garb, obtained goods, it was held a sufficient false pretence to satisfy the statute, although no representation passed in words. (1)

A. was convicted of obtaining money from B., by falsely pretending that there was a person named A. Brient living at Holt, Trowbridge, who was a minister of religion, and had instituted a bona fide competition for the production of the greatest number of words from the word Bernardo, and had made arrangements to present prizes, of the respective amounts of £2, £1, and 10s., to the successful competitors, and had further arranged to give the proceeds derived from the entrance fees of competition, (after deducting the prizes) to Dr Bernardo's Home for Destitute Children; and the evidence that A. had so pretended was that he had inserted, in a newspaper, the following advertisement: -“ Bernardo, £2, £1, 10s., for the most words from Bernardo. Proceeds to go to Dr Bernardo's Home for Destitute Children Alphabetical lists with Is. 3d, to Revd. A. Brient, Holt, Trowbridge, Wilts." Held, affirming the conviction, that the words in the advertisement were reasonably capable of the construction put upon them in the indictment, and that it was a question for the jury whether A. intended B. to put that construction upon them. (2)

The jury may connect together representations made in several distinct conversations, supposing them to be in their nature connectible), and convict the defendant for obtaining money by means of false pretences made in the several conversations. (3)

With regard to proof of the falsity of the pretences made use of, it does not seem essential that they should all be proved. If so many of them as shew the falsity of the substance of the pretence be proved it would appear to be sufficient. Take, for instance, the following case; A. goes and says to B., a jeweller: "I am the clerk of C., who has sent me to pick out and get from you, a gold chain, for about the price of $25, which he says he will call and pay you in a few days; and by means of this representation A. obtains from B. a gold chain. Now, suppose, on the trial of A. for obtaining the chain by false pretences, it should turn out that A. was really the servant of C., and, that, therefore, there was nothing false about that part of his statement, still, if it were also to appear that he had received no instructions from C. to get the chain, and, that, after obtaining it, he converted it to his own use, the evidence would be sufficient to warrant his conviction.

It appears, also, that it is not necessary that the falsity of the pretences should be shown by direct evidence. Thus, where the pretences charged were that A. had a carriage and pair, which he expected down in a few days, and that he had large property abroad; and there was no direct evidence to shew that he had no carriage and no property abroad, but there was evidence shewing that three days before he made the pretences he was in another place assuming to be a man of position and wealth, although really in a destitute condition, and unable to pay his hotel and other bills, it was held that there was evidence from which the jury might infer that the pretences were false. (4)

Although it must be shewn that the defendant obtained the money or goods with intent to defraud, it is only necessary to shew a general intent to defraud; it is not necessary to allege, that the intent was to defraud any particular person; (5) and if the evidence shew that there was, on the part of the defendant, an intent to defraud, it will be sufficient.

The intent to defraud may be implied from the facts of the case. A. owed B. a debt of which B. could not obtain payinent, and C., B's servant, went to A's wife and obtained from her two sacks of malt by telling her that B. had bought them of A., and C. knew this to be false but took the malt to B., his

master, to enable him to thereby pay him the debt owing to him by B. Held, that C. could not be convicted of obtaining the malt by false pretences with intent to defraud. (1)

The fact that the defendant, at the time of obtaining goods by false pretences, intended to pay for them when able to do so, affords no defence. (2)

In a case in which the indictment averred an obtaining of a particular sum of money, with intent to defraud the prosecutor of the same, and it appeared that the intent was to defraud him of a part only of that sum, the rest of the amount being really due, it was held, nevertheless, that the prisoner might be convicted. (3)

On an indictment for attempting to obtain money by falsely pretending that a ring was composed of diamonds when in fact it was composed of crystals, it was held that, to shew the defendant's guilty knowledge and his intent to defraud, evidence was admissible of a false pretence, by the defendant, on a prior occasion, to another person that a chain was gold, whereas it was plated, and on another distinct occasion, that a ring was of diamonds, which it was not. (4)

Where, on a trial for obtaining by false pretences the verdict was one of guilty with these additional words," but whether there was any intent to defraud, the jury consider there is not sufficient evidence and therefore strongly recommend the prisoner to mercy," it was held that this was equivalent to a verdict of not guilty, as it negatived one of the most material ingredients in the offence, namely, the intent to defraud. (5)

The parting with the money or goods must have been induced by the false pretence; and, therefore, where A. made false representations to and thereby induced B., to sell him, A., some horses, but B., afterwards, on learning the falsity of the representations, entered into a new agreement in writing with the prisoner, it was held that the subsequent dealings repelled the idea that the prosecutor had parted with his property in consequence of the false pretence. (6)

A. was charged with obtaining, from B., a filly, by falsely pretending to be a gentleman's servant and to have lived at Bream and by also pretending that he had bought horses at Bream fair. It appeared that A. bought the tilly of B. at the price of £11, and that besides making the above false pretences, he told B. that he would come down to the "Cross Keys" and pay him B. stated in evidence that he parted with the filly, because he expected A. would come to the "Cross Keys" and pay him, and not because he believed that A. was a gentleman's servant, etc. Held, that A. was entitled to an acquittal. (7)

Where A. had fraudulently obtained, from B., some goods on approval, and had falsely represented to B. that she, A.. was the daughter of a Mrs S. A., of C.; but there was no evidence to shew that B. knew Mrs S. A. of C., or that the goods had not been delivered to A., before she made the false representation, or that the goods were parted with by B., on the faith of the false representation, it was held that the conviction of Å for obtaining the goods by false pretences could not be sustained. (8)

Where the defendant offered to pledge with a pawnbroker, a chain which he falsely represented to be silver, but the pawnbroker stated that he advanced money on it, not in consequence of defendant's statement but in reliance on its withstanding a test which he himself applied to it, it was held that the

(1) R. v Williams, 7 C. & P. 354.

(2) R. v. Naylor, L. R. 1 C. C. R. 4; 35 L. J. (M. C.) 61

(3) R. v. Leonard, 1 Den, 303; 2 C. & K. 514.

(4) R. v. Francis, L. R., 2 C. C. R., 128 ; 43 L. J. (M. C.) 97.

(5) R. v. Gray, 17 Cox. C. C. R., 299.

(6) R. v. Connor, 14 U. C., C. P., 529.

(7) R. v. Dale, 7 C. & P. 352.

(8) R. v. Jones, 15 Cox, C. C. R., 475.

defendant could not be convicted of obtaining the money by means of the false pretence but that he was properly convicted of attempting to obtain money by false pretences. (1)

Wherever the prosecutor himself knows the falsehood of the pretence but parts with his money or goods, notwithstanding, the defendant cannot be convicted of obtaining by false pretences; (2) but he may in such a case be convicted of attempting to obtain by false pretences, although the indictment charges him with obtaining. (See article 711, post.)

The mere fact of the prosecutor having the means at hand of acquiring knowledge of the falsity of the pretence will not of itself excuse the defendant so as to prevent him from being convicted of obtaining by false pretences. (3)

If the defendant has obtained money by a false pretence, knowing that it was false, it is no answer to shew that the party from whom he obtained it laid a plan to entrap him into the commission of the offence (4). Quaere, would not this depend upon whether the party from whom the money was obtained knew of the falsity of the pretence. (See R. v. Mills, supra.)

Parol evidence has been held admissible to prove the false pretences laid in the indictment, although a deed made between the parties and stating a different consideration for parting with the money was put in evidence for the prosecution; such deed having been made for the purpose of the fraud. (5)

Where the defendant sold to the prosecutor a reversionary interest which he had previously sold to another, and the prosecutor took a regular assignment of it, with the usual covenants for title, Littledale, J. ruled that the defendant could not be convicted for obtaining money by false pretences; for if this were within the statute every breach of warranty, or false assertion at the time of a bargain might be treated as such (6). In R. v. Kenrick the above ruling of Littledale, J. was much questioned; and it was strongly intimated that the execution of a contract between the parties does not secure from punishment the obtaining of money under false pretences, in conformity with that contract. (7) And in R. v. Abbott, it was decided unanimously by the judges upon a case reserved, that the law was so. (8,

It will be noticed that article 359 expressly declares that the obtaining by false pretence shall be punishable whether it is done directly or through the medium of a contract.

H. Page sold, to H. Pagnuelo, for $150, a horse described in a written document signed in duplicate by the parties at the completion of the sale, in which document it was stated that the purchase money was paid by Pagnuelo, the purchaser, on the faith of the warranty contained in the document, and not upon any verbal representations, and in which it was stipulated that if the horse should not come up to what it was warranted to be by that document, Page would repurchase it from Pagnuelo if brought back within thirty days in the same condition as when sold. On the day following the delivery of the horse and payment of the price, criminal proceedings were instituted by Pagnuelo, charging Page with having obtained the $150 by false pretences. At the trial in June 1892, before Taschereau, J., in the Court of Queen's Bench, at Montreal, objection was made on behalf of the defendant, Page, to the

(1) R. v. Roebuck, Dears. & B., 24; 25 L. J. (M. C.) 101.

(2) R. v. Mills, Dears. & B. 205; 26 L. J. (M. C.) 79.

(3) See Reg. v. Jessop, at p. 316 ante.

(4) R. v. Ady, 7 C. & P. 140.

(5) R. v. Adamson, 2 Mood. C. C., 286; 1 C. & K. 192.

(6) R. v. Codrington, 1 C. & P. 661.

(7) R. v. Kenrick, 5 Q. B. 49; Dav. & M. 208.

(8) R. v. Abbott, 1 Den. 173; 2 C. & K. 630; R. v. Burgon, Dears. & B. 11; 25 L. J. (M. C.) 105; R. v. Goss, Bell, 208; 29 L. J. (M. C) 86; R. v. Meakin, 11 Cox, C. C. R., 270.

adduction of any verbal evidence to contradict the writing, and especially that part of it, expressly declaring that the prosecutor, Pagnuelo, paid the money on the faith of the warranty contained in the writing and not upon any verbal representations. The Crown counsel, however, took the ground that the writing was a part of the alleged fraud, and resisted the defendant's counsel's objection, which was overruled; and verbal evidence was admitted to shew (inter alia), that the defendant, Page, had, before the completion of the sale, and before the signing of the written document, represented to the prosecutor, Pagnuelo, that the horse was a high bred, fast trotting horse, called Prince Wilkes," well known in the sporting world, and upon this evidence and proof of some other facts of minor importance (including evidence that the horse was worth from $80 to $110, the defendant, Page, was found guilty and sentenced to three years imprisonment. (1)

If the false pretence be in writing and it be lost, it may be proved by secondary evidence. (2)

It will be seen by article 616, (par. 2), that it is not necessary to set out the false pretences in the indictment; ut the Court may order the prosecutor to furnish a particular thereof.

360. Obtaining execution of valuable security by false pretence.— Every one is guilty of an indictable offence and liable to three years' imprisonment who, with intent to defraud or injure any person by any false pretence, causes or induces any person to execute, make, accept, endorse or destroy the whole or any part of any valuable security, or to write, impress or affix any name or seal on any paper or parchment in order that it may afterwards be made or converted into or used or dealt with as a valuable security, R.S. C., c. 164, s. 78.

See article 3 (cc.), ante, for definition of valuable security.

A was convicted on an indictment charging him with falsely pretending to B that he was prepared to pay him £100," and thereby fraudulently inducing him to "make a certain valuable security, to wit, a promissory note with intent thereby to defraud B." Held, that the indictment was good, as it must be taken by necessary inference to allege a false pretence by A, of an existing fact, viz that he was prepared to pay £100, and had it ready for him on his signing the note. (3)

:

361. Falsely pretending to enclose money in a letter.-Every is guilty of an indictable offence and liable to three years' imprisonment who, wrongfully and with wilful falsehood, pretends or alleges that he enclosed and sent, or caused to be enclosed and sent, in any post letter any money, valuable security or chattel, which in fact he did not so enclose and send or cause to be inclosed and sent therein. R.S.C., c. 164, s. 79.

one

It is not necessary to allege in the indictment the intent to defraud. (See article 618, post).

362. Obtaining passage by false tickets.-Every one is guilty of an indictable offence and liable to six months' imprisonment who, by means of any false ticket or order, or of any other ticket or order,

(1) Reg. v. Page, (not reported).

(2) R. v. Chadwick, 8 C. & P. 181.

(3) R. v. Gordon, 23 Q. B. D. 354; 58 L. J. (M. C.) 117.

fraudulently and unlawfully obtains or attemps to obtain any passage on any carriage, tramway or railway, or in any steam or other vessel. R.S.C., c. 164, s. 81.

363. Criminal breach of trust.—Every one is guilty of an indictable offence and liable to seven years' imprisonment who, being a trustee of any property for the use or benefit, either in whole or in part, of some other person, or for any public or charitable purpose, with intent to defraud, and in violation of his trust, converts anything of which he is trustee to any use not authorized by the trust.

Under article 3 (bb.), ante, the expression Trustee means a trustee on some express trust created by some deed, will or instrument in writing, or by parol, or otherwise, and includes the heir or personal representative of any such trustee, and every other person upon or to whom the duty of such trust has devolved or come, whether by appointment of a court or otherwise, and also an executor and administrator, and an official manager, assignee, liquidator or other like officer acting under any Act relating to joint stock companies, bankruptcy or insolvency, and any person who is, by the law of the province of Quebec, an "administrateur or " fideicommissaire"; and the expression "trust" includes whatever is by that law an administration” or “filéicommission."

99

Article 547, post, provides that no prosecution under article 363 shall be commenced without the sanction of the Attorney-General.

PART XXVIII.

FRAUD.

364. False accounting by official.-Every one is guilty of an indictable offence and liable to seven years' imprisonment who, being a director, manager, public officer or member of any body corporate or public company, with intent to defraud—

(a.) destroys, alters, mutilates or falsifies any book, paper, writing or valuable security belonging to the body corporate or public company; or

(b.) makes, or concurs in making, any false entry, or omits or concurs in omitting to enter any material particular, in any book of account or other document. R.S.C., c. 164, s. 68.

Sections 97 and 98 of the Bank Act, R.S.C., c. 31, (which are still in force), contain the following provisions with regard to bank directors and officials :

"Every one is guilty of a misdemeanor and liable to imprisonment for a term not exceeding two years who, being the president, vicepresident, director, principal partner en commandite, manager, cashier or other officer of the bank, wilfully gives or concurs in giving any creditor of the bank any fraudulent, undue or unfair preference over