imprisonment with hard labour for three months who unlawfully and wilfully uses any dredge or any net, instrument, or engine whatsoever, within the limits of any oyster-bed, laying, or fishery, being the property of any other person, and sufficiently marked out or known as such, for the purpose of taking oysters or oyster brood, although none shall be actually taken; or unlawfully and wilfully drags upon the ground or soil of any such fishery, with any net, instrument, or engine.

ARTICLE 357.

SOLICITING TO COMMISSION OF OFFENCES UNDER THE POST

OFFICE ACTS.

1 Every one commits a misdemeanor and is liable to imprisonment with hard labour for two years, who solicits or endeavours to procure any other person to commit a felony or misdemeanor punishable by the Post Office Acts.

17 Will. 4 & 1 Vict. c. 36, s. 36.

2 Ibid. s. 42.

CHAPTER XLI

1 OBTAINING PROPERTY BY FALSE PRETENCES AND OTHER CRIMINAL FRAUDS AND DEALINGS WITH

PROPERTY

ARTICLE 358.

OBTAINING GOODS, ETC., BY FALSE PRETENCES.

EVERY one commits a misdemeanor, and is liable upon conviction thereof to five years penal servitude, who

(a.) 2 by any false pretence obtains from any other person any chattel, money, or valuable security with intent to defraud, or who,

4

(b.) 3 with intent to defraud or injure any other person by any false pretence, fraudulently causes or induces any other person to execute any valuable security, or to write, impress, or affix his name, or the name of any other person,5 upon any paper or parchment, in order that the same may afterwards be made or converted into, or used or dealt with as, a valuable security.

It is not an offence to obtain by false pretences any chattel which is not the subject of larceny at common law, but it is immaterial whether such a chattel so obtained is or is not in existence at the time when the false pretence is made if the thing when made is obtained by the false pretence.

It is not an offence to obtain credit in a partnership account by false pretences as to the amount which a partner is entitled to charge against the partnership funds.

13 Hist. Cr. Law, 160-2.

224 & 25 Vict. c. 96, s. 88, as explained by the cases.

3 Ibid. s. 90. This section was meant to cover such cases as R. v. Danger, 1857, 7 Cox, C. C. 303; D. & B. 307, and greatly extends the old law on the subject. See Mr. Greaves's note to the section in his edition of the Acts.

4 "Make, accept, endorse, or destroy the whole or any part of."

5 "or of any company, firm, or co-partnership, or the seal of any body corporate, company, or society."

1

Illustrations.

(1.) 1 A obtains two pointers worth £5 each by a false pretence. This is not an offence within this Article.

(2.) 2 A orders a van from B, and gets it made and delivered by falsely pretending to be agent to a company. This is an offence, although the van was not in existence when the pretence was made.

(3.) 3 A travels as agent for his partners, and obtains commission from them by falsely pretending he has received orders. His commission would form a charge on the partnership funds. This is not an offence within this Article.

ARTICLE 359.

DEFINITION OF "FALSE PRETENCE."

The expression "false pretence," in Article 358, means a false representation made either by words, by writing, or by conduct, that some fact exists or existed, and such a representation may amount to a false pretence, although a person of common prudence might easily have detected its falsehood by inquiry, and although the existence of the alleged fact was in itself impossible.

But the expression "false pretence" does not include

(a.) a promise as to future conduct not intended to be kept, unless such promise is based upon or implies an existing fact falsely alleged to exist; or,

(b.) such untrue commendation or untrue depreciation of an article which is to be sold as is usual between sellers and buyers, unless such untrue commendation or untrue depreciation is made by means of a definite false assertion as to some matter of fact capable of being positively determined.

Illustrations.

(1.) A, not being a member of the University of Oxford,

1 R. v. Robinson, 1859, Bell, 34.

2 R. v. Martin, 1867, 1 C. C. R. 56.

3 R. v. Evans, 1862, L. & C. 755.

of this judgment.

I am unable to follow the reasoning

4 R. v. Barnard, 1837, 7 C. & P. 784. The defendant said he was a

represents himself to be such by wearing a student's cap and gown, and thereby obtaining a pair of straps from a tradesman in Oxford. This is a false pretence by conduct.

(2.) 1 A presents a note for £5 as a good note for that amount, knowing that the bank by which it was issued had stopped. This is a false pretence by conduct.

(3.) 2 A gives a cheque in discharge of a debt. This is a representation that A has authority to draw upon the bank for the amount of the cheque, and that the cheque is a good and valid order for the payment of money. If these representations are untrue to the knowledge of A, and if he intends to defraud and obtain goods by making them, he commits the offence of obtaining goods by false pretences, but the mere giving of a cheque is not necessarily a representation that the drawer has funds at the bank to meet it.

(4.) The secretary of an Odd Fellows' lodge tells a member that he owes the lodge 13s. 6d. and thereby obtains that sum from him, whereas in fact he owed only 28. 2d. This is a false pretence, though an inquiry might easily have been made.

(5.) A represents to B that A has power to bring back B's husband (who has run away) over hedges and ditches, and that a certain stuff which A has is sufficient and effectual for that purpose, and thereby obtains from B a dress and two sixpences. This is a false pretence, although the alleged fact is impossible.

(6.) A tells B that A is going to pay his rent on the 1st of March, and wants £10 to make up his rent, whereby he obtains £10 from B. This statement though false is not a false pretence, as it relates to something intended to be done at a future time.

member of Magdalen College, but Bolland, B., said he would have left the case to the jury on the mere wearing of the dress if nothing had been said.

1 Per Compton, J., in R. v. Evans, 1859, Bell, C. C. 192. The rest of the Court seemed to be of the same opinion.

2 R. v. Hazleton, 1874, 2 C. C. R. 134. See, too, R. v. Jackson, 1813, 3 Camp, 370; R. v. Parker, 1837, 2 Moo. 1. There was some slight difference of opinion (or rather of expression) amongst the judges in this case. The judges were anxious to point out that to give a cheque on a bank where the drawer has no balance is not necessarily an offence, as he may have a right to overdraw or a reasonable expectation that if he does his drafts will be honoured. These considerations would seem to affect not the falseness of the pretence, but the defendant's knowledge of its falsehood and his intent to defraud.

3 Woolley's Case, 1850, 4 Cox, C. C. 251; 1 Den. 559. See, too, R. v. Jessop, 1858, D. & B. 442.

4 R. v. Giles, 1865, L. & C. 502.

5 Lee's Case, 1863, L. & C. 309.

1

(7.) A falsely tells B that A has bought skins, and wants £4 10s. to fetch them by the railway, and that he will sell them to B if B will let A have the £4 10s. on account, which B does, partly because B believes that A has bought the skins, and partly because B believes that A will sell the skins to B. This is a false pretence, as part of it alleges falsely an existing fact.

(8.) A obtains money from B by promising to marry her, and to furnish a house with the money, representing himself to be an unmarried man. A in fact is married. The representation that A was unmarried is a false pretence, though the promises based upon it would not have been false pretences without it.

3

(9.) A tells B that A is prepared to give him £100 on his signing a document; on his doing so A refuses to give him more than £60. A's statement is a false pretence, because it is equivalent to a statement that the money was ready for B on his signing the paper.

(10.) A induces B to lend him money by saying that certain spoons are of the best quality, that they are equal to Elkington's A (a description known in the trade), that the foundation is of the best material, and that they have as much silver in them as Elkington's A. These words being construed as mere exaggeration of the quality of the spoons, and not as containing a statement of a definite fact as to the quality of silver in the spoons, are not a false pretence.

(11.) 5 A induces B to buy a chain by saying, "It is 15-carat gold, and you will see it stamped fine on every link. It was made for me, and I paid nine guineas for it. The maker told me it was worth £5 to sell as old gold." The chain had on every

1 R. v. West, 1858, D. & B. 575.

2 R. v. Jennison, 1862. L. & C. 157.

3 R. v. Gordon, 1889, 23 Q. B. D. 354.

4 R. v. Bryan, 1857, D. & B. 265. This, I think, is the true view of the case. Willes, J., and Bramwell, B., thought the conviction should be sustained on the ground that the representation that the spoons had as much silver on them as Elkington's A was a specific false pretence as to an existing fact. Ten other judges (Campbell, C.J., Cockburn, C.J., Pollock, C.B., Coleridge, Cresswell, Erle, Crompton, Crowder, JJ., and Watson and Channel, BB.) all said in different words that the language used was mere puffery. The principle does not appear to have been doubted. The case is often, but I think wrongly, supposed to decide that a misrepresentation as to quality cannot be a false pretence. This depends on the further question whether the representation is made by means of alleging the existence of a fact which does not exist. R. v. Foster, 1877, 2 Q. B. D. 301, is a later illustration of the principle of R. v. Bryan.

5 R. v. Ardley, 1871, 1 C. C. R. 301.