Evening star. [volume] (Washington, D.C.) 1854-1972, 1897-11-15
ALL UNDER THE BAN
Assistant Attorney General Tyner's
Formal Opinion.
GROUND FOR RECENT FRAUD ORDER
Consideration of the Documentary
Evidence Submitted.
FRAUDU LENT SCHEM ES

The recommendations OF General Tyner.
assistant attorney general for the Post
Office Department, on which Postmaster
Gel eral Gary based his recent fraud order
against john Wedderburn. John Wedder-
burn & Co. and the National Recorder,
were made public today. The opinion Of
General Tyner goes into the character Of
the case of Wedderburn & Co. very fully.
and is especially important in interpreting
the law bearing on fraud orders. 1t Is
also of Importance to patent attorneys
in enabling them to determine what iimita-
tons must be observed In their advertise
ments and outside circulars. and will be
read by them with especial interest.
After referring to the case in a general
way General Tyner says:
To Determine a Fraudulent Scheme.
ITO determine whether a scheme Is de-
Wis ed Chat is to say, invented, designed.
contrived) for fraudulent purposes within
the meaning cf the law. 1t is not necessary
that the Postmaster General shall rely upon
is scheme consummated. but he may
judge OF it's character by its advertise
Eents, letters of uniform purport, and
general literature. and by evidence showing
condemn it upon these. and deny to the in
ventors of the scheme the use of the mails
in giving 1t vitality. In other words, he
may judge of the character of the scheme
as shown on the face of its advertisements,
and to intervene al this point is the exer-
else of a power vested in him by the law
to prevent its completion.
ITO determine whether the scheme Is or
has been conducted for the fraudulent pur
poses condemned by the law. it is impera-
tive that the Postmaster General Save evil
dence satisfactory to himself not only as
to the character of the same, but also that
II has been used by the inventor to ac-
complish its objects, or has succeeded in
defrauding others.
THE use Of the mails is a necessary ele
ment of the frauds alleged to have been
committed by the accused in this case.
Abundant proofs of such use were shown
In fact, 1t was NOT disputed.
Documentary Evidence.
The character of the documentary evil
dence brought before the Post Office De-
partment, the method of business of Wed
derburn & Co., together with court decis-
Ions, are reviewed in the opinion. The
literature sent out by the company is dis
cussed OF the company's statements about
their searches constituting "a certificate of
patentability' and that "one of these GER
tificates will add hundreds and even
thousands of dollars to the value Of
invention yet in its early stages Gen.
Tyner says:
This. although cunningly drawn, is pal
pably false. grossly deceptive and mex
cusably fraudulent. The intention is to
convey the idea that certificate of this
kind Is somehow recognized in patent bus
mess. and that the certificate is badge Of
merit, when in reality the promise to give
1t for such purpose Is not only misleading.
but wicked"
Intent of Congress.
The case of the United States agt. Hart
well is cited, and Gen. Tyner says:
The intent of Congress in the enactment
of the law applicable to this case is evil
dent. 1t is preventive and not punitive
The Postmaster General having found that
a person has devised a scheme to defraud
ne may interpose and prevent the consum-
nation OF the same by the exercise of the
power lodged in him of forbidding the de-
livery OF all mail matter to the promoter of
the scheme.
ute authorizes the Postmaster General to
deal only in a case where a person is al
iesed 10 be engaged in conducting a scheme
10 defraud at that moment-that is tn saw
tnat IL must be scheme then in existence.
AT that moment In operation and that he
Is powerless to deal with 1t upon evidence
mat relates to transactions Of any prior
GATE That Is an extremely narrow view
and II conceded defeats the object of the
law II Is not presumable that Congress-
intehded 10 enact a statute prohibiting an
Snense which to be prevented must be
Dealt with immediately-dealtw with the mo-
ment II Is committed Every law must
nave a sensible construction such a con
structlon as Is consistent with the object
evloehtLy intended to be accomplished.
Wnether the language, technically CON
sidered, bears II out or not The loos;ca,
construction which counsel proposes In this
case would not be logical or sensible.
Claim by the Defense.
1t Is claimed by the defense In this case
as understand their proposition. to he a
principle OF criminal jurisprudence that
false pretenses and representations must be
representations of existing or past fact
and cannot consist of an inducement or ex-
preston OF opinion as to matters in the
future. even though they may b., held out
as an incentive to pay money 1t Is urged
that IL the client received what he paid
Tor, to wit. a search, patent, or services
in the prosecution of an applica tton Tor
patent. there can be no scheme 10 befraud
even II he was induced to have a search
made. o. to have an application filed, by ex-
pressfcns Of opinion, representations NJ
conditions. etc. which would lead him To
believe that his device was patentabIe or
valuable-tEese do rot constitute false pre-
lenses or fraudulent representations,
though. in fact, it could have been ascer
tanned by proper inquiry that it was not a
patentable or valuable invention
To this cannot assent. Such a construc-
tlcn would defeat the obvious intent of the
law. which. as We have seen is to prevent.
bJ means OF the power lodged in the Post
master General. the promotion Of schemes
TO defraud
What Is a scheme? 1t may be defined as
a plan or method adopted for accomplish
ing a certain purpose. which may either
ne by means of one combination of
things. connected or adjusted by design. for
the promotion of the plan. Device is
synonymous with scheme" though hay-
Ing somewhat broader application, and is
something devised studied out for pro-
noting an end; specifically, something con-
trived for an evil or a selfish purpose
The statute under consideration refers
to false and fraudulent pretenses repre-
sensations. or promises These terms must
all be considered and given the construc-
ton their meaning implies, and which will
carry into effect the purposes Of the act
False pretenses Is a representation calcu-
lated to mislead. of some fact or circum-
stance which Is not true, and such false
pretense may be acted as well az spoken
or written . .
False and Fraudulent.
TN this connection we must notice the
distinction In the statute between false,
and fraudulent A statement. while
technically true In detail may be 30 framed
and wOrded AS to convey fa1.a 1,,~-