CHAPTER XXXIX. 1 OBTAINING PROPERTY BY FALSE PRETENCES AND OTHER CRIMINAL FRAUDS AND DEALINGS WITH PROPERTY. 2 ARTICLE 435. OBTAINING GOODS, ETC., BY FALSE PRETENCES. EVERY one is guilty of a misdemeanor and liable to three years' imprisonment who 3 (a.) by any false pretence obtains from any other person any chattel, money, or valuable security with intent to defraud; or 4 (b.) with intent to defraud or injure any other person by any false pretence, fraudulently causes or induces any other person to execute, make, accept, endorse, or destroy the whole or any part of any valuable security, or to write, impress, or affix his name, or the name of any other person, or of any company, firm or co-partnership, or the seal of any body corporate, company or society, upon any paper or parchment, so that the same may afterwards be made or converted into, or used or dealt with as, a valuable security. [It is not 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 [3 Hist. C. Law 160-2.] 2 S. D. Art. 329. R. S. C. c. 164, s. 77; 24 & 25 Vict. c. 96, s. 88. A member of an unincorporated company cannot be convicted of obtaining by false pretences the money of the company; R. v St. Louis, 10 L. C. R. 34. 4 R. S. C. c. 164, s. 78; [24 & 25 Vict. c. 96, s. 90. This section was meant to cover such cases as R. v. Danger, 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.] [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. 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.) 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.] Illustrations founded on Canadian Cases. (4.) * A obtains a loan upon the security of a lot of land by falsely representing that there is a brick house on the lot. This is a false pretence. (5.) 5 A takes B's note in part payment for a horse. After maturity A threatens to sue B, who gets C to pay the money, A promising to get the note from a solicitor's office where he said it was and give it up the next morning. A has in fact sold the note to another person. A obtains the money by a false pretence. (6.) 6 A, on a precipe that his clerk by his direction forges, obtains from the Accountant in Chancery a check payable to B, who is entitled to the money. There is no intent to defraud B. A obtains the check by a false pretence. (7.) A, who has been discharged from B's service, falsely representing herself to be in B's employ, purchases from C a parcel of goods, which C sends to B's residence, where they are handed to B's servant. A having preceded the clerk who delivers the parcel, snatches it from the servant, saying "This is for me, I am going in to see B," and makes off. A obtains the goods by a false pretence. [R. v. Robinson, Bell, 34. 2 R. v. Martin, L. R. 1 C. C. R. 56. 3 R. v. Evans, L. & C. 256. I am unable to follow the reasoning of this judgment.] 4 R. v. Huppel, 21 U. C. Q. B. 281. 5 R. v. Lee, 23 U. C. Q. B. 340. 6 R. v. Parkinson, 41 U. C. Q. B. 545. 7 R. v. Robinson, 9 L. C. R. 278. 1 (8.) A falsely representing that it is valid sells to B a railway pass good only to carry a particular person, and which B cannot use without committing a fraud on the railway. B does not at the time know that the pass is not transferable. A obtains by a false pretence the money paid for the pass. 2 (9.) A to whom an order for 15 bushels of grain, that the municipal authorities are distributing to the poor, has been given, obtains a second order by falsely pretending to have lost the first, and striking out part of the first order presents both and has them filled. A obtains the second order, and the grain which he receives thereon, by a false pretence. 3 (10.) A gives B C's note for $100.00 in exchange for a horse, knowing at the time that the note has been paid except as to a few dollars. This is a false pretence by conduct. 4 (11.) A presents post office orders, knowing that they have been issued by a post-master fraudulently, and without any money having been paid therefor, and receives the amount thereof. This is a false pretence by conduct. 5 (12.) A is being supplied by B with goods under an arrangement with C to pay therefor on the amount thereof being endorsed on his (C's) note which A holds. A obtains goods from B on the promise in a day or two to bring the note to B to have the amount so endorsed thereon. A does not keep his promise. This is not a false pretence. (13.) 6 A obtains B's note on the promise, which he fails to keep, to give B $6,000.00 on what he then owed him, out of the proceeds of the note. This not a false pretence. 7 (14.) B intending to pay A 75 cents takes out of his purse a $2.00 bill saying that he will get it changed. A says "I'll change it." Whereupon B hands the bill to A who makes off with it. A does not obtain it by a false pretence. (15.) A by a false pretence obtains from B a promissory note for $1,200.00, which B pays in four or five days and before maturity. A does not obtain the money by a false pretence. 9 (16.) A solicits B to purchase a package of counterfeit bank notes. B intending to bring A to justice, pretends to buy and gives A $50.00 and a watch as security for the balance that he agrees to pay for the package. 1 R. v. Abrahams, 24 L. C. J. 325. 2 R. v. Campbell, 18 U. C. Q. B. 413. With respect to the grain it is a false pretence by conduct. 3 R. v. Davis, 18 U. C. Q. B. 180. 4 R. v. Dessauer, 21 U. C. Q. B. 231. 5 R. v. Bertles, 13 U. C. C. P. 607. 6 R. v. Pickup, 10 L. C. J. 310. 8 R. v. Brady, 26 U. C. Q. B. 13. 9 R. v. Corey, 22 N. B. R. 513. The false pretence must be that by which the complainant is induced to part with his property; R. v. Brien, 12 R. L. 697. A does not give B the package of counterfeit notes that B in parting with his property expects to receive, but a package of waste paper. A obtains the money and watch by a false pretence. (17.) A representing himself to be the agent of B by false representations induces C to sign a contract to pay $240.00 for seed wheat. B afterwards calls upon C and procures him to sign and deliver to him a promissory note in his (B's) favor for $240.00. The contract does not provide for the giving of a note, and when the false representations are made a note is not mentioned, but C gives the note because he has entered into the contract. A by a false pretence has induced C to write his name upon a paper so that the same may afterwards be dealt with as a valuable security. 2 ARTICLE 436. DEFINITION OF "FALSE PRETENCE." [The expression, "false pretence," in Article 435, 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 enquiry, 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. 4 3 Illustrations. (1.) * A, not being a member of the University of Oxford, represents 1 R. v. Rumal, 17 0. R. 227. 2 S. D. Art. 330. See also illustrations founded on Canadian cases Art. 435. 4R. v. Barnard, 7 C. & P. 784. The defendant said he was a 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.] [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.) 3 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 2s. 2d. This is a false pretence, though an enquiry might easily have been made. (5.) A represents to B that A has power to bring back B's husband (who had 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 six pences. 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. 6 (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. 1 [Per Crompton, J., in Evans's Case, Bell, C. C. 192. The rest of the Court seemed to be of the same opinion. 2 R. v. Hazelton, L. R. 2 C. C. R. 134. See, too, R. v. Jackson, 3 Camp. 379; R. v. Parker, 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 honored. 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, 1 Den. 559. See, too, R. v. Jessop, D. & B. 442. 4 R. v. Giles, L. & C. 502. 5 Lee's Case, L. & C. 309. R. v. West, D. & B. 575.] |