R v Wheatly
| Jurisdiction | England & Wales |
| Date | 1761 |
| Court | Court of the King's Bench |
English Reports Citation: 97 E.R. 746
IN THE COURT OF KING'S BENCH
S. C. 1 Bl. 273.
Referred to, R. v. Brailsford [1905], 2 K. B. 745.
eex versus wheatly. Thurs. 12th Feb. 1761. [S. C. 1 Bl. 273.] Delivering less beer than contracted for as the due quantity, not indictable. [Referred to, R. v. Brailsfwd [1905], 2 K. B. 745.] Mr. Norton, for the prosecutor, shewed cause why judgment should not be arrested ; a rule for that purpose having been obtained, upon a motion made by Mr. * V. 5 G. 2, c. 30, s. 1. 3 BUR*. 1126. REX V. WHEATLY 747 Morton on Monday 26th January last, in arrest of judgment upon this indictment for knowingly selling amber-beer short of the due and just measure, (whereof the defendant had been convicted). The charge in the indictment was,(a) "that Thomas Wheatly late of the parish of St. Luke in the county of Middlesex brewer, being a person of evil name, fame and of dishonest conversation, and devising and intending to deceive and defraud one Richard Webb of hia monies, on, &c. at, &c. falsely, fraudulently and deceitfully did sell and deliver and cause to be sold and delivered to the said Richard Webb sixteen gallons and no more of a certain malt liquor commonly called amber, for and as eighteen gallons of the same liquor which said liquor so as aforesaid sold and delivered did then and there want two gallons of the due and just measure of eighteen gallons, for which the same was sold and delivered as aforesaid ; (the said Thomas Wheatly then and there well knowing the same liquor so by him sold and delivered to want two gallons of the due and just measure as aforesaid;) and he the said Thomas Wheatly did receive of the said Richard Webb the sum of fifteen shillings, &c, for eighteen gallons, &c. pretended to have been sold and delivered, &c. although there was only sixteen gallons so as aforesaid delivered : and he the said Thomas Wheatly him the said Richard Webb of two gallons of, &c. fraudulently and unlawfully did deceive and defraud ; to the great damage and fraud of the said Richard Webb, to the evil example of others in the like case offending, and against the peace of our Sovereign Lord the King his Crown and dignity." [1126] Mr. Morton and Mr. Yates, who were of counsel for the defendant, (to arrest the judgment,) objected that the fact charged was nothing more than a mere breach of a civil contract; not an indictable offence. To prove this, they cited Bex v. Combrun, P. 1751, 24 it. 2, B. R. which was exactly and punctually the same case as the present, only mutatis mutandis. And Rex v. Driffield, Tr. 1754, 27, 28 G. 2, B. R. S. P. An indictment for a cheat, in selling coals as and for two bushels, whereas it was a peck short of that measure; there the indictment was quashed on motion. Sex v. Hannah Heath-an indictment for selling and delivering seventeen gallons three quarts and half-pint of geneva, (and the like of brandy,) as and for a greater quantity, was quashed on motion. In I Salk. 151, Nehuff's ease, P. 4 Ann. B. R. a certiorari was granted to remove the indictment from the Old Bailey ; because it was not a matter criminal: it was "borrowing 6001. and promising to send a pledge of fine cloth and gold dust; and sending only some coarse cloth, and no gold dust." In Tremaine,* title Indictments for Cheats.-All of them either lay a conspiracy, or shew something amounting to a false token. A mere civil wrong will not support an indictment. And here is no criminal charge ; it is not alledged " that he used false measures." The prosecutor should have examined and seen that it was the right and just quantity. Mr. Norton, pro Rege, offered the following reasons why the judgment should not be arrested. The defendant has been convicted of the fact. He may bring a writ of error, if the indictment is erroneous. This is an indictable offence; it is a cheat, a public fraud, in the course of his trade : he is stated to be a brewer. There is a distinction between private frauds, and frauds in the course of trade. The same fact may be a ground for a private action, and for an indictment too. None of the cited cases were after verdict. It might here (for aught that appears to the contrary) have been proved "that he sold this less quantity, by false measure:" and every thing shall be presumed in favour of a verdict. And here is a false pretence, at the least: and it...
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