What amounts to. It is a very high offence to challenge another, either by word or letter, to fight a duel, or to be the messenger of such a challenge, or even barely to provoke another to send such a challenge, or to fight, e. g., by dispersing letters to that purpose, containing reflections and insinuating a desire to fight. Hawk. P. C. b. 1, c. 63, s. 3. Thus a letter containing these words, "You have behaved to me like a blackguard. I shall expect to hear from you on this subject, and will punctually attend to any appointment you may think proper to make," was held indictable. R. v. Phillips, 6 East, 464; R. v. Rice, 3 East, 581. No provocation, however great, is a justification on the part of the defendant, although it may weigh with the court in awarding the punishment. Id.

On an indictment for challenging, or provoking to challenge, the prosecutor must prove-1st, the letter or words conveying the challenge; and 2nd, where it does not appear from the writing or words themselves, he must prove the intent of the party to challenge, or to provoke to a challenge.

Proof of the intent. In general the intent of the party will appear from the writing or words themselves; but where that is not the case, as where the words are ambiguous, the prosecutor must show the circumstances under which they were uttered, for the purpose of proving the unlawful intent of the speaker. Thus words of provocation, as "liar," or "knave," though a mediate provocation to a breach of the peace, do not tend to it immediately, like a challenge to fight, or a threatening to beat another. R. v. King, 4 Inst. 181. Yet these, or any other words, would be indictable if proved to have been spoken with an intent to urge the party to send a challenge.1 1 Russ. Cri. 397, 5th ed.

A challenge to fight a duel out of the State is indictable, for its tendency is to produce a breach of the peace. State v. Farrier, 1 Hawks, 487; State v. Taylor, 1 Const. Rep. 107. The declarations of the second are admissible against the principal. State v. Dupont, 2 McC. 334. It is a question for the jury whether the party intended the challenge or not. Gibbon's Case, 1 South. 40; Commonwealth v. Levy, 3 Wheel. C. C. 245; Wood's Case, 3 Rog. Rec. 133. Parol testimony is admissible in expla nation of the note. Commonwealth v. Hart, 6 J. J. Marsh. 120. Expressing a readiness to accept a challenge does not amount to one. Commonwealth v. Tibbs, 1 Dana, 524. Words insinuating a desire to fight with deadly weapons, as they tend to provoke such a combat, may amount to a misdemeanor at common law. Id. 524. Threats

Venue. Where a letter challenging to fight is put into the postoffice in one county, and delivered to the party in another, the venue may be laid in the former county. If the letter is never delivered, the defendant's offence is the same. R. v. Williams, 2 Camp. 506.

of great bodily harm, accompanied by acts showing a formed intention to put them in execution, if intended to put the person threatened in fear of their execution, and if they have that effect, and are calculated to produce that effect upon a person of ordinary firmness, constitute a breach of the public peace, which is punishable by indictment. State v. Benedict, 11 Vt. 236. S.

Nature of cheats indictable at common law. The question, whether or no a fraudulent transaction is indictable, as a cheat at common law, has become of less importance than it formerly was, because several cheats are now indictable by various statutes, especially by the 24 & 25 Vict. c. 96, ss. 88, et seq. (replacing the 7 & 8 Geo. 4, c. 29, s. 53), which include all that class of offences known as obtaining money and goods by false pretences.

The subjects of cheats at common law is very fully considered in 2 Russ. Cri. b. iv. c. 32, s. 1. The line is there very carefully drawn between such cheats and frauds as are of a public nature, and such as do not affect the public; and it is also strongly insisted on that the definition of a cheat indictable at common law must include the term, that it is one which affects, or may affect, the public. The following are the more important frauds at common law.

Cheats affecting public justice. All cheats which are levelled against the public justice of the kingdom are indictable at common law. 2 East, P. Č. 821. Many such cheats, however, come under the head of the offence of "False Personation," which will be separately considered. As to using false county court process, see 9 & 10 Vict. c. 95, s. 57, infra, tit. "Forgery."

Selling unwholesome provisions. The selling unwholesome provisions, 4 Bl. Com. 162, or the giving any person unwholesome victuals, not fit for man to eat, lucri causú, 2 East, P. C. 822, is an indictable offence. Where the defendant was indicted for deceitfully providing certain French prisoners with unwholesome bread, to the injury of their health, it was objected in arrest of judgment, that the indictment could not be sustained, for it did not appear that what was done was in breach of any contract with the public, or of any civil or moral duty; but the judges, on a reference to them, held the conviction right. R. v. Treeves, 2 East, P. C. 821. The defendant was indicted for supplying the royal military asylum at Chelsea 1 Resp. v. Teischer, 1 Dall. 338; Commonwealth v. Eckert, 2 Bro. 251; Resp. v. Powell, 1 Dall. 47. S.

with loaves not fit for the food of man, which he well knew, etc. It appears that many of the loaves were strongly impregnated with alum (prohibited to be used by repealed statute 37 Geo. 3, c. 98, *s. 21), and pieces as large as horse-beans were found; the defence was, that it was merely used to assist the operation of the [*394 yeast, and had been carefully employed. But Lord Ellenborough said, "Who ever introduces a substance into bread, which may be injurious to the health of those who consume it, is indictable if the substance be found in the bread in that injurious form, although, if equally spread over the mass, it would have done no harm." R. v. Dixon, 4 Camp. 12; 3 M. & S. 11.

False accounting, etc., by public officers. Fraudulent malversations or cheats by public officers, are also the subject of an indictment at common law: thus, overseers of the poor are indictable for refusing to account;1 R. v. Comming, 5 Mod. 179; 1 Bott. 232; 2 Russ. Cr. 514, 5th ed.; or for rendering false accounts. R. v. Martin, 2 Campb. 269; 3 Chitty, C. L. 701; 2 Russ. Cri. 514, 5th ed. Upon an application to the court of King's Bench, against the minister and churchwardens of a parish, for misapplying moneys collected by a brief, and returning a smaller sum only as collected, the court, refusing the information, referred the prosecutors to the ordinary remedy by indictment. R. v. Ministers, etc., of St. Botolph, 1 W. Bl. 443. Vide post, tit. "Officers."

Again, where two persons were indicted for enabling persons to pass their accounts with the pay-office, in such way as to defraud the government, and it was objected that it was only a private matter of account, and not indictable, the court decided otherwise, as it related to the public revenue. R. v. Bembridge, cited 6 East, 136.

False weights and measures. Another class of frauds affecting the public, is cheating by false weights and measures, which carry with them the semblance of public authenticity.

It has never been doubted that selling by false weights and measures is at common law an indictable offence, though selling a less quantity than is pretended is not so. Per Buller, J., R. v. Young, 3 T. R. 304; 2 Russ. Cri. 5th ed. Thus, if a person has measured corn in a bushel, and put something in the bushel to fill it up, or has measured it in a bushel short of the stated measure, he is indictable. Pinkney, 2 East, P. C. 820. See R. v. Wheatley, infra, p. 396.

R. v.

Cheating with cards, dice, etc. This was considered an indictable offence at common law, but it is now regulated by the 8 & 9 Vict. c. 109, s. 17, which provides that "every person, who shall by any fraud or unlawful device, or ill practice in playing at or with cards, dice, tables, or other game, or in bearing a part in the stakes, wagers, or adventures, or in betting on the sides or hands of them that do play, or in wagering on the event of any game, sport, pastime, or 1 Resp. v. Powell, 1 Dall. 47; Commonwealth v. Wade, 1 Whart. Dig. 347.

exercise, win from any person to himself, or any other or others, any sum of money or valuable thing, shall be deemed guilty of obtaining such money or valuable thing from such other person by a false pretence with intent to cheat or defraud such person of the same, and, being convicted thereof, shall be punished accordingly."

Tossing with coins was held by the C. C. R. to be a pastime or exercise if not a game within the meaning of this section. R. v. O'Connor, 15 Cox, C. C. R. 3. When it was stated in the indictment that the defendant won certain moneys from one H. F. B., but did not say to whom the money belonged, the indictment was held good, *because it followed the words of the statute. R. v. Moss, *395] Dears. & B. C. C. 104. A doubt was also raised in that case, whether the offence was not completed by winning, even if the money was not obtained.

Using false tokens. The using of false tokens is a cheat at common law. The question was much considered in R. v. Closs, Dears. & B. C. C. 460; 27 L. J., M. C. 541. There the prisoner was indicted for keeping, and exposing for sale, and for selling to one H. A. F. a picture, upon which he had unlawfully painted the signature of J. L., intending thereby to denote that the picture was an original picture by J. L. This was held, on a motion in arrest of judgment, to be a fraud at common law. Cockburn, C. J., said, in delivering the judgment of the Court of Criminal Appeal, "we have carefully examined the authorities, and the result is, that we think, if a person, in the course of his trade openly and publicly carried on, puts a false mark or token upon an article so as to pass it off as a genuine one, when in fact it was only a spurious one, and the article is sold, and money obtained by means of that false mark or token, that is a cheat at common law." But the indictment was held bad for not alleging with sufficient clearness that it was by means of such false tokens that the defendant was able to pass off the picture as genuine, and obtained the money.

What cheats are not indictable. The following cheats have been held not to be indictable at common law; though many of them would now be so by statute. Most of these decisions are considered as resting on the ground that the cheats to which they relate are not of a public nature.

Where an imposition upon an individual' is effected by a false affirmation or bare lie, in a matter not affecting the public, an indictment is not sustainable. Thus, where an indictment charged the defendants with selling to a person eight hundredweight of gum, at the price of seven pounds per hundredweight, falsely affirming that the gum was

1Commonwealth v. Warren, 6 Mass. 72. But when a man induces another, by false representations and false reading, to sign his name to a note for a different amount than that agreed upon, it has been held to be a cheat, for which he may be indicted. Hill v. State, 1 Yerg, 76. The offence of cheating, when the subject-matter is land and the title to it, is not indictable at common law. Commonwealth v. Woodrun, 4 Clark, 207. S.