of the prisoner. Evidence was admitted to prove that the prisoner, a few days afterwards, offered a chain similar in appearance to another pawnbroker, requesting him to advance 10s. upon it. Objection was

made to the admission of this evidence. Twenty-six similar chains were found on the person of the prisoner when he was apprehended. An assayer proved that these chains were not silver, and that the chain pledged was not silver. They were all made of a composition worth about a farthing an ounce, and each chain was of much less value than 10s. The jury were told that as the money had not been obtained by the prisoner's statement, the completion of the offence charged in the indictment was not proved; but that if they were satisfied of the fraudulent intent of the prisoner, and that if his design was to obtain the money by means of his false statement, they might convict the prisoner of an attempt to commit the misdemeanour charged against him in the indictment. The jury accordingly found the prisoner not guilty of the misdemeanour charged in the indictment, but guilty of an attempt to commit the same. The prisoner was also tried on another indictment, on a similar charge, with a similar result. prisoner was sentenced on each indictment to twelve calendar months' imprisonment, the term to commence at the same time under both these sentences. He is still in custody in Liverpool Borough Gaol.

The

The questions submitted to this Court were, whether there was any false pretence within the meaning of the statute 7 & 8 Geo. 4. c. 29; whether the evidence objected to was properly received (1); and whether the prisoner was properly convicted of the attempt to commit the misdemeanour charged against him.

No one appeared for the prisoner.
Brett, for the prosecution (2).-The pri-

(1) There was no argument on the admissibility of the evidence. The point was not adverted to in the judgment.

(2) The case was argued, first on Nov. 24, 1855, before Jervis, C.J., Parke, B., Wightman, J., Cresswell, J. and Willes, J.; and, secondly, Nov. 30, 1855, before Lord Campbell, C.J., Jervis, C.J., Parke, B., Alderson, B., Wightman, J., Cresswell, J., Erle, J., Platt, B., Williams, J. Crompton, J. and Willes, J.

soner was properly convicted of the offence of attempting to obtain money by false pretences. He had done all that lay upon him to complete the offence-The Queen v. Eagleton (3). Had the pawnbroker advanced the money upon the pretence, it would have been an obtaining money by means of the false pretence.

[PARKE, B.-Does the statute apply to the case where the false representation is only as to the value of the thing offered?]

[JERVIS, C.J.-Is not the case within the words of the act of parliament, and the construction put upon it by the authorities ?]

It would be objected, on the part of the prisoner, that the money would not have been obtained by means of the false pretence, supposing it had been relied on by the pawnbroker, but by means of the contract founded on it, and by the handing over the chain; but it is submitted that it is a question for the jury in each case, whether the money is advanced upon the faith of the contract or upon the false pretence. It is not true as a universal proposition that the money cannot be said to be advanced upon the false pretence when there is a contract.

[CRESSWELL, J.-Suppose a man tenders wheat for sale at market and says, "I got 100s. a quarter for wheat of this sort at Leeds market the other day, and by this statement induces another to give him 100s. a quarter, is he indictable for obtaining money by false pretences, if the statement be false?]

[PARKE, B.-It would be very alarming if a man could be indicted and transported for warranting a horse sound which he knew to be unsound. Suppose he did not warrant it, but said it was sound, knowing it was unsound.]

He would be indictable.

[JERVIS, C.J.-Is not the true question this, whether we are to relax the law to suit a dishonest system of trade, or whether we ought not rather to enforce the law, and reform the rules of trading?]

The authorities support this conviction.

(3) 1 Dears. C.C. 376, 515; s. c. 24 Law J. Rep. (N.S.) M.C. 158.

The Queen v. Kenrick (4) is good law. The prosecutor relied on the prisoner's false statement. If without it he would not have bought the horse, the money for the price of the horse was obtained from him by means of the false pretence.

[JERVIS, C.J.-The contract can make no difference. It is voidable by reason of the fraud.]

In The Queen v. Abbott (5) the prisoner had induced the prosecutor to buy a cheese, pretending that the good tasters which he produced were part of it, when, in fact, the cheese was of very inferior quality. The conviction was decided to be good by all the Judges upon consideration, and after the objection was taken, and The Queen v. Kenrick was confirmed. That case is precisely in point.

[PARKE, B.-In that case we relied on the authority of The Queen v. Kenrick. If that be bad law, The Queen v. Abbott cannot be supported.]

The same objection, that the money was obtained by a contract and not by the false pretence might, if valid, have been taken in The Queen v. Copeland (6), and also in The Queen v. Adamson (7), where the prisoner, by falsely representing that he had been appointed an emigration agent, induced the prosecutor to enter into a contract by deed, and pay him a sum of money.

[CRESSWELL, J.-There the prisoner induced the prosecutor to contract for the purchase of something which he did not possess. But the difficulty with some of the Courts in this case is, that here the prisoner offers a particular thing which he has, though he makes a misrepresentation as to its quality.]

[JERVIS, C.J.-If I ask a man for a carriage and he professes to sell me one, and I pay him for it beforehand, and he has not got one, it is admitted that he obtains money from me by false pretences; but if I ask him for a gold chain and he sells me a brass one for gold, and gives it me for a gold one, it is said that this

(4) 5 Q.B. Rep. 49; s. c. 12 Law J. Rep. (N.S.) M.C. 135.

(5) 1 Den. C.C. 273.

(6) Car. & M. 516.

(7) 2 Moo. C.C. 286.

is not an indictable false pretence. I do not see the distinction.]

[PARKE, B.-In the one case you get nothing, in the other you get something, but not exactly what you wanted. Indictments would be much multiplied if variance between the thing contracted for and the contract made a man indictable.]

Offering a cheque drawn by the prisoner on a banker where he had no account as a good order for the payment of the sum named in it and as of the value of that sum, was held a sufficient false pretence within the statute in The Queen v. Parker (8). So also uttering a forged note as genuine The King v. Freeth (9). So, where the prisoner induced the prosecutor to purchase a bottle of medicine by falsely pretending that he was the person who had cured a particular patient-The Queen v. Bloomfield (10), and the result was the same when the false pretence was that the prisoner was connected with a particular firm-The Queen v. Archer (11). Pledg ing pewter ingots for silver has been held an offence within the act-The Queen v. Stevens (12). So, also, selling spurious blacking as the blacking made by a particular personThe Queen v. Dundas

(13).

[CRESSWELL, J.-In one old case it was held that selling a chain as standard gold was not an offence, though it might be an offence to use a false token as a false assay mark.]

Under the old statutes, unless a false token was used the fraud was not indictable. The act now in force is different. Obtaining money by offering a bank of elegance note as a bank note has been held indictable-The Queen v. Wells (14). The Queen v. Coulson (15) is to the same effect.

[CAMPBELL, C.J.-There the prosecutor obtains nothing for his money but a piece of paper that has no value.]

(8) 7 C. & P. 825.

(9) Russ. & R. C.C. 127. (10) Car. & M. 537.

(11) 1 Dears. C.C. 449.

(12) 1 Cox, 83.

(13) 6 Ibid. 380.

(14) Kent Assizes, 1840, coram Littledale, J. (15) 1 Den. C.C. 592.

Still it might be said there, as well as in this case, that the prosecutor advanced his money, not only on the representation of the prisoner, but on the handing over to him of the paper. The case of The Queen v. Ball (16) is in point. The prisoner there attempted to pledge thimbles made of base metal as silver. It is stated that this decision had the sanction of some of the Judges. The King v. Reed (17) might be urged in favour of the prisoner, but there is some mistake about it, for Lord Denman, C.J. says in Hamilton v. the Queen (18) that he is sure that The King v. Reed never went before the Judges. The King v. Codrington (19), which might be cited contrà, has been overruled by The Queen v. Kenrick.

[PARKE, B.-If a man sells a publichouse with the good will, alleging that it sold ten barrels of beer a week, and the house, in fact, only sold nine and a half barrels a week, would this be an indictable offence?]

It would be a question for the jury. If he knew it, he would be guilty. The fact of there being a civil remedy on the contract does not prevent the act being a criminal offence also.

[ALDERSON, B.-Can it be said that a man obtains money by the false pretence when he obtains it through the medium of a contract? In truth, the man does not obtain money by the false pretence, but a bargain.]

A person who put on an undergraduate's dress at Oxford to obtain goods from a tradesman was held indictable - The King v. Barnard (20). A man is not indictable for every lie he tells; but if he makes a false statement as to an existing fact, and thereby obtains money, he is indictable.

[ALDERSON, B.-Is not the statement respecting the value of goods a statement respecting an existing fact?]

No: it is mere matter of opinion.
Cur, adv. vult.

Judgment was now delivered as follows.LORD CAMPBELL, C.J.-I am of opinion that both upon principle and upon the authority of decided cases this conviction is right. Had the question been res integra, I should not have concurred in the decision of The Queen v. Abbott, for I think that the intention of the prisoner there was not to get possession of the money animo furandi, but simply to get a better bargain by means of his false pretence. The cheese was merely not of so good a quality as it appeared to be, but ten Judges having decided the case, I feel bound by their decision. In the present instance, however, the chain not being silver, and not being the article which it was represented to be, the case comes clearly upon principle within the act of parliament respecting false pretences. It is like the case where a man passes a flash note as a real bank note. There is, as here, some little value in the article given, but no real value.

JERVIS, C.J.-I agree in the general result that this conviction is good, and I go the full length of saying that I think it ought to be supported. I know that many of the Judges concur in the decision because they feel themselves bound by the authorities. But to say that they do not concur in the authorities while they express themselves bound by them tends, I think, to throw doubt upon the authorities themselves.

ALDERSON, B.-I concur in the decision that the conviction must be maintained. I yield to the authority of the decided cases, though I do not agree with them.

CRESSWELL, J.-I am of opinion that this conviction is right upon the authority of the cases.

WHITEMAN, J.—I am of the same opinion.

CROMPTON, J.-On the authority of the decisions, I agree that the conviction is right. I should have concurred entirely, if the jury had found that the chain was of no value.

The rest of the COURT concurred.

Conviction affirmed (21).

(16) Car. & M. 249.

(17) 7 C. & P. 848.

(18) 9 Q. B. Rep. 271; s. c. 16 Law J. Rep. (N.s.)

M.C. 9.

(19) 1 C. & P. 661.

(20) 7 Ibid. 784.

(21) Parke, B. had left the Bench before this judgment was given.

The prisoner was tried, before Bliss, Q.C., at the York Assizes, on the 20th of July 1854, on an indictment charging him with having obtained from William Tritson a banker's cheque of the value of 80., by falsely pretending that a certain house and workshop had been built on certain land mentioned in a lease, which was deposited with the prosecutor, W. Tritson, by way of mortgage. The evidence adduced against the prisoner was as follows: William Tritson, the prosecutor. -I am a solicitor living at Sheffield: last year the prisoner employed me professionally to prepare a contract for building a house and workshop upon land near Sheffield. In December last, early in the month, the prisoner came to me and asked me for a loan of 801. He told me the builder had finished the house and workshop, and that he, the prisoner, was short of money to pay in a day or two. On the 8th of December he (the prisoner) came again and brought me the lease.-[The lease was put in and read, dated the 13th of August 1853, from the Governors of the Free Grammar School Estates to the prisoner.] There is a plan in the margin. The property is also described as in a new street called Greaves Street, and with metes and bounds. The prisoner left it (the lease) with me, and he said, "I have built a very capital house on the land and some workshops, and it is a very nice piece of land. Can you lend me the 80%. on it without putting me to the expense of a formal mortgage? They are worth near NEW SERIES, XXV.-MAG. CAS.

300l., and I hope you will save me the expense of a mortgage." The prisoner said also, that he had to pay the builder for some extras; that there was a dispute about them; and that he owed a little something on the original contract for building. I in consequence said I could let him have the money on the deposit of the lease, and on an agreement to execute a mortgage on my request, and also on his bond. I prepared a memorandum of deposit-[the agreement, which stated that the prisoner agreed to execute a mortgage of the premises comprised in the lease, and the dwelling, workshops and other buildings erected thereon]. The prisoner called the next day, and signed the agreement. I gave him the cheque. I was induced to give it him on the representation that the house and workshop were worth 3007., and were built upon the piece of land in the lease; and in February last, at the end of the month, I made inquiry about the land. I sent for the prisoner and said to him, "You have been committing a very gross fraud. The house and workshops which you said you had built on this land are built on another piece, and you have mortgaged them to another solicitor for 250l., and there is nothing built on the land in the lease deposited with me." The prisoner said, "I know that I have been very wrong. I hope you will forgive me." I said "No; it is false pretences." He said "he hoped to be able to bring the money back again before I found it out." On cross-examination.-The land is two and a half miles from Sheffield, where I live. The land adjoins the land on which the house and workshops are built. There is nothing to distinguish or separate the lands. When I prepared the contract for building, we had some conversation about it. He, the prisoner, said the builder had finished the house and shop, and had made a very good shop. I never went to the place before advancing the money. The land if so built upon would have been ample security. The house and shop were sold for 2501. The prisoner signed the bond and agreement before I gave him the cheque. [The bond, agreement and cheque were put in and read for the prosecution.] It is usual to take a bond as

Р

well as a mortgage, or an agreement for it. The prisoner cried very much when I said I had found it out. I would not have given him the money unless he had signed the bond and agreement and deposited the lease. Nor would I have given him the money on his bond, agreement and deposit of lease, unless for the false pretence that the house and shop had been built upon the land.

John Townsend.-I am surveyor of the Grammar School Estates. I have seen the lease and plan, and read the description, and I have seen the land there mentioned, and there is no building upon it. The land is of less value without buildings. The land is worth as building land 3s. 4d. per yard per annum. The house and shop are on the adjoining land.

Cross-examination.-I set out the land. I could not find the land in question by the description in the lease. I knew Mr. Tritson. I am known as the surveyor of this estate.

John Webster, solicitor, Sheffield, produced the mortgage and lease of land with house and shop on it from the prisoner to the witness.

Upon this evidence it was contended, on the part of the prisoner, that the proximate cause of obtaining the cheque and money was the bond and the agreement, and that the false pretence was only an antecedent inducement to the prosecutor to enter into these contracts, and lend the money upon such securities; and there being no question of the bona fides of the transaction of loan, except the false pretence that preceded, the jury ought to be directed that the evidence proved that the money or cheque was not obtained upon the false pretences stated in the indictment. Bliss, Q.C. directed the jury that if they believed the witnesses, there was sufficient evidence of the offence charged in the indictment; but reserved the point as to the propriety of the conviction, on which he requested the opinion of the Court of Criminal Appeal.

The case was argued (Feb. 3), before Jervis, C.J., Parke, B., Wightman, J., Maule, J., Cresswell, J. and Crowder, J., by

Bell, for the prisoner.-The money was

not obtained on the verbal false representation of the prisoner, but on the deposit of the lease and bond. The King v. Coddrington (1) is quite in point. That case is not overruled by The Queen v. Kenrick (2) or The Queen v. Abbott (3). Secondly, it is submitted, that obtaining money by way of a loan by means of a false pretence is not an offence within the statute-The Queen v. Crossley (4) and 2 Russell on Crimes, 305. The maxim caveat emptor applies.

Hardy, for the prosecution.-If the prosecutor was induced to part with his money by reason of the false pretence, the offence within the statute was completed. The fact that the false pretence leads to a contract, under which the money is advanced, does not make it the less an obtaining money by false pretences. The prisoner alleges that he will mortgage the house upon the land for the loan. The false representation is contained also in the memorandum of agreement. This case is similar in principle to The Queen v. Abbott, where the prisoner induced the prosecutor to buy an inferior cheese by producing to him tasters of good cheese, as part of it. The King v. Coddrington has always been considered overruled. The Queen v. Adamson (5) and Hamilton v. The Queen (6) are in point.

[PARKE, B.-Here the prosecutor gets a quid pro quo in part for his money. He gets the lease.]

So, in the cheese case, the prosecutor got something for his money.

[CROMPTON, J.-Suppose the prisoner had said, I have built a house on the land, with good drains, and it had happened that he built the house, but knew that the drains were not good, would he have been indictable?]

A person is indictable for selling a chain of inferior metal for gold. Bell replied.

(1) 1 Car. & P. 661.

Cur. adv. vult.

(2) 5 Q.B. Rep. 49; s. c. 12 Law J. Rep. (N.S.) M.C. 135.

(3) 1 Den. C.C. 273. (4) 2 Moo. & R. 17. (5) 2 Moo. C.C. 286.

(6) 9 Q.B. Rep. 271; s. c. 16 Law J. Rep. (N.S.) M.C. 9.