The jury found the prisoner guilty, but a case was reserved for the opinion of the Court for Crown Cases Reserved upon the point thus raised.]

O'Moore, for the prisoner....The test to apply is, was the sending of the half-notes merely a promise to pay in the future? If so, it is not a false pretence; it was merely a security. It is not a false pretence on the face of it, like a flash note. It is quite possible that the prisoner made a mistake in sending the half-notes....

O'BRIEN, J. You say, Mr Murphy, that the mere act of sending the half-notes was a representation that the prisoner had the corresponding halves?

James Murphy, Q.C., for the prosecution. Yes; upon the authority of R. v. Giles (L. and C. 205).

MORRIS, C.J., stated that the Court were unanimously of opinion that the conviction should be affirmed.

CHAPTER II. THE OBTAINING.

[The Pretence must have been followed by an Obtaining.]

REGINA v. MARTIN.

SUSSEX ASSIZES. 1859.

1 FOSTER AND FINLASON 501.

False Pretences. The indictment charged that the prisoner, by falsely pretending to one Cloke that he was authorised by F., obtained from the said Cloke certain hop-poles, the property of the said Cloke, with intent to defraud him.

The prisoner, hearing that one F., who lived at M., wanted hoppoles, went to him and agreed to sell him a number, at 16s. 9d. per hundred, to be delivered at M. station. He then went to Cloke, who had hop-poles, and said he was commissioned by F. to buy them, promising that F. would send a cheque for the price. A cheque was sent; but it did not appear by whom. Cloke sent the poles to the station, by his own team, consigned to F. The bill was made out to F., who paid the carriage, and got the poles. Then the prisoner got the purchase money from him.

Roupell, for prisoner. The prisoner never got the poles. He pretended to sell, or sold, goods he had not got (Kingsford v. Merry,

1 H. and N. 503); Cloke ratified the contract between F. and the prisoner. If the prisoner was indictable at all, it was for obtaining money from F., not goods from Cloke.

WIGHTMAN, J., so held, and directed an acquittal.

[And this Obtaining must have been actually caused by the Pretence.]

REGINA v. MILLS.

CROWN CASE RESERVED. 1857.

DEARSLY AND BELL 205.

At the General Quarter Sessions of the Peace, holden for the County of Cambridge on the 9th of January, 1857, William Mills was tried and convicted upon the following indictment, for obtaining money under false pretences :-" Cambridgeshire, to wit. The jurors for our Lady the Queen upon their oath present, that William Mills, on the 14th day of November, 1856, did falsely pretend to one Samuel Free that the said William Mills had cut sixty-three fans of chaff for him the said Samuel Free; by which said false pretence the said William Mills then unlawfully did obtain from the said Samuel Free certain money of him the said Samuel Free, with intent to defraud; whereas in truth and in fact the said William Mills had not cut sixty-three fans of chaff, as he the said William Mills did then so falsely pretend to the said Samuel Free, but a much smaller quantity (to wit) forty-five fans of chaff. And the said William Mills, at the time he so falsely pretended as aforesaid, well knew the said pretence to be false, against the form of the statute," &c. It appeared from the evidence that the prisoner was employed to cut chaff for the prosecutor, and was to be paid twopence per fan for as much as he cut. He made a demand for 10s. 6d, and stated he had cut sixty-three fans; but the prosecutor and another witness had seen the prisoner remove eighteen fans of cut chaff from an adjoining chaff-house and add them to the heap which he pretended he had cut; thus making the sixty-three fans for which he charged. Upon the representation that he had cut sixty-three faus of chaff, and notwithstanding his knowledge of the prisonert having added the eighteen fans, the prosecutor paid him the 10s. 6d., being three shillings more than the prisoner was entitled to for the work actually performed.

n

It was objected, on behalf of the prisoner, first, that this was simply

an overcharge, as in the case of Reg. v. Oates1; and secondly, that, as the prosecutor, at the time he parted with his money, knew the facts, the prisoner cannot be said to have obtained the money by the false pretence. Judgment was postponed; and the prisoner was discharged upon recognizances to appear at the next Quarter Sessions. The opinion of the Court of Criminal Appeal is requested, whether the prisoner was rightly convicted of misdemeanor under the foregoing indictment.

Thos. St Quinton,

Chairman.

Orridge, for the Crown. I submit that this conviction was right. COLERIDGE, J. How do you say the money was obtained by the false pretence?

Orridge. When the owner of goods knows that a thief is coming, and does not prevent him from taking the goods, the offence of larceny is as complete as it would have been if the owner had known nothing about it. Reg. v. Egginton'.

WILLES, J. But in larceny the question does not turn on the belief of the prosecutor.

Orridge. In Rex v. Adey3, Patteson, J., says: "If the defendant did obtain the money by false pretences, and knew them to be false at the time, it does not signify whether they intended to entrap him or not4."

COCKBURN, C.J. The test is, what was the motive operating on the mind of the prosecutor which induced him to part with his money? Here the prosecutor knew that the pretence was false; he had the same knowledge of its falseness as the prisoner. It was not the false pretence, therefore, which induced the prosecutor to part with his money; and if it is said that it was parted with from a desire to entrap the prisoner, how can it be said to have been obtained by means of the false pretence?

COLERIDGE, J. In Rex v. Adey it is said that the prosecutor believed the false statement.

CROWDER, J. It is always a question whether the prosecutor was induced to part with his money by the false pretence.

WILLES, J. The prosecutor handed the money over to the prisoner with a full knowledge of the true state of the circumstances.

1 Dearsly, C. C. 459.

2 2 B. and P. 508.

3 7 C. and P. 140.

Patteson, J., also said to the jury, "If you believe any one of the pretences was false, and that the mina of the prosecutor was operated upon by it, then you will find him guilty."

BRAMWELL, B. The prosecutor paid the money with a knowledge of the facts. I doubt if he could get it back in a civil action.

COCKBURN, C.J. The case is very clear. The conviction is wrong. Conviction quashed.

[And the Pretence must not have been too remote a cause.

se.]

THE QUEEN v. BUTTON.

CROWN CASE RESERVED.

1900.

EDITOR'S MS. NOTE1.

race.

At the Lincoln City Quarter Sessions on July 3, 1900, the defendant was indicted for attempting to obtain goods by false pretences. At the Lincoln Athletic Sports in August, 1899, the defendant came forward as a competitor in a 120 yards race and a 440 yards race, for each of which there was a ten guinea prize. He presented entry forms which purported to be signed by "C. Sims, Thames Ironworks Athletic Club"; and which contained a statement as to the last four races in which Sims had run, and also a statement that he had never won a race. These statements were true; but Sims had not signed them, and he knew nothing of them. In consequence of what appeared in them the handicapper of the Lincoln Sports allowed Sims a start of eleven yards in the 120 yards race, and 33 yards in the 440 yards At the time of the sports, Sims was at his home at Erith. The defendant, who was a good runner and had won a race in his own name, personated Sims; and easily won the two races. The suspicions of the handicapper were aroused after the first of these races; and he questioned the defendant as to whether he really was Sims and really had never previously won a race. The defendant answered in the affirmative. The handicapper swore at the trial that he should not have given the defendant such favourable starts if he had known his true name and performances. The defendant never applied for the prizes, and never received them. It was suggested for the defence that the defendant might have acted as he did merely for " a lark," or for the purpose of keeping himself in training. The Recorder of Lincoln directed the jury that if the defendant did it "for a lark," with no criminal intent, and without intending to get the prizes, they

1 A report of this case will also be found in L. R. [1900] 2 Q. B 597.

ought to find him not guilty: but that if he made the false representations wilfully and fraudulently, with intent to obtain the prizes, they ought to find him guilty of attempting to obtain them by false pretences. The jury found him guilty. The Recorder reserved a case for the consideration of the Court; the questions to be decided being (1) whether the Recorder had rightly directed the jury; and (2) whether the attempt to obtain the prizes was too remote from the pretence.

Hughes, for defendant. The false representation is not sufficiently proximate. In Reg. v. Larner (14 Cox 497) it was held by the Common Serjeant, after consulting Stephen, J., that where after a similar false entry, a competitor received 25 seconds start in a swimming match and won the cup, what he obtained by the false pretence was not the cup itself, but only the ticket permitting him to compete. In the present case he has not even received the prize, as Larner did. By the false entry he obtained nothing beyond an advantage in running in the race The winning was not the effect of the entry, but of his actual skill in running; he might or might not have won. And even the winning gave only an optional right to the prizes, a right which he might or might not have enforced; so something remained still to be done by him. There is no true indictable attempt until a defendant has performed the final act that it depends on himself to perform. In Reg. v. Eagleton (6 Cox 559) Parke, B., said, "If any further step by defendant had been necessary, we should have thought it not sufficiently proximate." Accordingly, in the present case, there would be no indictable attempt until he made actual application for the prizes. The case falls within the principle of Reg. v. Burgess (7 Cox 136) where a false pretence by which lodgings had been obtained was held not to extend to the board which had been supplied in them. Shearman and Walker for the Crown were not called upon. MATHEW, J. We are all agreed that the conviction must be upheld. Reg. v. Larner is a decision on the particular facts; no reasons are given for it. It has been differed from by Lord Lindley; and we think his Lordship was right. What was intended by the defendant when he entered his name for the races? Was it to obtain the prizes? If it were, was that entry too remote from the obtaining? He falsely represented himself as a man who had never won a race; and he was accordingly handicapped as such. Did he do this merely "for a lark"? The jury have negatived that view of his intention. It is argued that his winning was due to his own athletic powers; but it was due also to his false representations. It is argued that his criminal intention was exhausted before the final act that remained to be done