CHAPTER X.

OBTAINING PROPERTY BY FALSE PRETENCES.

SECTION I.

The Question of Title.

REGINA v. KILHAM.

CROWN CASE RESERVED. 1870.

[Reported Law Reports, 1 Crown Cases Reserved, 261.]

CASE stated by the Recorder of York.

Indictment under 24 & 25 Vict. c. 96, § 88, for obtaining goods by false pretences.

The prisoner was tried at the last Easter Quarter Sessions for York. The prisoner, on the 19th of March last, called at the livery stables of Messrs. Thackray, who let out horses for hire, and stated that he was sent by a Mr. Gibson Hartley to order a horse to be ready the next morning for the use of a son of Mr. Gibson Hartley, who was a customer of the Messrs. Thackray. Accordingly, the next morning the prisoner called for the horse, which was delivered to him by the hostler. The prisoner was seen, in the course of the same day, driving the horse, which he returned to Messrs. Thackray's stables in the evening. The hire for the horse, amounting to 7s., was never paid by the prisoner.

The prisoner was found guilty.

The question was, whether the prisoner could properly be found guilty of obtaining a chattel by false pretences within the meaning of 24 & 25 Vict. c. 96, § 88.

The case of Regina v. Boulton, 1 Den. C. C. 508, was relied on on the part of the prosecution.

The case was argued before Bovill, C. J., Willes, Byles, and Hannen, JJ., and Cleasby, B.

May 7. No counsel appeared for the prisoner.

Simpson, for the prosecution.1

1 The argument is omitted.

BOVILL, C. J. We are of opinion that the conviction in this case cannot be supported. The Stat. 24 & 25 Vict. c. 96, § 88, enacts that, "whosoever shall, by any false pretence, obtain from any other person any chattel, money, or valuable security, with intent to defraud, shall be guilty of misdemeanor." The word "obtain" in this section does not mean obtain the loan of, but obtain the property in, any chattel, etc. This is, to some extent, indicated by the proviso, that if it be proved that the person indicted obtained the property in such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted; but it is made more clear by referring to the earlier statute from which the language of § 88 is adopted. 7 & 8 G. IV. c. 29, § 53, recites that " a failure of justice frequently arises from the subtle distinction between larceny and fraud,'" and for remedy thereof enacts that "if any person shall, by any false pretence, obtain," etc. The subtle distinction which the statute was intended to remedy was this: That if a person by fraud induced another to part with the possession only of goods and converted them to his own use, this was larceny; while if he induced another by fraud to part with the property in the goods as well as the possession, this was not larceny.

But to constitute an obtaining by false pretences it is equally essential, as in larceny, that there shall be an intention to deprive the owner wholly of his property, and this intention did not exist in the case before us. In support of the conviction the case of Regina v. Boulton was referred to. There the prisoner was indicted for obtaining by false pretences a railway ticket with intent to defraud the company. It was held that the prisoner was rightly convicted, though the ticket had to be given up at the end of the journey. The reasons for this decision do not very clearly appear, but it may be distinguished from the present case in this respect, that the prisoner, by using the ticket for the purpose of travelling on the railway, entirely converted it to his own use for the only purpose for which it was capable of being applied. In this case the prisoner never intended to deprive the prosecutor of the horse or the property in it, or to appropriate it to himself, but only intended to obtain the use of the horse for a limited time. The conviction must therefore be quashed.

Conviction quashed.1

1 See Reg. v. Watson, 7 Cox C. C. 364. - ED.

REX v. ADAMS.

CROWN CASE RESERVED. 1812.

[Reported Russell & Ryan, 225.]

THE prisoner was tried before Mr. Justice Chambre, at the Lent Assizes held at Taunton, in the year 1812, for a grand larceny in stealing a hat, stated in one count to be the property of Robert Beer and in another count to be the property of John Paul.

The substance of the evidence was, that the prisoner bought a hat of Robert Beer, a hat-maker at Ilminster. That on the 18th of January he called for it, and was told it would be got ready for him in half an hour, but he could not have it without paying for it.

While he remained with Beer, Beer showed him a hat which he had made for one John Paul; the prisoner said he lived next door to him, and asked when Paul was to come for his hat, and was told he was to come that afternoon in half an hour or an hour. He then went away,

saying he would send his brother's wife for his own hat.

Soon after he went he met a boy to whom he was not known. The prisoner asked the boy if he was going to Ilminster, and being told that he was going thither, he asked him if he knew Robert Beer there, telling him that John Paul had sent him to Beer's for his hat, but added that as he, the prisoner, owed Beer for a hat which he had not money to pay for, he did not like to go himself, and therefore desired the boy (promising him something for his trouble) to take the message from Paul and bring Paul's hat to him the prisoner; he also told him that Paul himself, whom he described by his person and a peculiarity of dress, might perhaps be at Beer's, and if he was the boy was not to go in.

The prisoner accompanied him part of the way, and then the boy proceeded to Beer's, where he delivered his message and received the hat, and after carrying it part of the way for the prisoner by his desire, the prisoner received it from him, saying he would take it himself to Paul.

The fraud was discovered on Paul's calling for his hat at Beer's, about half an hour after the boy had left the place; and the prisoner was found with the hat in his possession and apprehended.

From these and other circumstances, the falsity of the prisoner's representation and his fraudulent purpose were sufficiently established; but it was objected on the part of the prisoner that the offence was not larceny, and that the indictment should have been upon the statute for obtaining goods by false pretences.

The prisoner was convicted, but the learned judge forbore to pass sentence, reserving the question for the opinion of the judges.

In Easter term, 25th of April, 1812, all the judges were present (except Lord Ellenborough, Mansfield, C. J., and Lawrence, J.), when they held that the conviction was wrong; that it was not larceny, but obtaining goods under a false pretence.1

THE following case was reserved by the Recorder of Liverpool. The prosecutor, who resided at Hartlepool, was the owner of two dogs, which he advertised for sale. The prisoner, Samuel Robinson, having seen the advertisement, made application to the prosecutor to have the dogs sent to him at Liverpool on trial, falsely pretending that he was a person who kept a man-servant. By this pretence the prosecutor was induced to send the dogs to Liverpool, and the prisoner there obtained possession of them with intent to defraud, and sold them for his own benefit. The dogs were Pointers, useful for the pursuit of game, and of the value of £5 each.

At the Liverpool Borough Sessions, holden in December, 1858, the prisoner was indicted, convicted, and sentenced to seven years penal servitude, under the statute 7 & 8 G. IV. c. 29, s. 53.

On behalf of the prisoner a question was reserved and is now submitted for the consideration of the justices of either bench and barons of the Exchequer, viz., whether the said dogs were chattels within the meaning of the said section of the statute, and whether the prisoner was rightly convicted.

The prisoner remains in Liverpool Borough Gaol under the sentence. passed at Sessions.

GILBERT HENDERSON,

Recorder of Liverpool.

This case was argued, on January 29, 1859, before Lord Campbell, C. J., Martin B., Crowder, J., Willes, J., and Watson, B.

Brett appeared for the Crown, and Littler for the prisoner.

1 Acc. Reg. v. Butcher, 8 Cox C. C. 77; People v. Johnson, 12 Johns. 292. And see Com. v. Jeffries, 7 All. 548. See the judgment of Cleasby, B., in Reg. v. Middleton, L. R. 2 C. C. 38, ante. As to the title to property obtained by false pretences, see Lindsay v. Cundy, 1 Q. B. D. 348, 2 Q. B. D. 96, 3 App. Cas. 459; Bentley v. Vilmont, 12 App. Cas. 471. ED.

2

Arguments of counsel are omitted.

LORD CAMPBELL, C. J. It is admitted that dog-stealing is not larceny at common law, and a specific punishment of a milder character has been enacted by the later statute, which makes the offence a misdemeanor. That being so, it would be monstrous to say that obtaining a dog by false pretences comes within the statute 7 & 8 G. IV. c. 29, s. 53, by which the offender is liable to seven years penal servitude. My brother Coleridge used to say that no indictment would lie under that section unless, if the facts justified it, the prisoner could be indicted for larceny, and that is now my opinion.

MARTIN, B. I think this conviction cannot be sustained. The question is one entirely of the construction of the statute.

WILLES, J. From the Year Books downwards, including the case of Swans, 7 Rep. 15 b, dogs have always been held not to be the subject of larceny at common law.

The other learned judges concurred.

Conviction quashed.1

PEOPLE v. THOMAS.

SUPREME COURT OF NEw York. 1842.

[Reported 3 Hill, 169.]

CERTIORARI to the Oneida General Sessions, where Thomas was convicted of obtaining money by false pretences, of one Jones. The case turned upon the sufficiency of the indictment, which charged substantially the following facts: Jones, having executed his negotiable note to Thomas for $28.28, dated the 19th of February, 1838, and payable one day after date, the latter, in March afterward, called for payment, falsely pretending to Jones that the note had either been lost or burned up; by which false pretences Thomas unlawfully, etc., obtained from Jones the sum of $28.28, with intent to cheat and defraud Jones; whereas in truth, etc., the note had not been lost or burned up, all which the said Thomas, when he made the false pretence and obtained the money, well knew, etc.

Evidence was given, at the trial, of the above facts; and also, that in March, 1840, Thomas negotiated the note, for value, to one Anson Shove, without apprizing the latter that it had been paid. The court below instructed the jury that the proof was sufficient to convict; to which the defendant's counsel excepted. A verdict was rendered, finding the defendant guilty.

C. Tracy, for the defendant.

T. Jenkins (district attorney), contra.

PER CURIAM. Non constat from the indictment, that Jones sustained any damage by the false representation; nor that there was an