By the Court,
Sutherland, J.
The cheat, or fraud, charged in this indictment, is not an offence punishable at common law. A fraud, to be indictable at common law, must be such as affects the public, or is calculated to defraud numbers, and which ordinary care and caution cannot guard against: as if a man uses false weights and measures, and sells by them to [188]*188his customers, in the general course of his dealing; or defrau(js another under false tokens; or if there be a conspiracy to cheat; for common care and prudence are no protection against these. This was the rule laid down by Lord Mansfield, in Rex v. Wheatley, 2 Burr. 1127, and has ever since been considered as establishing the true boundary between frands that are and those that are not indictable at common law. Rex v. Young, 3 T. R. 104. 6 Mod. R. 42. 1 Salk. 379. 6 T. R. 565. 1 East, 185. 2 Strange, 866. 2 East’s Crown Law, 816. It was adopted and followed by this court in The People v. Babcock, 7 Johns. R. 201, and The People v. Johnson, 12 Johns. R. 292.
The better opinion seems to be, that in order to render a cheat or fraud indictable at common law, on the ground that it was effected by means of a false token, the token must be such as indicates a general intent to defraud, and therefore is an injury to- the public. A mere privy token, or counterfeit letters in other men’s names, seem not to come within the meaning of the term false token, as used at common law. Mr. Chitty, 3 Chitty’s C. L. 995, says, the cases in which fraud is indictable at common law, seem confined to the use of false weights and measures, the selling goods with counterfeit marks, playing with false dice, and frauds affecting the course of justice, and immediately injuring the interests of the public. Forgery and conspiracy he considers distinct offences.
Mr. East, East's C. L. 817, 820,says,that the generalproposition that frauds effected by means oíf ales tokens ave indictable at common law, applies only to such false tokens as affect the public at large ; such as are calculated to (jefraud numbers, to deceive the people in general, as false weights and measures. Cowp. 323. This view of the common law offence of cheating derives strong confirmation from the provisions of the statute of 38 Hen. 8, ch. 1. By that statute the obtaining goods by privy tokens, or counterfeit letters in other men’s names, &c. is expressly made an indictable offence. As to privy tokens, at least, this statute has always been considered as creatiug a new offence, though counterfeit letters of a certain description were perhaps indictable as forgeries at common law. 2 Lord Raym. 1466. 3 Chitty’s C. L. 997.
[189]*189But the offence charged is unquestionably indictable, under the statute against obtaining goods, &c. by false pretences, if it is alleged in proper form. Our statute, 1 R. L. 410, § 13, contains substantially the provisions of the English statutes of 33d Henry 8, 30th George 2, and the 52d of George 3. Mr. Chitty, Chitty’s C. L. 998, sums up what he considers the common and statute law upon this subject as follows: At common law he says, those cheats only were indictable which affected the public at large. The 33d Henry 8 made all such frauds on individuals criminal as .were effected by privy tokens, and by which either money or goods were obtained. The 30th George 2, ch. 24, extended the means of deceit thus made indictable to every kind of false pretences, by which money, goods and chattels were obtained. And the 52d George 3, finally made every description of fraud by false pretences criminal, whatever kind of valuable property the deception was intended to obtain. Our statute provides that every person who shall knowingly and designedly by false pretence, obtain from any other person any money, goods or chattels, or other effects whatsoever, with intent to cheat or defraud any person, Sea. shall be punished, &c. Our statute is at least as comprehensive as all the English acts combined.
It is objected to this indictment, considered as an indictment under the statute: 1. That all the counts are bad for uncertainty, in not alleging that the notes which Filley was induced to endorse for the defendant, by the false pretences set forth in the indictment, were ever negotiated, or that the defendant ever received any money from them, or when and where it was received; 2. That the circumstances stated in the indictment do not sufficiently show the fraudulent intent of the defendant, admitting the representations made by him and by which the endorsements of Filley were procured to have been false, and that a mere general allegation that the act was done with the intent to defraud, is not sufficient; 3. That endorsements of promissory notes are not goods and chattels, or other effects, within the meaning of the statute; 4. And principally, that the pretences are not all negatived in either count of the indictment.
[190]*190The first and second counts of the indictment expressly aver that Filley was charged as endorser upon the notes mentioned therein, and which it is alleged he was induced to endorse by the false pretences of the defendant, and that he had been obliged to pay, and had actually paid the same. Filley could not have been charged as endorser, unless the notes had been negotiated, and their payment by him, whoever was the holder at the time, must have been for the use and benefit of the defendant, for whose accommodation they were endorsed. The third count does not show that Filley ever paid the notes mentioned therein, or that Stone ever parted with them or put them in circulation, or that Filley ever suffered inconvenience or loss in consequence of having signed them. For aught that appears, they may have been immediately destroyed by Stone or returned to Filley, or may now be in the hands of Stone, where they are incapable of being used to the prejudice of any of the parties to them. Our revised statutes, like the 52 Geo. 3d, 2 R. S. 677, make it an offence in express terms to obtain the signature of any person to any written instrument by any false pretence, with intent to cheat or defraud another. Under this statute, the offence is complete when the signature is obtained, if it were obtained by false pretences and with a fraudulent intent, although it may never be used to the prejudice of any person. But whether a note, where no use has been made of it, can be considered either money, or goods or chattels, or a valuable thing, may be questionable. It is not however important in this case, as the objection has been shown not to exist in relation to the other two counts ; and if any one count is good, it is sufficient. That a note obtained by false pretences and with a fraudulent intent, and which the party has actually used for his own benefit, is embraced within the spirit of the act as it stood before the revised statutes, I have no doubt. The words other effects, as used in this act, it is obvious, when the connection in which they stand is taken into consideration, were designed to be most comprehensive. They were probably intended to embrace every thing of a personal character, not appropriately and strictly falling under the description of money, or goods or chattels. [191]
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By the Court,
Sutherland, J.
The cheat, or fraud, charged in this indictment, is not an offence punishable at common law. A fraud, to be indictable at common law, must be such as affects the public, or is calculated to defraud numbers, and which ordinary care and caution cannot guard against: as if a man uses false weights and measures, and sells by them to [188]*188his customers, in the general course of his dealing; or defrau(js another under false tokens; or if there be a conspiracy to cheat; for common care and prudence are no protection against these. This was the rule laid down by Lord Mansfield, in Rex v. Wheatley, 2 Burr. 1127, and has ever since been considered as establishing the true boundary between frands that are and those that are not indictable at common law. Rex v. Young, 3 T. R. 104. 6 Mod. R. 42. 1 Salk. 379. 6 T. R. 565. 1 East, 185. 2 Strange, 866. 2 East’s Crown Law, 816. It was adopted and followed by this court in The People v. Babcock, 7 Johns. R. 201, and The People v. Johnson, 12 Johns. R. 292.
The better opinion seems to be, that in order to render a cheat or fraud indictable at common law, on the ground that it was effected by means of a false token, the token must be such as indicates a general intent to defraud, and therefore is an injury to- the public. A mere privy token, or counterfeit letters in other men’s names, seem not to come within the meaning of the term false token, as used at common law. Mr. Chitty, 3 Chitty’s C. L. 995, says, the cases in which fraud is indictable at common law, seem confined to the use of false weights and measures, the selling goods with counterfeit marks, playing with false dice, and frauds affecting the course of justice, and immediately injuring the interests of the public. Forgery and conspiracy he considers distinct offences.
Mr. East, East's C. L. 817, 820,says,that the generalproposition that frauds effected by means oíf ales tokens ave indictable at common law, applies only to such false tokens as affect the public at large ; such as are calculated to (jefraud numbers, to deceive the people in general, as false weights and measures. Cowp. 323. This view of the common law offence of cheating derives strong confirmation from the provisions of the statute of 38 Hen. 8, ch. 1. By that statute the obtaining goods by privy tokens, or counterfeit letters in other men’s names, &c. is expressly made an indictable offence. As to privy tokens, at least, this statute has always been considered as creatiug a new offence, though counterfeit letters of a certain description were perhaps indictable as forgeries at common law. 2 Lord Raym. 1466. 3 Chitty’s C. L. 997.
[189]*189But the offence charged is unquestionably indictable, under the statute against obtaining goods, &c. by false pretences, if it is alleged in proper form. Our statute, 1 R. L. 410, § 13, contains substantially the provisions of the English statutes of 33d Henry 8, 30th George 2, and the 52d of George 3. Mr. Chitty, Chitty’s C. L. 998, sums up what he considers the common and statute law upon this subject as follows: At common law he says, those cheats only were indictable which affected the public at large. The 33d Henry 8 made all such frauds on individuals criminal as .were effected by privy tokens, and by which either money or goods were obtained. The 30th George 2, ch. 24, extended the means of deceit thus made indictable to every kind of false pretences, by which money, goods and chattels were obtained. And the 52d George 3, finally made every description of fraud by false pretences criminal, whatever kind of valuable property the deception was intended to obtain. Our statute provides that every person who shall knowingly and designedly by false pretence, obtain from any other person any money, goods or chattels, or other effects whatsoever, with intent to cheat or defraud any person, Sea. shall be punished, &c. Our statute is at least as comprehensive as all the English acts combined.
It is objected to this indictment, considered as an indictment under the statute: 1. That all the counts are bad for uncertainty, in not alleging that the notes which Filley was induced to endorse for the defendant, by the false pretences set forth in the indictment, were ever negotiated, or that the defendant ever received any money from them, or when and where it was received; 2. That the circumstances stated in the indictment do not sufficiently show the fraudulent intent of the defendant, admitting the representations made by him and by which the endorsements of Filley were procured to have been false, and that a mere general allegation that the act was done with the intent to defraud, is not sufficient; 3. That endorsements of promissory notes are not goods and chattels, or other effects, within the meaning of the statute; 4. And principally, that the pretences are not all negatived in either count of the indictment.
[190]*190The first and second counts of the indictment expressly aver that Filley was charged as endorser upon the notes mentioned therein, and which it is alleged he was induced to endorse by the false pretences of the defendant, and that he had been obliged to pay, and had actually paid the same. Filley could not have been charged as endorser, unless the notes had been negotiated, and their payment by him, whoever was the holder at the time, must have been for the use and benefit of the defendant, for whose accommodation they were endorsed. The third count does not show that Filley ever paid the notes mentioned therein, or that Stone ever parted with them or put them in circulation, or that Filley ever suffered inconvenience or loss in consequence of having signed them. For aught that appears, they may have been immediately destroyed by Stone or returned to Filley, or may now be in the hands of Stone, where they are incapable of being used to the prejudice of any of the parties to them. Our revised statutes, like the 52 Geo. 3d, 2 R. S. 677, make it an offence in express terms to obtain the signature of any person to any written instrument by any false pretence, with intent to cheat or defraud another. Under this statute, the offence is complete when the signature is obtained, if it were obtained by false pretences and with a fraudulent intent, although it may never be used to the prejudice of any person. But whether a note, where no use has been made of it, can be considered either money, or goods or chattels, or a valuable thing, may be questionable. It is not however important in this case, as the objection has been shown not to exist in relation to the other two counts ; and if any one count is good, it is sufficient. That a note obtained by false pretences and with a fraudulent intent, and which the party has actually used for his own benefit, is embraced within the spirit of the act as it stood before the revised statutes, I have no doubt. The words other effects, as used in this act, it is obvious, when the connection in which they stand is taken into consideration, were designed to be most comprehensive. They were probably intended to embrace every thing of a personal character, not appropriately and strictly falling under the description of money, or goods or chattels. [191]*1911 consider them as equivalent to the words or other valuable thing whatsoever in the British act.
The circumstances stated in the indictment sufficiently show the fraudulent intent of the defendant.
It is not necessary to negative all the pretences set forth in the indictment. Those relied upon by the pleader, and which he expects to prove were false, must be specifically and directly negatived. It is not sufficient to charge that the defendant falsely pretended, &c. setting forth the means used, and then to aver that by the means of such false pretences he obtained the property ; but the pleader must go on as in an assignment of perjury, and falsify by specific and distinct averments such of the pretences as he intends to prove upon the trial were used and were false. 3 Chitty’s Cr. L. 762, 999. 2 id. 163, 311. 2 Maule & Selw. 379. The object of this specification is to give notice to the defendant of what he is to come prepared to answer; and although there be several assignments in one count, it will be sufficient to prove one of them. 2 Ld. Raym. 886. 2 Campb. 138. Croke Ch. 622. If it were necessary to negative all the pretences in the indictment, it would be necessary to prove them all false upon the trial. This it clearly is not. The objection to the indictment on this ground is therefore unfounded.
The only remaining question is whether the court of oyer and terminer had authority to permit a record to be made up in this case as of a judgment upon demurrer. In June term, 1829, the court below quashed the indictment. In November term following, upon the application of the district attorney, and in pursuance of the advice of this court, they vacated the rule quashing the indictment, and permitted the district attorney to make up and file a record, in the same manner and form as if the defendant had demurred to the indictment and judgment had been rendered in his favor thereon. This course was pursued for the purpose of enabling the district attorney to bring a writ of error, as no writ of error can be brought upon an order quashing an indictment. It is like an arrest of judgment for the insufficiency of the declaration; there is no judgment to be affirmed or reversed. In the latter case it is perfectly well settled that the plaintiff has a right [192]*192to move the court below for judgment in favor of the defendant against himself, for the purpose of being enabled to bring a writ of error; and if the court below refuses to give such judgment, this court will grant a mandamus to compel them to do it. The practice of this court in this respect is well established. There are several reported cases upon this subject, and many more which have not been reported; Fish v. Weatherwax, 2 Johns. Cas. 215; Horne v. Barry, 19 Johns. R. 247; and in the recent case of The People v. The Onondaga C. P. 2 Wendell, 631, this was held to be the proper course to be pursued in a criminal case, where the court below had arrested the judgment. It certainly is equally proper where the indictment has been quashed. The power and jurisdiction of the court over the cause are not determined either by an order arresting the judgment or quashing the indictment. It is competent for a court, upon proper cause shown, and upon proper terms, with a view of promoting the substantial purposes of justice, to vacate ór set aside its most formal rules and orders. It is unusual for a court to quash an indictment, unless it is most clearly and obviously bad. They will drive the defendant to his demurrer, or to a motion in arrest of judgment, or a writ of error. 1 Chitty’s Cr. L. 246, 300. Where an indictment therefore has been quashed, and the public prosecutor wishes to have the opinion of the court reviwed, it is their duty to vacate the rule, if the application is made within a reasonable time, and give to their judgment a form which will enable the district attorney to bring a writ of error.
On the whole, therefore, I am of opinion that the two first counts of the indictment are good, and that the judgment of the-court below ought therefore to be reversed.
Judgment reversed.