CHEAT. "Deceitful practices in defraud ing or endeavoring to defraud another of his known right, by some wilful device, con trary 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 prac tice or' token (short of felony) which affects or may affect the public.
In order to constitute a cheat or indict able fraud, there must be a prejudice re ceived; and such injury must affect the public welfare, or have a tendency so to 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 num bers, 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 ap parently private which have been yet held to be indictable at common law, will, upon examination, appear to involve considera tions 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 repre sented ; 2 Burr. 1125; 1 W. Bla. 273; or to receive good barley to grind, and to return instead a musty mixture of barley and oat meal; 4 Manic & 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 examina tion 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 im memorial; 3 Greenl. Ev. § 86 ; Com. v. War ren, 6 Mass. 72. See Republica v. Powell, 1 Dall. (Pa.) 47, 1 L. Ed. 31. In addition to this, the statute 33 Hen. VIII. 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 en acted 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. Ey. § 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 with in 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, un less 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 iv. Flinn, 35 Ia. 9. See DEUEIT; FRAUD; FALSE PRETENSES; TOKEN; ILLITERATE.
A written order or request, ad dressed to a bank or persons carrying on the business of banking, by a party having mon ey in their hands, desiring them to pay, on presentment, to a person therein named or bearer, or to such person or order, a named sum of money. 2 Dan. Neg. Inst. 528 ; Blair v. Wilson, 28 Gratt. (Va.) 170 ; Deener v. Brown, 1 MacArth. (D. C.) 350: In re Brown, 2 Sto. 502, Fed. Cas. No. 1,985. See Chapman v. White, 6 N. Y. 412, 57 Am. Dec. 464.