majority">Ogden, J.

The indictment was removed by eertiorari into this court from the Oyer and Terminer of the county of Gloucester. The counsel for the defendants have contended that the indictment- is defective in form and substance, and that judgment of conviction could not lawfully be pronounced upon it. The seetion of our statute for the punishment of crimes, upon which this prosecution is based, lias lately undergone a careful, consideration in this court, and the terms used therein have received a judicial construction. If, therefore, the indictment before us is in form and substance within the principles of the rulings made in that case, our judgment should be against the demurrer. The 52d section of the act provides that “all persons who knowingly and designedly, by color of any false token, counterfeit letter or writing or false pretence or pretences, shall obtain from any person money, wares, merchandise, goods or chattels, or other valuable thing, with intent to eheat or defraud any person or persons, body politic or corporate, of the same, then every person so offending, shall be deemed guilty of a misdemeanor.”

In the ease of The State v. Vanderbelt and Duckworth, already referred to, to be found in 3 Dutcher 328, the principal authorities cited on this argument were consulted, and it was decided by the full bench, then sitting, that for bringing a case within the statute, it was uot necessary that a false token of a visible thing, either public or private, should be used ; but that any false pretence, not absurd and incredible in itself, sufficient to impose upon the individual to whom made, and thereby induce him to part with his property, is an offence within the statute, if it- he used with an intent to eheat and defraud, and accomplishes the object aimed at.

The court then considered and declared it to be true policy neither to restrain the interpretation of the statute *21within too narrow limits nor to explain it away to the encouragement of frauds. They designed to take the middle ground between pretences which were mere palpable falsehoods and irrational assertions and those which are evidenced by a visible token, and thus to determine the technical meaning of the term false pretence, when used as legal language. It was held, in that case, that the pretence must refer to an existing fact; that it must not be promissory in its character, but must be a representation of something which at the time is untrue.

The court also decided that all the pretences set out in an indictment need not be proved and negatived as laid, if sufficient are proved false to subject a defendant to a conviction. The introduction of defective or superfluous pretences in an indictment, if it Would be valid without them, cannot vitiate others which are good.

Having thus re-stated the substance of the decision made in the ease of Vanderbelt and Duckworth, the validity of the indictment under examination can be more understandingly tested. It sets out that Tomlin and Pan-coast, knowing that one Glendy was the owner of a promissory note, drawn by said Tomlin in favor of Glendy, for the sum of §5200, and also of a check given by Tomlin to him, on the 9th of January, 1858, devising and intending to cheat and defraud the said Glendy out of his note and out of his check, and out of the moneys due on the note and on the check, did unlawfully, knowingly and designedly falsely represent and pretend to him that the said Tomlin was insolvent and largely indebted to divers persons, and was possessed of only a small estate, means and property, and unable to pay said Glendy the promissory note and check; and that the said Pan coast was a man of large estate; and if he could buy of him, said Glendy, his said note and check, he would give him as much as the same were worth, considering the insolvent- circumstances of said Tomlin. And it further sets out, that the said Glendy, believing the said representa*22tions and pretences to be true, and being deceived thereby, was induced to sell, and did then sell and transfer, the'said note and check to the said Pancoast for the sum of $2500. It is averred, in the indictment, that the defendants then knew the representations and pretences to be -fals'e, and by proper averments, all the facts in the pretences set ,out in the indictment are separately negatived. The pleader then, states that by color and means of the said false representation and representations, pretence and pretences, the said defendants did knowingly, unlawfully •and designedly obtain from the said Glendy the promissory note and check for a sum of- money greatly below their value, to wit, the sum of $2500, to the great da mage.of said Glendy, &c.

Does this indictment set out sufficient (if true) to sho.w that there was an intent to defraud, that an actual fraud was committed, and that the object was attained by the means of such false pretences as have already been ruled by this court to be within the prohibition of the statute?

The whole argument in support of the demurrer was made upon the character of the pretences used. Having assumed, as an established proposition, that the pretence meant in the statute must state some existing fact calculated to deceive, and- not the expression of an opinion as to a' supposed fact or a representation as to a future transaction, it was insisted that a representation of the insolvency of Tomlin must necessarily have been a matter of opinion, and not the statement of an existing fact. The case must turn upon the settlement of• this objection to the indictment.

If the contrivance made use of to get possession of the note and check for a consideration far below their value was the mere expression of an opinion upon an uncertain fact, then the demurrer should be sustained. And, on the other hand, if the representation states material matters of fact respecting Tomlin’s ability, and not a supposition or an opinion, and the pretence be knowingly un*23true, then the demurrer should be overruled. The charge in the indictment is, that the defendants knowingly, designedly, and falsely did represent and pretend to Glendy that Tom-Gin (one of the defendants) was insolvent and largely indebted to divers persons, aud was possessed of only small means, and was unable to pay to Glendy the full amount of the two debts which he owed to him.

Three matters are embraced in the representation. 1st. That Tomlin was insolvent. Is not that the statement of a fact ? Was not his solvency or insolvency a then existing fact? Can the positive declaration of that fact by the defendants be held to be a mere conjecture or uncertain opinion ?

The second matter within the representation is, that he was largely indebted. Is not the extent of a person’s indebtedness at a given period of time a fact, and not a future contingency? And is not an averment that a person is largely indebted' the affirmative statement of an existing fact ?

So, also, with regard to the other matters embraced in the representation respecting the debtor’s means and his inability to pay his indebtedness. The status of the debtor is a fact; and he who unqualifiedly undertakes to declare what such status is represents a fact, and does not express an opinion merely. Tie refers to a present, and not to a future event; he states a present condition, not a probability to be made certain by the future. By reversing the order of the representations, aud examining them separately, we shall have the case precisely as the counsel for the demurrants contended it should be for constituting a valid indictment upon the statute.

If the defendants had only been charged with having falsely represented to Glendy that Tomlin was unable to pay him the promissory note aud check, and that the said Glendy was thereby induced to part with his property at a great sacrifice, we should have had before us a naked assertion, which if untrue would have been a simple lio^ *24But when the facts upon which the assertion was made are set forth; when, as a reason in support of the statement, it was said that he was insolvent, and was largely indebted to divers persons, and was possessed of only a small estate, means, and property, it seems to me that every fact which would naturally have created an existing certain inability to pay so large an amount to Glendy was presented to his mind as motives for him to part with his evidences of indebtedness at an unconscionable sacrifice. Should this court require more particularity in statements ? I do not see that in a case of this nature anything short of an inventory and valuation of the debtor’s estate and a schedule of his indebtedness would come up to the principle, which requires that particular circumstances should be set forth to enable a court to determine whether or not the false pretences amount to an indictable offence.

But it was also aruged that the bare statement by a person of his own responsibility, however false it may be, is not within the statute — that such statement discloses no artifice and contrivance, and does not use any extrinsic circumstance as a medium of deception. The authorities on which this part, of the argument was placed are those wherein persons had obtained credit on representations of their perfect ability to pay at the end of the credit which they sought. This case is strictly the reverse: the two defendants are charged with going to the prosecutor, and pretending to him that his debtoi’, Tomlin, was unable to pay him, and also with stating that Pancoast was a man of large estate, and would buy up the indebtedness of Tomlin, if it could be obtained at a reduced price. The credit of Paneoast was used by Tomlin to induce the prosecutor to part with the note and check, and the pretended insolvency of Tomlin was used by Pancoast to get possession of the note and check at less than half of their nominal values. They are charged in the indictment as joint actors in perpetrating the fraud, and when shown to be in privity, each must be bound by the consequences of *25the part which the other performed in practising (he deceit.

The indictment is framed upon the statute. It sets out the pretences which were used designedly to perpetrate the fraud ; it states several circumstances why the false pretences should be taken as true ; it negatives all the facts relied on in the pretences; it avers that the stratagem and contrivance induced Glendy to part with the possession of his note and check, and it follows the language of the statute in setting out the offeuee as closely as proper pleading would permit.

My opinion is that the case comes fully within the decision of this court in 3 Dutcher, and that the demurrer should be overruled, and the defendants be required to plead over the indictment, so that it may he carried down to the next terna in the Circuit Court of Gloucester for trial.

Haines, J., concurred.

Van Dyke, J., dissented.

Cited in State v. Thatcher, 6 Vr. 453.

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