dicted for such misdemeanor, it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted of such misdemeanor, and no such indictment shall be removable by certiorari; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts."

[*418] *As many of the cases hereafter cited, were determined upon the repealed statute 30 Geo. 2, c. 24, it will be useful to give the words of that act, which, after reciting that evil-disposed persons had, by various subtle stratagems, &c., fraudulently obtained various sums of money, goods, &c., to the great injury of industrious families, and to the manifest. injury of trade and credit, enacted, that all persons who knowingly and designedly, by false pretence or pretences, should obtain from any person or persons money, goods, wares, or merchandizes, with intent to cheat or defraud any person or persons of the same, should be deemed offenders against law and the public peace, and should be punished, &c. (1).

The ingredients in the offence are the obtaining money, &c., by false pretences, and with an intent to defraud. Barely asking another for a sum of money is not sufficient, and the intent is necessary to constitute the crime. If the intent be made out, and the false pretence used to effect it, it brings the case within the statute. Per Buller, J. Young's case, 3 T. R. 98.

In Joseph Ady's case, 7 C. and P. 140 (a), where, for the defence, an endeavor was made, to show that the prosecutor and his friend went to the defendant, well knowing who he was, for the purpose of making evidence to support a case against him; Patteson, J., is reported to have said, "if the defendant did obtain the money by false pretences, and knew them to be false at the time, it does not signify whether they intended to entrap him or not." It did not appear in the above case, that the prosecutor had gone with any such intention; and he swore that he was induced to part with his money through the representations of the defendant, which he stated he believed. As in order to support the charge it must be shown, that the prosecutor parted with his property by reason of some false pretence used by the prisoner, there seems a difficulty in saying, where a person does not believe the pretence alleged, but parts with his property in order to establish a case against the defendant, that the offence is committed.

Where goods are obtained under a false representation, but that representation is in writing, and amounts to a warrant or order for the delivery of goods, within the stat. 1 Wm. 4, c. 66, s. 10, it is a forgery, and the offender must be indicted for it as such, and cannot be convicted of obtaining the goods under false pretences. Thus where, upon an indictment for obtaining goods by false pretences, it appeared that the prisoner had procured them under the following forged order :

"Mr. B. Please to let the bearer have, for J. R., four yards of Irish linen. J. R."

Taunton, J., directed the prisoner to be acquitted, saying that the offence was a felony, and not a misdemeanor. Evans' case, 5 C. and P. 553 (b). Sed quere as to this being a forgery. Vide post, title Forgery.

(1) 1 Wheeler's C. C. 178, 448.

(a) Eng. Com. L. Rep. xxxii. 469. (b) 1d. xxiv. 453.

The cases illustrating the distinction between false pretences and larceny, will be found under the latter head.

*What shall amount to a false pretence.] "The term 'false [ *419] pretences,' says Mr. East (2 P. C. 828,) is of great latitude, and was used, as Ashurst, J., remarked, in Young's case (supra,) to protect the weaker part of mankind, because all were not equally prudent; it seems difficult, therefore, to restrain the interpretation of it to such false pretences only, against which ordinary prudence cannot be supposed sufficient to guard. But still it may be a question, whether the statute extends to every false pretence, either absurd or irrational on the face of it, or such as the party has, at the very time, the means of detecting at hand; or whether the words, which are general, shall be considered co-extensively with the cheat actually effected by the false pretences used. These may, perhaps, be matters proper for the consideration of the jury, with the advice of the court." In the following case, however, the judges appear to have been of opinion, that the want of common prudence and caution, on the part of the prosecutor, was an answer to the indictment. The prisoner was indicted for obtaining meat from the prosecutor, who was a butcher, under pretence that he would pay for the same on delivery, and would send the money back by the servant of the prosecutor. The jury found a verdict of guilty, and that, at the time the prisoner applied for the meat, and promised to send back the money, he did not intend to return the money, but by that means to obtain the meat and cheat the prosecutor. On a case reserved for the opinion of the judges, they held the conviction wrong, and that it was not a pretence within the meaning of the statute. It was merely a promise for future conduct, and common prudence and caution would have prevented any injury arising from the breach of it. Goodhall's case, Russ. and Ry. 461 (a). So where an indictment charged the prisoner with falsely pretending to the prosecutor, whose mare and gelding had strayed, that he, the prisoner, would tell him where they were, if he would give him a sovereign down, and that the prosecutor gave the sovereign, but the prisoner refused to tell. The judges held that the indictment should have stated (which was proved in evidence) that the prisoner pretended he knew where the horses were; and that the conviction upon it was wrong. Douglas's case, I Moo. C. C. 464 (b).

But it is no objection that the false pretences merely relate to a future event. Thus, where the four prisoners came to the prosecutor, representing that they had betted that a person named Lewis should walk a certain distance within a certain time, and that they should probably win, and thus obtained money from the prosecutor towards the bet, it was objected that, although the representation of a thing past or present, against which caution cannot guard, may be within the statute (30 Geo. 3, c. 24,) yet, if it be the representation of some future transaction, respecting which inquiries may be made, it is not an indictable offence, but the subject only of a civil remedy; the Court of King's Bench, however, were of opinion that false pretences, referring to future transactions, were equally within the statute. Young's case, 3 T. R. 98.

Where a person, with intent to defraud, gives a check upon a *banker with whom he keeps no account, this is a false pretence [420]

(a) 1 Eng C. C. 461. (b) 2 Id. 464.

within the statute. The prisoner, for the purpose of defrauding the prosecutor, gave him, in payment for goods, a check upon a banker with whom he kept no cash and had no account. He was indicted upon the statute 30 Geo. 2, c. 24, and Lara's case (ante, p. 342,) was cited. Per Bayley, J., "This point has been recently before the judges, and they were all of opinion that it is an indictable offence, fraudulently to obtain goods by giving in payment a check upon a banker with whom the party keeps no cash, and which he knows will not be paid." Jackson's case, 3 Campb. 370. Henry Jackson's case, York Sum. Ass. 1830, coram, Bayley, J., Matthews's Dig. C. L. 167.

So where the prisoner was charged with falsely pretending that a postdated check, drawn by himself, was a good and genuine order for £25, and of the value of £25, whereby he obtained a watch and chain; and the jury found, that before the completion of the sale and delivery of the watch by the prosecutor to the prisoner, he represented to the prosecutor that he had an account with the bankers on whom the check was drawn, and that he had a right to draw the check, though he postponed the date for his own convenience, all which was false; and that he represented that the check would be paid on or after the day of the date, but that he had no reasonable ground to believe that it would be paid, or that he could provide funds to pay it; the judges held that he was properly convicted. Parker's case, 7 C. and P. 825 (a).

The prisoner was indicted for a felony. It appeared that she went to a tradesman's house, and said that she came from Mrs. Cook, a neighbor, who would be much obliged if he would let her have half-a-guinea's worth of silver, and that she would send the half-guinea presently. The prisoner obtained the silver, and never returned, and this was held no felony. It was said to be, in truth, a loan of the silver upon the faith that the amount would be repaid at another time. It might be money obtained under a false pretence. The same determination has been made in similar cases at the Old Bailey. Coleman's case, 2 East, P. C. 672.

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Although there may have been a previous confidence between the parties, yet if the particular money or goods in question were obtained under false pretences, it is an indictable offence within the statute. The prisoner was indicted under the 30 Geo. 2, for obtaining money under false pretences. The prosecutors were clothiers, and the prisoner, a shearman in their service, and employed as superintendent to keep an account of the persons employed, and the amount of their wages and earnings, At the end of each week he was supplied with money to pay the different shearmen, by the clerk of the prosecutors, who advanced to him such sums, as,. according to a written account or note delivered to him by the prisoner, were necessary to pay them. The prisoner was not authorised to draw money generally on account, but merely for the sums actually earned by the shearmen; and the clerk was not authorised to pay any sums, except [ *421 ] such as he carried in, in his note or account. *The prisoner delivered to the prosecutor's clerk, a note in writing, in this form, "9 Sept. 1796, 44l. 118. Od.," which was the common form in which he made out the note. In a book in his hand-writing, which it was his business to keep, were the names of several men who had not been employed, who were entered as having earned different sums of money, and also false

(a) Eng. Com. L. Rep. xxxii. 755.

accounts of the work done by those who were employed, so as to make out the sum of 44l. 11s. Od. The prisoner being found guilty, on a case reserved for the opinion of the judges, it was argued that the statute did not extend to cases where there was a previous confidence. At first, there was some diversity of opinion, but finally, they all agreed, that if the false pretence created the credit, the case was within the statute. They considered that the defendant would not have obtained the credit, but for the false account he had delivered in; and, therefore, that he was properly convicted. The defendant, as was observed by one of the judges, was not to have any sum that he thought fit on account, but only so much as was worked out. Witchell's case, 2 East, P. C. 830.

The indictment charged, that one Barrow, at K., &c., delivered to the prisoner, a common carrier, certain goods to be carried by him from K. to one Leach, at L., there to be delivered, &c.; that the defendant received the goods under pretence of carrying them, and delivering them, and undertook so to do, but that intending to cheat Barrow of his money, he afterwards unlawfully, &c. pretended to Barrow, that he had carried the goods from K. to L., for the purpose of delivering them to Leach, and had delivered them to Leach at L., and that Leach had given him, the defendant, a receipt, expressing the delivery of the goods to him, but that he had lost, or mislaid the same, or had left it at home, and that the defendant thereupon demanded of Barrow 16s. for the carriage of the said goods, by means of which false pretences he obtained the money, &c. On a writ of error after conviction, the judgment was affirmed. Airey's case, 2 East, P. C. 831; 2 East, R. 30. The defendant, Count Villeneuve, applied to Sir T. Broughton, telling him that he was employed by the Duke de Lauzun, to take some horses from Ireland to London, and that he had been detained so long by contrary winds, that all his money was spent; by which representations Sir T. Broughton was induced to advance some money to him, after which it turned out that, the defendant never had been employed by the Duke, and that the whole story was a fiction. The defendant was convicted. Villeneuve's case, coram Moreton, C. J., at Chester, cited by Buller, J., in Young's case, 3 T. R. 101, 103.

Where an attorney who had appeared for J. S., who was fined 2. on a summary conviction, called on the wife of J. S., and told her that he had been with J. N., who was fined 21. for a like offence, to Mr. B. and Mr. L., and that he had prevailed upon them to take 17. instead of 21., and that if she would give him 17. he would go and do the same for her; and she thereupon gave him a sovereign, and afterwards paid him for his trouble; and it was *proved that the attorney never applied to [ *422] Mr. B. or Mr. L. respecting either of the fines, and that both were afterwards paid in full; it was held, that the attorney was guilty of obtaining money by false pretences. Asterley's case, 7 C. and P. 191 (a).

It is said by a writer of authority, that a man cannot be guilty of a forgery, merely by passing himself off as the person whose real signature appears, though for the purposes of fraud, and in concert with such real person, for there is no false making. But this appears to be a false pretence within the statute 30 Geo. 2, c. 24, 2 East, P. C. 856.

The mere breach of a warranty, or a false assertion at the time of a bar

(a) Eng. Com. Law Rep. xxxii. 490.

422

gain, cannot, as it seems, be construed into an obtaining money under false pretences. The indictment stated, that the defendant,. by falsely pretending to a person named Varlow, that he was entitled to a reversionary interest in one-seventh share of a sum of money left by his grandfather, obtained the sum of 291. 3s. Od., whereas he was not entitled to any interest in any share, &c. (negativing the pretences.) To prove the pretences, a deed, assigning the defendant's interest in one-seventh share of the interest to Varlow was put in, and in this deed was contained the usual covenant for title; Littledale, J., observed, that a covenant in a deed could not be taken to be a false pretence. The prosecutor stated, that the defendant asked him to purchase a seventh part of some money which he would be entitled to under his grandfather's will, on the death of one of his relatives, and that he agreed to purchase it, and got a deed of assignment executed to him, and thereupon paid the defendant the purchase money. To prove the falsity of the pretences, a previous assignment by the defendant to a person named Peck, was put in. After argument, Littledale, J., said, "The doctrine contended for, on the part of the prosecutor, would make every breach of warranty, or false assertion, at the time of a bargain, a transportable offence. Here the party bought the property, and took as his security a covenant, that the vendor had a good title. If he now finds that the vendor had not a good title, he must resort to the covenant. This is only a ground for a civil action." Codrington's case, 1 C. and P. 661 (a). The indictment charged that the defendant, having in his possession a certain weight of 28 pounds, falsely pretended to C. that a quantity of coals which he delivered to C. weighed 16 hundred weight (meaning 1,792 pounds weight,) and were worth 11., and that the weight was 56 pounds, by means of which he obtained a sovereign from C., with intent to defraud him of part thereof, to wit, 10s.; whereas the coals did not weigh 1,792 pounds, and were not worth 17.; and whereas the weight was not 58 pounds; and whereas the coals were of the weight of 896 pounds only, and were not worth more than 108.; and whereas the weight was 28 pounds only. The prisoner being convicted, it was moved, in arrest of judgment, that all the pretences mentioned in the indictment, except that which related to the false weight, were no more than mere false affirmations; and that [*423] as to the weight there was no allegation in the indictment to *connect the sale of the coals with the use of the weight. The judges held the conviction on the indictment wrong. The priso had accepted a bill drawn on him by the prosecutor for Reed's case, 7 C. and P. 848 (b). 2,6381., who he owed to the latter. The bill was negotiated, and when it became due, the prosecutor asked the prisoner if he was prepared to pay it. The prisoner answered that he was prepared with sufficient funds, all but 3001., and that he expected to get the loan of that sum from a friend. The prosecutor expressed his willingness to advance the 3001. himself, and ultimately did so, but the prisoner, instead of taking up the bill, applied the 300l. to his own purposes, and suffered the bill to be dishonored, and the prosecutor eventually had to pay it. Evidence was also given, that at the time the prisoner obtained the money, he was not in possession of funds sufficient to make up the balance between the 2,6381. and the 300Z., but was in insolvent circumstances. For the prisoner it was contended

(a) Eng. Com. Law Rep. xi. 518. (b) Id. xxxii. 766.