REGINA v. ELLIS, C.C.R. been adjudged a bankrupt, and within four months next before the presentation of a bankruptcy petition against him, did in the county of Durham unlawfully, by false representations, obtain certain property from Messrs. Arthur & Co., Lim., of Glasgow, amounting in the whole to 1,726l. 15s. 10d., on credit, and had not paid for the same, and under section 13, sub-section 1 of the same Act for that he between August 31, 1897 and November 18, 1897, in the county of Durham, in incurring certain debts or liabilities of various sums amounting in all to 1,7267. 158. 10d. to Messrs. Arthur & Co., Lim., of Glasgow, did unlawfully obtain credit by certain false pretences which are set out in the indictment. The evidence touching each charge was the same, and the facts were as follows: The prisoner carried on business at Gateshead, in the county of Durham, as a draper. Messrs. Arthur & Co., Lim., wholesale drapers at Glasgow, had a traveller named Noble, who, in 1896, at Gateshead, opened an account with the prisoner. In July, 1897, Noble declined to let the prisoner have further goods on credit unless he satisfied the principals at Glasgow as to his financial position. Thereupon, on September 1, 1897, the prisoner saw Kay, the managing director of Messrs. Arthur & Co., Lim. and made to him a number of representations set out in the indictment as to his financial position, which were false to the prisoner's knowledge. This interview took place at Glasgow, and there, as both the learned counsel agree, Kay gave instructions to Noble to continue to supply goods on credit to the prisoner. In consequence of these instructions Noble continued to call upon the prisoner at Gateshead and there booked orders. Some of the goods so ordered were sent from Glasgow, and in respect of these there was no evidence whether the Glasgow house or the prisoner paid the carriage. Some of the orders, however, were executed by Noble himself at Gateshead, and were delivered by his porters to the prisoner there. The proof of bankruptcy and of the necessary dates was complete, and the only question is whether any offence was proved which the Assize Court sitting in and for the county of Durham had jurisdiction to try. There

is no real difference material to the present case between the two counts. One speaks of obtaining property by false representations, and the other of obtaining credit under false representations. In each case the indictment follows the language of the Act of Parliament, but there does not seem to me to be any difference of substance created by the use of the different prepositions. There is no doubt, then, that the false representations were made in Glasgow, out of the jurisdiction of the English Courts, and that by or under these false representations goods were obtained in the one case and credit was obtained in the other in the county of Durham; and the question is neatly raised whether, when the false representations are made beyond the jurisdiction of the English Courts, and the goods are obtained within the jurisdiction of an English Court dealing with the charge, that Court has jurisdiction to try the case. There can be no doubt that the making of the false representations is an element in the crime. Without it there would be no crime, and if it is essential that all the elements of the offence should take place within the jurisdiction of the English Courts, the conviction could not be sustained. The precise question now raised is new. It has not, in fact, occurred with respect to false representations made outside England, whether abroad or in other parts of the British Islands. In England itself the question of jurisdiction as between two counties, when the false representations were made in one county and the goods obtained in another, has not been capable of being raised since 1827, for by the 7 Geo. 4. c. 64, s. 12, it was provided that where any felony or misdemeanour shall be begun in one county and completed in another it may be dealt with and tried in either of the said counties in the same manner as if it had been actually and wholly committed therein. Three observations here arise: First, that the particular state of circumstances which gives rise to the present question is not of so frequent occurrence as to make it sur prising that the question has not been raised for decision; secondly, that any authority bearing upon the analogous case of the offence in question being committed

REGINA V. ELLIS, C.C.R.

by false representations being made in one county and goods being obtained by and supplied under them in another county must be looked for before 1827; and thirdly, that it is within the undoubted competency of the British Legislature to enact that the obtaining of goods in England by means of false pretences, made whether in or out of England, shall be an offence against British law. In this, as in most other cases, there is room for a good deal of argument on either side of the question, and it would not be uninteresting certainly to embark afresh upon some of the investigations which formed the subject of much of the discussion in Rex v. Burdett. But if there is distinct authority sufficiently germane to render such a task superfluous, it is, as it seems to me, equally unnecessary and unadvisable to resort to it. In my opinion, there is such authority, and I will proceed to state what it is. Some time before the year 1820 one Buttery was indicted and tried in Herefordshire for obtaining goods by false by false pretences. The false pretences were made in Herefordshire and the goods supplied in Monmouthshire; the prisoner was convicted and a Case reserved, according to the practice of those days, for the consideration of the Judges at Serjeants' Inn. The case is not reported, but in Rex v. Burdett Chief Justice Abbott, after stating the facts, comments upon it in these terms: "The language of the statute (30 Geo. 2. c. 24, s. 1) makes the offence to consist in obtaining the money, and not in using any false pretence, whereby money shall be obtained. . . . The Judges thought the indictment was laid in the wrong county; they did not think the party not indictable at all, which they ought to have done, if the proposition addressed to us be true." I will state a little later what that proposition was. The Lord Chief Justice continues: 6. They did not think the party not indictable at all... because the pretence which was necessary to constitute the crime was in one county and the receipt in another; and so there was no entire crime in either." The argument in Rex v. Burdett, to which these observations were addressed by the Lord Chief Justice, was that a libel

8

written in one county for publication, but published in another county, constitutes no offence triable in either, because there is in neither any one entire crime. The majority of the Court, consisting of the Lord Chief Justice Abbott and Mr. Justice Holroyd and Mr. Justice Best, held, dissentiente Mr. Justice Bayley, that the offence was triable in either county. The case of Rex v. Buttery is cited only in the judgment of the Lord Chief Justice. It was not exactly in point, and all that can be said of it in connection with Rex v. Burdett is that it is cited by Lord Chief Justice Abbott without any expression of disapproval. But in 1825 the case of Pearson v. M'Gouran [1825]8 was before the same Court of King's Bench, and it seems not only to adopt and confirm the decision. in Rex v. Buttery, but to base it upon a ground which entirely covers the present case. Pearson v. M'Gowran was an action for penalties under a statute which enacted that " every person who shall upon any contract take, accept, or receive by way or means of any corrupt bargain above the sum of 5l. for the forbearing of 100%. for a year shall forfeit" a given sum, half of which was to go to the person who should sue for the penalty. The contract was made in Middlesex; the money paid in pursuance of the contract was paid in London. Upon a rule to set aside a verdict for the plaintiff and enter a nonsuit, pursuant to leave reserved, it was argued for the plaintiff that the offence was a misdemeanour and was committed partly in one county and partly in another, and therefore triable, according to the decision in Rex v. Burdett in either. The Court held the contrary, and ordered a nonsuit to be entered. considered judgment of the Court, which at that time consisted of Chief Justice Abbott, Mr. Justice Bayley (the dissenting Judge in Rex v. Burdett 7), and Mr. Justice Littledale, was delivered by Chief Justice Abbott, who said: "We think the offence consists in the taking and receipt of usurious interest. The corrupt contract is antecedent to, and not a part of the taking. The offence, therefore, was not committed partly in one county and

7

The

(8) 3 L. J. (0.s.) K.B. 95; 3 B. & C. 700.

6

REGINA V. ELLIS, C.C.R. partly in another, although the contract is undoubtedly a material circumstance in the case, because it stamps the illegality of the receipt. This resembles the case of Rex v. Buttery, which was an indictment on the statute 30 Geo. 2. c. 24, for obtaining money by false pretences. That statute enacts' that all persons who knowingly and designedly by false pretences shall obtain from any person money, goods, &c., with intent to cheat or defraud any person of the same, shall be deemed offenders against law.' The language of the statute makes the offence to consist in obtaining the money, and not in using any false pretence whereby money shall be obtained. The indictment was in Herefordshire, the false pretences were in Herefordshire, but the money was received in Monmouthshire. The Judges thought the indictment was laid in the wrong county. That comes nearer to the present case than any of those cited at the Bar or found by us. Upon that authority, therefore, and upon the language of the statute, we are of opinion that the rule for entering a nonsuit must be made absolute." Mutatis mutandis, every part of the passages cited from each of the judgments is applicable to the present case. The making of the false pretences is antecedent to, and not a part of the obtaining the goods. It is a material circumstance, because it stamps the illegality of the obtaining the goods. The gist and kernel of the offence is the obtaining the goods by improper means, not in using the improper means whereby goods were obtained, and there therefore an entire offence within the one county, though the circumstance which stamped it with illegality took place beyond the jurisdiction. If the principle of the decision in Rex v. Buttery 6 or in Pearson v. M'Gowran 8 be correct, it can make no difference that the material circumstance which stamped an otherwise innocent transaction with the character of a crime took place outside the jurisdiction of the English Courts. It was just as much outside the jurisdiction of the Court which tried the offence in Rex v. Buttery and Pearson v. M'Gowran 8 as if it took place in Scotland or abroad. It is, in fact, by

6

was

6

those decisions reduced to a mere piece of the evidence necessary to constitute the offence. There is nothing unreasonable in this view. There is no moral difference between an offence where the representations are made in England and one where they are made in Scotland. There has been no expression of judicial opinion anywhere finding fault with Rex v. Buttery or Pearson v. M'Gowran.8 The views expressed are those of a perhaps exceptionally strong Court, some members of which certainly were exceptionally familiar with questions of pleading and venue, and it seems to me altogether too late to question the authority. The present legislation is subsequent to it, and it is a sound principle that, unless there be some strong countervailing reason, fresh legislation in pari materia and using language identical with or undistinguishable from former Acts which have received judicial construction should be construed upon the lines of the former decisions. It has been urged upon us that the fact that the Act of 7 Geo. 4. c. 64, s. 12, contained the provisions which have been set forth, by which misdemeanours committed partly in one county and partly in another are triable in either, indicates a doubt as to the soundness of the decisions, then recent, of Rex v. Buttery or Pearson v. M'Gowran.8 I do not think there is anything in this argument. The provision in question covers a vastly greater area than those two cases. It is contained in a section which deals with both felonies and misdemeanours. The provisions were undoubtedly new, as to most felonies, at all events. It was most natural that when such provisions were enacted as to felonies they should be so extended as to place misdemeanours upon the same statutory footing in this respect as felonies. It was further urged for the prisoner that it required a statute the Larceny Act, 1896 (59 & 60 Vict. c. 52)— to make the receipt of stolen property with the guilty knowledge that it had been stolen an offence triable in England where the property had been stolen abroad and the receiving had taken place in England. But the cases have no real analogy. The receiver, although guilty by statute of a substantive felony, is in

6

REGINA v. ELLIS, C.C.R. all essential respects an accessory. There

can be no receiver unless there has been a thief, and if the larceny which is the starting point of the crime be not established there is no offence in the receiver. It is therefore essential to shew a crime in some one else before you can make any case against the receiver. A crime in English jurisprudence means a crime by English law, under English law, and cognisable by an English Court, and if there was no such crime established the receiver could not be convicted. This seems to me to be the true ground upon which it was rightly decided in Reg. v. Debreuil [1861] that a receiver in England could not be convicted where property had been stolen in Guernsey. Mr. Justice Byles points out there that transactions which may be larceny by English law may not be so by the law of Guernsey, and it would be strange if (without express legislation) that which might be no offence in the country where it took place should be made the foundation of a crime in England which consists essentially in being an accessory to the principal transaction. This is a good illustration of the inconvenience of holding a receiving to be a crime in England where the principal offence has been committed abroad. In the case now under consideration no question arises as to the commission of any crime in Scotland, nor as to the application of Scotch law to any part of the case. For these reasons I am of opinion that the conviction was good and ought to be affirmed.

LORD RUSSELL OF KILLOWEN, C.J., read the following judgment of HAWKINS, J.: I agree in thinking that the conviction ought to be affirmed. The crime consists in the obtaining the goods by means of a false representation previously made. The goods must, no doubt, be so obtained within the jurisdiction of the Court before which the offender is tried, but I find no warrant for saying that it is essential that the false representation should be also made within that jurisdiction. To simply make a false representation with intent thereafter to defraud is not a legal crime;

(9) 11 Cox, C.C. 207.

but if goods are obtained by means of it, the so obtaining the goods amounts to an indictable offence, wheresoever the false representation itself may have been made. A false representation made to a London tradesman out of the jurisdiction-say in Paris-with the object fraudulently to obtain goods from that tradesman in London must, according to every dictate of good sense, be intended by the maker of it to operate on and continue present in the mind of the tradesman until the goods are actually obtained from him, and by his conduct in obtaining the goods he ought, in my opinion, to be treated as having repeated his representations quite as effectually as if he had again put them into words. Let me suppose that at the interview in Glasgow the managing director, believing the false representations of the defendant to be true, had said to the defendant, "I am satisfied. I shall be in Gateshead in a day or two; and as you have satisfied me, I will let you have the goods you require," and in a day or two both had again met in Gateshead, and then, without another word being spoken, the managing director, acting on the Glasgow conversation, had handed to the defendant on credit the goods required. Would it not be revolting to good sense if it could be truly said that the law in this commercial country was such that the defendant could avert the consequences of his crime by alleging that, though he had beyond all question obtained the goods by fraudulently false pretences, he could not be punished because his false pretences were made in Glasgow ?

LORD RUSSELL OF KILLOWEN, C.J.-I concur in the conclusion arrived at by the other members of the Court that this conviction must be affirmed.

REGINA v. ELLIS, C.C.R.

8

v. M'Gowran applies to the present case. In those cases all the transactions took place within what has been called by Lord Coke the jurisdiction of the common law. I do not think it clear that the same reasoning applies where the false pretence is made. in a foreign country; and Scotland, for this purpose, must be considered a foreign country. The law as to false pretences depends entirely on whether the prisoner has obtained a consent to a change of property. Now, where the false pretence is made in a foreign country, the law of that country may, and in some cases certainly does, differ from our own as to what amounts to a false pretence, and as to what constitutes a consent, and also as to what will vitiate a consent; and on those considerations may depend the question whether the transaction is criminal at all, and also what is the nature of the crime. If the consent is negatived, the offence is felony. If not, it is the misdemeanour of obtaining goods by false pretences. I do not decide that question; but I agree in the result arrived at by the rest of the Court.

BRUCE, J., read the following judgment: I agree that the conviction should be affirmed. I have only one word to add. The rule of common law restraining jurors from enquiring into facts arising beyond the limits of the county was not at any time so strictly observed in misdemeanours as in felonies. It seems to me that, in the case of a misdemeanour, the offence can be properly dealt with in the county where the offence is completed, notwithstanding that some act constituting a material circumstance may have happened altogether beyond the jurisdiction.

Conviction affirmed.

Solicitors-Joel & Parsons, Newcastle-on-Tyne, for prisoner; Solicitor to Treasury, for Crown.

[Reported by F. Cowper, Esq., Barrister-at-Law.

Justice of the Peace-JurisdictionLicensing-Part of County Transferred to another County-County Police Act, 1840 (3 & 4 Vict. c. 88), s. 2.

Where part of a county is transferred to another county under section 2 of the County Police Act, 1840, the licensing jurisdiction over the part transferred does not pass from the Justices of the former county to those of the latter.

Appeal from two orders of a Divisional Court.

The parish of Yardley is situated in the north-east corner of Worcestershire, of which geographically and historically it has always formed part. It is roughly triangular in shape, being bounded on its shortest side by the rest of Worcestershire, and on its two longer sides by the Solihull division of Warwickshire and the city of Birmingham.

By an order of the Worcestershire Court of Quarter Sessions made in 1829, under the Division of Counties Act, 1828 (9 Geo. 4. c. 43), the parish was assigned to the Northfield petty sessional division of that county.

By an agreement made pursuant to section 2 of the County Police Act, 1840 (3 & 4 Vict. c. 88),' between the Courts

(1) The County Police Act, 1840, after reciting the County Police Act, 1839, provides (section 2) that "it shall be lawful for the Justices of any two or more neighbouring counties, in their several general or quarter sessions assembled, from time to time to agree that such parts of their several counties as to them shall seem fit shall, for the purposes of the said Act, be considered as forming part of any other of the said counties; and whenever any such district shall be so transferred, for the purposes of the said Act, from one county to another, with the consent of the Justices of both the last-mentioned counties, such district shall be considered, for the purposes of the said Act, as if it were detached from the county to which it belongs, and wholly surrounded by the county to which it is so transferred; and