strument, the false making of which would be punishable as forgery. It is insisted that each count is bad. There are fourteen in number. It is claimed that it should be alleged that the pretenses were made feloniously. The statute (Rev. Laws, sec. 4154) creates and defines the offense, and an indictment in the words of the statute, properly setting forth the pretenses and alleging their falsity, is sufficient; it need not be averred that the pretenses were feloniously made: See State v. Daley, 41 Vt. 564. It is further claimed that the pretenses are not within the statute; that they relate to acts to be performed in the future, statements of something to take place in the future; i. e., that six men named were to pay the debts of the respondent at some subsequent time. We think in making this claim the counsel misconceive the purport of the allegations, which is, that the persons named had in the past entered into arrangement and agreement to furnish money to pay the respondent's debts, - a representation of an existing fact which would bring about a future result. In falsely pretending that such an arrangement and agreement had already been made, the respondent, in that respect, brought himself directly within the statute: In re Greenough, 31 Vt. 279. It is next claimed that the false pretenses were not such as to mislead a man of ordinary prudence. This question cannot be raised upon demurrer, for if the rule is as claimed by the respondent's counsel, whether the pretenses were calculated to deceive a person of ordinary prudence would be a question to be submitted to the jury under all the circumstances of the case.

An objection is made to certain counts that it is not alleged that the signatures or money therein named were obtained designedly. The obtaining, to constitute an offense, must be designedly, and for want of such an allegation, counts 1, 3, 4, 8, and 12 are insufficient.

It is sufficiently alleged that the signatures and money were obtained by means of false pretenses. The acts of the respondent are properly described as "false pretenses," and further describing them as "inducements," "representations," and "sayings" does not render the count defective. Describing the acts in the language of the statute is sufficient, and the better way, but a further description of them as sayings, etc., is objectionable in nothing but a tautological sense. The instrument to which the signature was obtained being fully set forth verbatim, it was unnecessary to allege a conclusion

of law, that the false making thereof was punishable as forgery.

An allegation of the delivery of the notes to Switzer is implied in the averment that he obtained the signatures. He could not have obtained them without a delivery of the notes to him, or to some one for him. All the synonyms of the words "to obtain" indicate this as the proper construction. A promissory note is property, within the meaning of the words "or other property," as used in the statute.

It is said that in the eleventh count there is no allegation of an intent to defraud. This is an error, as it is set forth that the respondent falsely pretended, etc., with the intent then and there, by means thereof, to defraud the said Tibbetts.

The claim that it is not alleged that no one of the six men named would furnish the money to pay Switzer's debts, if not an absurdity, savors strongly of it. The allegation was unnecessary, mere surplusage. The pretense alleged was, that six men named had agreed to furnish the money to pay Switzer's debts. This was properly negated. If all had not made the agreement, the pretense was false, even if one of the six, or all of them, or Switzer himself, was ready to pay, and did pay. The gravamen of the offense is in making the false pretense, etc., and obtaining thereby a person's property or signature, and does not depend upon the ultimate loss of the victim, or whether in fact the latter sustains any pecuniary loss or not. In State v. Mills, 17 Me. 211, it was falsely pretended by the owner of a horse that he was the horse called the Charley, and by that pretense the owner procured an exchange of horses; it was held that it was a false pretense, within the statute, although the horse falsely called the Charley was as good and of as great value as the real Charley horse.

The third and fourth counts being held defective for the reasons before stated, other objections thereto are not considered. We hold that, under this statute, it need not be alleged that the respondent knew the pretenses were false; if it is alleged that he designedly made them, with intent, etc., the indictment is sufficient.

Judgment reversed, and cause remanded.

FALSE PRETENSES.

For a complete and thorough discussion of the law relating to the criminal offense of obtaining money or other property under false pretenses, and the sufficiency of an indictment therefor, see Barton v. People, 135 Ill. 405; ante, p. 375, and extended note.

INJUNCTION ÁGainst PerformaNCE OF AN OFFICIAL DUTY 18 VOID. — An injunction will not lie to restrain the secretary of state from delivering to the speaker of the house of representatives the sealed election returns for governor properly transmitted to him, and if granted will be treated as a nullity. Consequently a writ of prohibition will not lie in such case against a mandamus proceeding under a writ improperly granted to compel the delivery of such returns, when the only ground relied upon by the petitioner for the writ of prohibition is the fact that he is the plaintiff in the injunction which has been disregarded.

O. Johnson, J. W. St. Clair, and Brown and Jackson, for the petitioner.

J. A. Hutchinson and W. P. Hubbard, for the respondent. SNYDER, P. On January 10, 1889, A. B. Fleming presented his petition to this court, in which he alleged that on January 9, 1889, he exhibited his bill in equity to A. N. Campbell, a circuit judge of this state, and obtained from him an injunction restraining Henry S. Walker, secretary of state, from laying before the legislature of the state the certificate of the commissioners of the county court of Kanawha County, purporting to ascertain the result of the general election held in said county on November 6, 1888, for the office of governor of this state; that after said injunction had been perfected and served upon said Walker, Nathan Goff, who was also a defendant to said bill of injunction, without any notice to the petitioner, applied to F. A. Guthrie, judge of the

circuit court of Kanawha County, in term, for a writ of mandamus to compel said Henry S. Walker, secretary as aforesaid, to do what he had been enjoined from doing by said bill; that Judge Guthrie, being fully advised of the existence of said injunction, announced from the bench that he would ignore and treat as naught said injunction, and thereupon he did ignore said injunction and award a mandamus nisi returnable at nine o'clock, A. M., on January 10, 1889, commanding said Walker, secretary as aforesaid, to forthwith deliver said certificate to the speaker of the house of delegates of the legislature; the said Walker has no personal interest in said injunction or mandamus proceedings; and that petitioner is the real and only opposing party in interest against the said Goff in any of said matters. The petition prayed for a rule against such Guthrie, judge, etc., and said Goff, to show cause why a writ of prohibition should not issue prohibiting said Guthrie, judge, etc., from holding for naught and setting aside said injunction, and prohibiting him and the said Goff from proceeding in said mandamus case without notice to petitioner, or opportunity for him to appear and defend his interests therein.

The rule was awarded as prayed for, returnable on January 11, 1889, at which time the respondents appeared and moved the court to quash the rule. On the motion of the petitioner, his petition was so amended as to show that the injunction bill averred that a writ of certiorari had been sued out of the circuit court of Kanawha County by petitioner, against the county commissioners of said county, to supervise and correct the action of said commissioners in canvassing the vote for governor at the election of November 6, 1888; that said writ had been sued out on January 4, 1889, and was still pending; and that said county commissioners had transmitted said certificate to said Walker, secretary, etc., on December 15, 1888.

The motion to quash the rule, after having been argued by counsel for the respective parties, was, on January 12, 1889, submitted to this court for its decision.

It is contended by the respondents that the injunction awarded by Judge Campbell, referred to in the petition, was void, because a court of equity has no jurisdiction to restrain a public officer from performing a plain duty required by the constitution. On the other hand, it is insisted for the petitioner, that if any jurisdiction existed for the injunction, then

the action of the circuit court in the mandamus proceedings is such an abuse of its powers and jurisdiction as will be prevented by prohibition. It is thus apparent that the important question is, Did the judge have jurisdiction to award said injunction?

In Walton v. Develing, 61 Ill. 201, it was held that "where the law plainly requires an officer to perform a duty, and he is not exceeding or abusing his powers, but fairly acting within the same, and a court issues a writ to restrain him from its performance, he must discharge his duty as prescribed by the law." That case was a proceeding for contempt against election officers for holding an election in disobedience to an order of injunction, and in which the court held that the injunction, having been issued without authority, was void, and that there no contempt in disobeying it. The court in its opinion says: "In such case, what must control the officer, the mandate of the court or the plain behests of the law? The court, as well as the inferior officer, must be governed by the law. When the law imposes a positive duty upon a public functionary, and a court commands him not to perform it, he must obey the law and disobey the writ of the court."

In Moulton v. Reid, 54 Ala. 320, it was decided that a court of equity has no jurisdiction to enjoin the person declared elected to a municipal office from using his certificate of election, where the law provides for a contest.

In Smith v. Myers, 109 Ind. 1, 58 Am. Rep. 375, it was held that "the courts have no jurisdiction of a suit to enjoin the secretary of state from delivering to the speaker of the house of representatives the sealed returns, alleged to be wrongful and illegal, of an election for lieutenant-governor, which are directed to the speaker as required by law, in care of the secretary, and are to be delivered to him by the latter." The court in its opinion says:·

"It is a principle of constitutional law, declared in our constitution and enforced by many decisions of our own and other courts, that the departments of government are separate and distinct, and that the officers of one department shall not invade any other. To interfere by injunction in this case would involve a violation of this fundamental principle, as a conflict between two great departments of the government would result from an exercise of the jurisdiction invoked by the appellant. The general assembly has power to compel the attendance of persons at its sessions, and to compel the