The question in this case is not one of morals, but of crime. The prisoner was indicted in the Mew York General Sessions, for obtaining from one Eachael Stoesser the sum of $82.70 in money by false pretenses. The crime is statutory. The words of the statute are: “ Every person who, with intent to cheat or defraud another shall designedly,” &c."
Assuming that the pretenses or representations set forth in the indictment, were shown to have been designedly made, and to have been false,' the question presented by the exceptions to the recorder’s charge is, could the prisoner be legally and properly convicted, if the false representations were made and the money thereby obtained, with the intent to apply or credit the same on a just debt, then due and owing from Eachael Stoesser to the prisoner ? In other words, the question presented by the recorder’s charge, and the exceptions to it, is, could the prisoner be lawfully convicted if he used the false and fraudulent means charged in the indictment, for the purpose of obtaining the payment of a just debt, due and owing to him from Mrs. Stoesser ? If, when the money was obtained the prisoner intended to apply it on a just debt, due to him from her, can it be said that he intended to cheat or defraud her out of the money ? I think not. To complete the-statutory crime, the means, the pretenses or representations *517must not only be false and made designedly, but they must also be made with á particular intent, to wit, to cheat or defraud another.
In equity a debtor’s money belongs to his creditors. It is a maxim of equity that a debtor must be just even before he is generous.
If Mrs. Stoesser’s money went to pay a just debt of hers, it went where it ought td have gone. If the prisoner obtained the money by lying designedly by means of the false representations charged in the indictment, he was guilty of a moral delinquency, of fraud or deceit, if you choose to say so, shocking to the moral sense; but if he resorted to this foti.1 means merely for the purpose of procuring payment of an honest debt, I do not see how it can be said that he intended to defraud Mrs. Stoesser out of her money. If such was his intention, all you can say is, that by lying, without any personal violence or breach of the peace, he obtained what belonged to him. If such was his intention, he was not guilty of the crime defined by statute, although he may have perpetrated a gross fraud. If one citizen can, without going to law, procure from another citizen, what justly belongs to the first citizen, without any breach of the peace or injury to the public, that is, by any means not criminal, I do not see why he cannot do it without being guilty of any crime.
These are my views of the question irrespective of cases, but the case in 7 Carr. & Payne, referred to by Mr. Justice Clerke in his opinion in this case, appears to be in point, and to tend to the same conclusion; and I do not see why it should be disregarded.
If Mrs. Stoesser was indebted to the prisoner at the time he obtained the money, in' an amount larger than the sum obtained, it does not follow that. his intention, at the time he obtained the mphey, was to procure the payment, or part payment of that debt. His applying the money on the debt may have proceeded from an afterthought.
With the other questions in the case, I think the recorder should have submitted to the jury the questions as to the fact *518or existence of the indebtedness of Mrs. Stoesser to the prisoner, and as to the intention, and should have charged the jury, that if they found that Mrs. Stoesser was, at the time, &c., indebted to the prisoner in an amount equal to or greater than the sum of money obtained, and also found that the prisoner, when he made the false representations and obtained the money, intended to apply it on such debt, and did subsequently so apply it or credit it, that they must' acquit, however false or designed the representations by the prisoner may have been.
My conclusion is, that the conviction of the prisoner should be reversed, and that a new trial should be ordered.
Judgment affirmed.