person who is ad. Sect. 16. That where a trustee in any bankjudged a bankrupt or has his affairs liqui. ruptcy reports to any court exercising jurisdated by arrangements after the presentation diction in bankruptcy that in his opinion a of a bankruptcy petition against him or the bankrupt has been guilty of any offence commencement of the liquidation, or within under this act, or where the court is satisfied four months before, such presentation or upon the representation of any creditor or commencement, quits England and takes member of the committee of inspection that with him, or attempts or makes preparation there is ground to believe that the bankrupt for quitting England and for taking with him, has been guilty of any offence under this act, any part of his property to the amount of the court shall, if it appears to the court that £20 or upwards, which ought by law to be there is a reasonable probability that the divided amongst his creditors, he shall (unless bankrupt may be convicted, order the trustee the jury is satisfied that he had no intent to to prosecute the bankrupt for such offence. defraud) be guilty of felony, punishable with Sect. 17. That where the prosecution of imprisonment for a time not exceeding two the bankrupt under this act is ordered by any years, with or without hard labour.
court, then, on the production of the order of Sect. 13. That any person shall in each of the court, the expenses of the prosecution the cases following be deemed guilty of a shall be allowed, paid, and borne as expenses misdemeanor, and on conviction thereof shall of prosecutions for felony are allowed, paid, be liable to be imprisoned for any term not and borne. exceeding one year, with or without hard Sect. 18. That every such misdemeanor as labour; that is to say,
aforesaid shall be deemed to be an offence (1.) If in incurring any debt or liability he within and subject to the provisions of the has obtained credit under false pretences, or stat. 22 & 23 Vict. c. 17, intituled, “ An Act to by means of any other fraud :
prevent vexatious indictments for certain (2.) If he has with intent to defraud his misdemeanors ;” and when any person is creditors, or any of them, made or caused to charged with any such offence before any be made any gift, delivery, or transfer of or justice or justices, such justice or justices any charge on his property :
shall take into consideration any evidence (3.) If he has, with intent to defraud his adduced before him or them tending to show creditors, concealed or removed any part of that the act charged was not committed with his property since or within two months a guilty intent. before the date of any unsatisfied judgment It is by the 32 & 33 Vict. c. 62, further or order for payment of money obtained enacted, against him.
Sec. 20. That so much of the stat. 5 & 6 Sect. 14. That if any creditor in any bank. Vict. c. 38,“ to define the jurisdiction of jusruptcy or liquidation by arrangement or tices in general and quarter sessions of the composition with creditors in pursuance of peace,” as excludes from the jurisdiction of the Bankruptcy Act, 1869, wilfully and with justices and recorders at sessions of the peace intent to defraud makes any false claim, or or adjournments thereof the trial of persons any proof, declaration, or statement of ac- for offences against any provision of the laws count which is untrue in any material par- relating to bankrupts, is hereby repealed as ticular, he shall be guilty of a misdemeanor, from the passing of this act; and any offence punishable with imprisonment not exceeding under this act shall be deemed to be within one year, with or without hard labour. the jurisdiction of such justices and re
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 bona 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 101. 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. 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 adjudica[ * 186 ]
tion, 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 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 III. Cheating.
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 (c), 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
(e) See Mr. Oke's very useful Magisterial demeanant. And by s. 4, the vendor of a Synopsis, which contains a list of offences : chattel which he knows to bear a fraudulent 1, summarily punishable ; 2, indictable, with trade-mark is liable to a penalty. the penal consequences of each, and refer. (m) By s. 12 an intention to defraud any ences to the statutes applicable.
particular person need not be alleged in the (1) R. v. Wheatley, 2 Burr. 1125; Reg. v. indictment, or proved ; but it shall be suffEagleton, Dearsl, 376, 575; R. v. Haynes, 4 cient to allege and prove, with respect to M. & S. 214.
every such misdemeanor and offence, that (9) Vol. I.
the person accused did the act charged with (h) R. v. Hales, 17 St. Tr. 161; Reg. v. intent to defraud, or with intent to enable Boult, 2 Car. & K. 604; R. v. Dixm, 3 N. & some other person to defraud. S. 11.
(n) By s. 5, every addition to and alteration (2) Reg. v. Sharman, Dea rel. 285; Reg. v. or imitation of a trade-mark made with inMoah, Dearsl. & B. 550. See 32 Geo. 3, c. 56. tent to defraud, shall be deemed to be a forged
(k) Reg. v. Closs, Dearsl. & B. 460; Reg. v. and counterfeit trade-mark. Smith, id. 566. The general punishment for (6) By s. 1, the expression “trade-mark ” is fraud indictable at common law is fine and defined to include any name, label, or mark imprisonment, to whicb hard labour may be lawfully used by any person to denote & added. 1 Hawk. P. C. 188; 14 & 15 Vict. c. chattel to be of the manufacture, production, 100, s. 29.
or merchandise of such person, or to be an () Punishment: imprisonment for not article of any particular description made or more than two years, with or without hard sold by such person, and shall also include labour, or fine, or both by imprisonment with any name, mark, or sign which in pursuance or without hard labour and fine, and also of any statute relating to registered designs imprisonment until the fine (if any) shall is to be put upon or attached to any chattel have been paid and satisfied. S. 14.
or article during the existence of any copyAlso, by ss. 2 and 3, a forfeiture of the right or other sole right acquired under the chattel to which the trade-mark has been provisions of such statute. fraudulently applied is incurred by the mis
[ *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 (). (681)
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 manufacIV. Monopolies.
turing or trading which he had before (1). 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.
wilfully inserting in any contract for the sale (9) S. 3.
or purchase of shares in a joint-stock bank. (r) S. 13.
ing company, any false entry of the numbers (8) See the Merchant Shipping Acts, 17 & of such shares, or of the name of the person 18 Vict. c. 104 ; 19 & 20 Vict. c. 41, s. 6; 14 & registered as proprietor thereof, shall be 15 Vict. c. 102, s. 55. As to the prevention guilty of a misdemeanor, and punishable of frauds in the hop trade, see 29 Vict. c. 37, accordingly, amending 54 Geo. 3, c. 123; in the hay and (t) 1 Hawk. P. C. 235. straw trade, 19 & 20 Vict. c. 114.
(u) Inst. 181. By the 30 & 31 Vict. c. 29, s. 1, a person (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; Iill 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 Mags. 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.