Cheat

"Deceitful practices in defrauding or endeavoring to defraud another of his known right, by some wilful device, contrary to the plain rules of common honesty." Hawk. Pl. Cr. b.

2, c. 23, § 1.

The fraudulent obtaining the property of another by any deceitful and illegal practice or token (short of felony) which affects or may affect the public. In order to constitute a cheat or indictable fraud, there must be a prejudice received; and such injury must affect the public welfare, or have a tendency so to do; 2 East, Pl. Cr. 817; 1 Deacon, Cr. Law 225. It seems to be a fair result of the cases, that a cheat, in order to be indictable at common law, must have been public in its nature, by being calculated to defraud numbers, or to deceive or injure the public in general, or by affecting the public trade or revenue, the public health, or being in fraud of public justice, etc. And the other cases to be found in the books, of cheats apparently private which have been yet held to be indictable at common law, will, upon examination, appear to involve considerations of a public nature also, or else to be founded in conspiracy or forgery. Thus, it is not indictable for a man to obtain goods by false verbal representations of his credit in society, and of his ability to pay for them; Com. v. Warren, 6 Mass. 72; or to violate his contract, however fraudulently it be broken; Com. v. Hearsey, 1 Mass. 137; or fraudulently to deliver a less quantity of amber than was contracted for and represented; 2 Burr. 1125; 1 W. Bla. 273; or to deliver short measure of meal; 4 Maule & S. 214.

See 2 East, Pl. Cr. 816; People v. Babcock, 7 Johns. (N. Y.) 201, 5 Am. Dec. 256; Com. v. Morse, 2 Mass. 138; Cross v. Peters, 1 Greenl. (Me.) 387, 10 Am. Dec. 78; Hill v. State, 1 Yerg. (Tenn.) 76, 24 Am. Dec. 441; Republica v. Powell, 1 Dall. (Pa.) 47, 1 L. Ed. 31; 1 B. & H. L. Cr. Cas. 1.

Refusing to return a promissory note obtained for the purpose of examination is merely a private fraud; People v. Miller, 14 Johns. (N. Y.) 371. To cheat a man of his money or goods by using false weights or false measures, has been indictable at common law from time immemorial; 3 Greenl.

Ev. § 86; Com. v. Warren, 6 Mass. 72. See Republica v. Powell, 1 Dall. (Pa.) 47, 1 L. Ed. 31.

In addition to this, the statute 33 Hen. VIII. c. 1, which has been adopted and considered as a part of the common law in some of the United States, and the provisions of which have been either recognized as common law or expressly enacted in nearly all of them, was directed, as appears from its title and preamble, against such persons as received money or goods by means of counterfeit letters or privy tokens in other men's names; Com. v. Warren, 6 Mass. 72; People v. Johnson, 12 Johns. (N. Y.) 292; 3 Greenl.

Ev. § 86; 2 Bish. Cr. L. 145.

A "privy token," within the meaning of this statute, was held to denote some real visible mark or thing, as a key, a ring, etc., and not a mere affirmation or promise. And though writings, generally speaking, may be considered as tokens, yet to be within this statute they must be such as were made in the names of third persons, whereby some additional credit and confidence might be gained to the party using them; 2 East, Pl. Cr. 826, 827. The word "cheat" is not actionable, unless spoken of the plaintiff in relation to his profession or business; Odiorne v. Bacon, 6 Cush. (Mass.) 185; 2 Chit. Rep. 657; Rush v. Cavenaugh, 2 Pa. 187; 20 Up. Can. Q. B. 382; Ostrom v. Calkins, 5 Wend. (N. Y.) 263; Stevenson v. Hayden, 2 Mass. 406; Lucas v. Flinn, 35 Ia. 9. See Deceit; Fraud; False Pretenses; Token; Illiterate.