2. That by virtue of his office or employment, he was entrusted with the receipt, custody, management, or control of the money, chattel, or valuable security which he embezzled. If it be proved that he was usually so entrusted, it will be presumed that it was by virtue of his employment. R. v. Townsend, Car. & M. 178. Under the term "money" in the indictment, you may give in evidence any species of coin, bank-notes, or any of the securities for money mentioned ante, pp. 391, 392. See 2 W. 4, c. 4, s. 2. But if the embezzlement be a chattel, it must be named in the indictment, in the same manner as in larceny, and proved as laid.

3. The embezzlement.

See ante, p. 455.

11. Cheating or Defrauding.

Obtaining Money by false Pretences.

Indictment.

The jurors for our Lady the Queen upon their

to wit. Soath present, that A. B., on the day of in the year of our Lord unlawfully and knowingly did falsely pretend to C. D., that [he the said A. B. was sent to him the said C. D. by E. F., one of his neighbours, to request the loan of five pounds, and that he the said E. F. would repay the same to him the said C. D. on the next following day,or as the pretence may be]: by which said false pretences the said A. B. then unlawfully did obtain from the said C. D. certain money of him the said C. D. ["chattel, money, or valuable security." If a chattel, state it as in larceny-of the goods and chattels of the said C. D.,] with intent to defraud: whereas in truth and in fact [the said A. B. was not sent to him the said C. D. by the said E. F. to request the loan of five pounds, or any other sum of money]; and whereas in truth and in fact [the said E. F. did not say, or send the said A. B. to the said C. D. to say, or desire him to say, that he would repay the same to him the said C. D. on the next following day]-as he the said A. B. did then so falsely pretend to the said C. D.; and the said A. B., at the time he so falsely pretended as aforesaid, well knew the said pretences to be false: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [As to the venue, see ante, p. 70. Several persons may be indicted jointly for the offence; and where goods were obtained by false pretences,

ing by words spoken by one of the parties in the others, but all of them were acting in holden that they might be jointly indicted. al., 3 T. R. 98. The indictment must specify ~Jalse pretences, R. v. Munoz, 2 Str. 1127. R. v. Mason, 2 T. R. 531, as in the above form; but if the pretence be in writing, it is not necessary to set it out in hæc verba, unless some question turn upon the form of the instrument; it is sufficient to state the pretence in substance, as it appears in the writing. R. v. Coulson et al., 19 Law J. 182 m. It has been usual to state in the indictment that the defendant “unlawfully" did falsely pretend; but the word "unlawfully" is not necessary, not being required by the statute, which defines the offence thus,-" if any person shall by any false pretence obtain any chattel, money, or valuable security, with intent to cheat or defraud." It has been holden to be necessary to state that the defendant did "knowingly" by false pretences, &c.; R. v. Henderson et al., Car. & M. 328. R. v. Philpotts, 1 Car. & K. 112; but the authority of these cases perhaps may be doubted; a former statute upon the subject, 30 G. 2, c. 24, s. 1, did require it, the words being. "that all persons who knowingly and designedly by false pretences," &c., but this statute is not so; and it has lately been decided that the omission of the word "unlawfully," is no objection after verdict, although the evidence ought to be such as to imply that the defendant knew the pretence to be false. R. v. Bowen, 19 Law J. 65 m.

If money, or notes of the Bank of England or any other bank have been obtained, it is sufficient to describe them by the word "money." 13 & 14 Vict. c. 100, s. 18, ante, p. 90. If it be a written instrument of any kind which has been obtained, it is sufficient to describe it by the name or designation by which it is usually known. Id. s. 5, ante, pp. 89, 90. But the thing obtained must be stated to be the property of some person, as in larceny. R. v. Norton, 8 Car. & P. 196.

As to the intent, it is sufficient now to state it to be "to defraud," without stating the intent to be to defraud any particular person. 14 & 15 Vict. c. 100, s. 8, ante, p. 87.

The indictment must negative the pretences by special averment, R. v. Perrot, 2 M. & S. 379, as in the above precedent.

Misdemeanor; transportation for seven years ;—or such other punishment by fine or imprisonment, or both, as the court shall award, 7 & 8 G. 4, c. 29, s. 53, the imprisonment to be with or without hard labour, and solitary for the whole or any portion of the time. Id. s. 4.

Evidence.

To maintain this indictment, the prosecutor must prove

1. The pretence. Before I state the cases which have been decided upon this subject, it may be convenient here to notice a few general principles, which have been laid down and well established, upon it:

First, the pretence must consist of a statement of some pretended existing fact, made for the purpose of inducing the prosecutor to part with his property; no statement of any thing to take place in future, will be a pretence within the Act. Where a man induced a butcher to send him meat, upon pretence that he would pay for it on delivery: the judges held that this was not a pretence within the Act, it was merely a promise for future conduct. R. v. Goodall, R. & Ry. 461. But where four persons were indicted for falsely pretending that one of them had made a bet with a colonel at Bath, of five hundred guineas, that another of them would run ten miles within the hour, and thereby obtained twenty guineas from the prosecutor as part of the pretended stakes; and, upon a writ of error, it was objected that as the pretended bet related to a future event, it was not within the Act: but the court held that the alleged bet, and not the race, was the pretence it was also objected that the indictment was not sufficiently certain, in merely stating "a colonel at Bath," without naming him; but the court held it sufficient, for probably he was not named by the defendants: and it was lastly objected that the person alone who uttered the false pretences could be convicted, and that the others ought to have been acquitted; but the court held that as all were present and acting in the deceit, they were all equally guilty. Young et al. v. Rex in error, 3 T. R. 98.

Secondly, it is not necessary that the pretence should be in words; there may be a sufficient false pretence within the meaning of the Act, to be implied from the acts and conduct of the party, without any verbal representation of a false or fraudulent nature. Where a man at Oxford, not a member of the university, went to a tradesman's shop, wearing a commoner's cap and gown, and ordered goods, part of which he obtained at the time: this was holden by Bolland, B., to be good evidence to sustain an indictment, alleging that he falsely pretended that he was an undergraduate of the University of Oxford. R. v. Barnard, 7 Car. & P. 784. So, where the prisoner in payment for some small articles, tendered in payment a forged promissory note for ten shillings and sixpence and received the change; and being indicted as for obtaining the goods and money by false pretences, (notes under twenty

shillings being declared void by statute, and not being the subject of a prosecution for forgery), it was objected that here there was no representation made by the prisoner, no false suggestion of a fact, the fraud being in the fabrication of the instrument, and not in the representation of the prisoner: but the judge being of opinion, that the uttering of the note as a genuine instrument, was tantamount to a representation that it was so, the prisoner was convicted; and a majority of the judges afterwards held the conviction to be right. R. v. Freeth, R. & Ry. 127. But where the forged instrument may be made the subject of a prosecution for forgery, the party should not be indicted for false pretences; and where a man obtained goods by a forged request note, in this form, "Mr. Brooks, please to let the bearer, Wm. Turton, have for J. Roe, four yards of Irish linen and a waistcoat, John Roe," and was indicted as for obtaining the goods by false pretences, Taunton, J., held that he could not be convicted, for it was a felony. R. v. Evans, 5 Car. & P. 553. But now if upon an indictment for a misdemeanor the evidence prove a felony, the defendant shall not on that account be acquitted, unless the court think proper to discharge the jury, and order him to be prosecuted for the felony. 14 & 15 Vict. c. 100, s. 12, ante, p. 124. Where a man of the name of Story, presented a post-office order payable to one Storer, to the postmaster for payment, and being desired to write his name upon it, wrote his real name and was paid: being indicted for obtaining the money by a false pretence, it was objected that as the prisoner had merely presented the order for payment, without making any untrue declaration or assertion, it was not a case within the meaning of the statute; but the judges held that by presenting the order for payment, and signing his name at the post-office, he had represented himself to the postmaster as the person named in the order, and that such representation was clearly a pretence within the meaning of the Act. R. v. Story, R. & Ky. 81. Where a man passed a note of a country bank, which he knew had stopped payment, and was indicted for obtaining goods under false pretences; but it appearing that one of the partners was solvent, Gaselee, J., held that the prisoner could not be convicted. R. v. Spencer, 3 Car. & P. 420. Where a man paid his addresses to a woman and obtained from her a promise of marriage, and afterwards upon her refusing to marry him, he threatened to bring an action against her, and thereby obtained money from her; but it turned out afterwards that he was already married, and therefore could not have maintained such an action: this was holden to amount to an implied pretence that he was unmarried, and he was convicted of obtaining the money by that false pretence. R. v. Copeland, Car. & M. 516. If a man in the purchase of goods, give his own cheque in payment, and it be

drawn on a banker with whom he never had an account: this is a false pretence, for it is impliedly a pretence that he has an account at that banker's. R. v. Parker, 7 Car. & P. 825.

Thirdly, in order to convict a man of obtaining money or goods, &c., by false pretences, it must be proved that they were obtained under such circumstances that the prosecutor meant to part with his right of property in the thing obtained and not merely with the possession of it; if the prosecutor part with the possession only, and not the right of property, we have seen (ante, p. 372) that the offence is larceny, and not an obtaining of property by false pretences. The reader will find a number of cases, illustrating this distinction, collected under the title " Larceny," ante, p. 372-379. However, a mistake in this respect, is not now of so much importance as formerly; for by stat. 7 & 8 G. 4, c. 29, s. 53, if upon an indictment against a person for obtaining goods, &c., by false pretences, "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 aequitted of such misdemeanor." And therefore in cases of doubt, whether the right of property or only the possession passed, it is always advisable to indict for obtaining the property by false pretences, instead of for larceny. See ante, p. 379.

Having noticed these general principles, I shall now proceed to notice the decisions as to what amounts to a pretence within the meaning of the statute. And first, as to cases where the offender, by making a false representation of himself, induces the prosecutor to part with his property :-Where the prisoner, by falsely pretending that he was Mr. Hitchings, who cured Mrs. Clark at the Oxford Infirmary, obtained from a person five shillings for a bottle of eye-water: this was holden to be a false pretence within the Act. R. v. Bloomfield, Car. & M. 537. Secondly, where goods, &c., are thus obtained, by using a third party's name, without any authority from him to do so: as for instance, if a man, by falsely pretending that he was sent to the prosecutor for goods by one of his customers, or for the amount of a debt by one to whom he owed it, or for a loan of money by one of the prosecutor's friends, or the like, obtain the goods or money,-such a case would come within the statute. Where the prisoner went to a tradesman's shop, and falsely said that her mistress, Mrs. Cook, a neighbour, would be obliged to him to let her have half a guinea's worth of silver, and that she would send the half-guinea presently: the prisoner obtained the money, and being indicted as for larceny, it was holden not to be lar ceny, but an obtaining of the money under false pretences. Colman's case, 2 East, P. C. 672. 1 Leach, 339, ante, p. 377. And lastly, where a man is induced to part with his