if the property is not made a security for or subject to the payment of any greater sum of money than the amount which, at the time of the consignment, was due and owing to such agent from his principal, together with the amount of any bill of exchange drawn by or on account of such principal, and accepted by the factor or agent (b).

Embezzlement by Trustees.

by trustees.

For a trustee (or his representative, s. 1) of pro- Embezzlement perty for the use of some other person, or for any public or charitable purpose, with intent to defraud, to convert, or appropriate the same to his own use, or that of any other person than the person aforesaid, or for any purpose other than such public or charitable purpose; or (b), to otherwise dispose of or destroy the property, is a misdemeanor, punishable by penal servitude to the extent of seven years. But no criminal proceedings may be taken without the sanction of the Attorney-General. And, if civil proceedings have been taken against the trustee, the person who has taken such proceedings may not commence any prosecution under this section without the sanction of the court or judge of such civil proceedings (c).

Embezzlement by Directors, Officers, and Members of Public
Companies and Corporate Bodies.

The following offences are misdemeanors punishable offences by by penal servitude to the extent of seven years :—

directors, &c.

the common

For a director, member, or public officer of a body Appropriating corporate or public company, to fraudulently take or property. apply to his own use, or any use or purpose other than the uses or purposes of such body or company, any of the property of the body or company (d).

(b) 24 & 25 Vict. c. 96, s. 78.

(c) Ibid. s. 80.

(d) Ibid. s. 81.

Receiving

without entering in the books.

Fraudulent falsification of the books.

Making false statements,

&c.

No prosecu tion if there has been a disclosure in

For a director, public officer, or manager of such body or company, to receive or possess himself of any of the property of the company, &c., otherwise than in payment of a just debt or demand, and, with intent to defraud, to omit to make or have made a full and true entry thereof in the books and accounts of the company (e).

For a director, manager, public officer, or member, with intent to defraud, to destroy, alter, mutilate, or falsify any book, paper, writing, or valuable security, belonging to the body or company; or (b) to make or concur in making any false entry, or to omit or concur in omitting any material particular in any book of account or other document (f).

For a director, manager, or public officer to make, circulate, or publish, or concur in making, &c., any written statement or account which he knows to be false in any material particular, with intent to deceive or defraud any member, shareholder, or creditor of such body or company, or with intent to induce any person to become a shareholder or partner therein, or to intrust or advance any property to such body or company, or to enter into any security for the benefit thereof (g).

With regard to these cases of embezzlement by bankers, merchants, attorneys, agents, or factors, a civil action. trustees, directors, officers, or members of bodies corporate or public companies, the provisions as to which are contained in sects. 75 to 84 of the Larceny Act, it is enacted that no person shall be convicted of any of these misdemeanors if he shall, at any time previously to his being charged with such misdemeanor, have dis

(e) 24 & 25 Vict. c. 96.

(f) Ibid. s. 83.

(g) Ibid. s. 84.

closed the act on oath, in consequence of any action which shall have been bond fide instituted by any party aggrieved; or if he shall have first disclosed the same in any compulsory examination or deposition before any court upon the hearing of any matter in bankruptcy or insolvency (h).

in case of

For a director, officer, or contributory of a company Falsification. wound up under the Companies Act, 1862, to destroy, company mutilate, alter, or falsify any books, papers, writings, wound up. or securities, or to make or be privy to making any false or fraudulent entry in any book or other document of the company, with intent to defraud or deceive any person, is a misdemeanor, punishable by imprisonment not exceeding two years (i).

For an officer of a savings bank to receive any de- Savings banks. posit and not pay over the same is a misdemeanor, punishable by fine or imprisonment, or both (k).

(h) 24 & 25 Vict. c. 96, s. 85. And also nothing in these sections shall entitle any person to refuse to answer a question in a civil proceeding on the ground that it tends to criminate himself.-s. 85. The criminal proceeding is not to deprive any party of his civil remedy, but the conviction is not to be evidence in such civil suit.—s. 86.

(i) 25 & 26 Vict. c. 89, s. 166.

(k) 26 & 27 Vict. c. 87, s. 9. False statements, returns, &c., by railway companies, v. 29 & 30 Vict. c. 108, ss. 15-17; 31 & 32 Vict. c. 119, 8.5 34 & 35 Vict. c. 78, s. 10.

False pretences distin

guished from larceny.

CHAPTER III.

FALSE PRETENCES.

IT is difficult to correctly define the offence of obtaining property by false pretences. In some cases, on the one hand, there seems little to distinguish it from larceny; and in others, to distinguish it from a mere non-criminal lie. The most intelligible distinction between false pretences and larceny has been thus set forth (1): "In larceny the owner of the thing stolen has no intention to part with his property therein to the person taking it, although he may intend to part with the possession; in false pretences the owner does intend to part with his property in the money or chattel, but it is obtained from him by fraud.” The line between the two crimes is very narrow. Thus, A. intrusts B. with a parcel to carry to C. D. meets B. and alleges that he is C., whereupon B. gives him the parcel. It will be larceny if B. had not authority to pass the property; false pretences if he had (m). The difficulty of discriminating arises chiefly where there has been a constructive taking only, where the owner delivers the property, though the possession is obtained by fraud. The evil which might arise from this state of things is to some extent obviated by a provision that if upon an indictment for false pretences it is proved that the defendant obtained the property in such manner as to amount in law to larceny, he is not on that account to be acquitted (n). Therefore in cases of doubt it is better to indict for false pretences.

(7) Arch. 374; v. White v. Garden, 10 C. B. 927.
(m) v. R. v. Watkins, 1 Leach, 520.

(n) 24 & 25 Vict. c. 96, s. 88.

The points to be proved on an indictment for false pretences are the following:

i. The pretence and its falsity.

ii. That the property or some part thereof was
obtained by means of the pretence.

iii. The intent to defraud.

i. The pretence must be wholly or in part of an Pretence must existing fact (o); for example, a false statement of one's be of an existname and circumstances in a begging letter.

But a

mere exaggeration will not suffice, as if a person actually in business pretends that he is doing a very good business (p); otherwise, if he were not doing any business at all (9). The fact must be an existing fact; therefore it is not within the act for a person to pretend that he will do something which he does not mean to do (r). But a promise to do a thing may involve a false pretence that the promisor has the power to do that thing; and for this an indictment will lie (s).

Obtaining additional money by stating that a larger amount of goods is delivered than is known to be the case, is within the statute (†). But of course not every breach of warranty or false assertion at the time. of a bargain will be treated as a false pretence (u); for example, if, in selling an article for a lump sum, the vendor makes a false representation as to the weight in order to induce the purchaser to conclude

ing fact.

(o) "It may be laid down as a general rule of interpretation of the statute, that wherever a person fraudulently represents as an existing fact that which is not an existing fact, and so gets money, &c., that is an offence within the Act."-Arch. 515.

(p) R. v. Williamson, 11 Cox, 328.

(q) R. v. Crabb, 11 Cox, 85.

(r) R. v. Lee, 9 Cox, 304. See also R. v. Speed, 46 L. T. N. S. 174. (8) R. v. Giles, 34 L. J. (M.C.) 50.

(t) R. v. Ragg, 29 L. J. (M.C.) 86.

(u) R. v. Codrington, 1 C. & P. 661.