the prisoner has obtained possession of the goods or money, the prosecution will fail, for it is essential to prove that the goods or money were handed over on the faith of the false pretence charged. Thus, where the prisoner gave a false name and address, but did so after the goods had been delivered to him, it was held that he could not be convicted of obtaining the goods by means of the false name and address, which were the only pretences set out in the indictment.1

Again, the prisoner cannot be convicted of the full offence of obtaining goods by false pretences, but only of an attempt to do so, where the prosecutor parts with the goods not in consequence of the false pretence, but from motives of charity or for some other reason independent of the false pretence charged.2

Lastly, the prosecutor must be induced by the prisoner's false pretences to part with some chattel, money or valuable security. If, in spite of the prisoner's fraudulent repre sentations, the prosecutor does not part with anything, the prisoner can be convicted only of an attempt. The prosecutor must intend to part not only with possession of the goods, but with his whole property or other interest in them. This is the main distinction between larceny and false pretences. In larceny the owner of the thing stolen has no intention of parting with his property. In false pretences, on the other hand, the owner has the intention of divesting himself of his property; he parts with his goods voluntarily, being induced to do so by the prisoner's fraudulent statements. It does not matter whether in law the property in them actually passes or not; it is enough if the owner intends to part with his whole interest in the goods and expects never to have them returned to him.

"If a person through the fraudulent representations of another delivers him a chattel intending to pass the property in it, the latter cannot be indicted for larceny, but only for obtaining the chattel under false pretences.' "On the authorities it is settled law that if the owner of

1 R. v. Jones (1884), 15 Cox, 475.

R. v. Light (1915), 84 L. J. K. B. 865.

3 Per Parke. B., in Powell v. Hoyland (1851), 6 Exch. 70; and see R. v. Adams (1812), R. & R. 225.

the goods or money parts with the possession, and does not intend to pass. the property, and there is at the time an intention to steal in the mind of the person who obtains the possession, that is evidence of larceny." "Where the owner of goods is, by a trick employed by a person animo furandi, induced to part with possession of the goods to that person, not intending to pass the property, . . . that is larceny by a trick." 2

For example, if A. tells B.'s wife that B. has sent him to fetch his dressing-case, and B.'s wife, believing this statement, gives A. the case to carry to B., and A. converts it to his own use, A. is guilty of larceny by a trick. But if A. tells B.'s wife that he has won 10s. from B. on a bet, and that B. says she is to pay him that amount, and she, believing him, gives hin the money, whereas no such bet was ever made and lost, A. is guilty of obtaining money by false pretences.

If C. obtains goods from D. on credit by falsely pretending that he was sent by E. to obtain those goods from D. for and on behalf of and on the credit of E., C. is guilty of false pretences and not of larceny. It is true that there is in this case no contract between D. and E., and therefore no sale of the goods to E., so that no property passes. Nevertheless D. intended to pass his whole property in the goods to E.; he never expected to see them back again in his shop.

3

Again, where A. is induced by false pretences to send goods to B. on sale or return, it is submitted that the case is not larceny by a trick; for A. intends to part with his property in all such goods as B. may retain, and leaves it to B. to decide whether he will retain all or any, and which, of the goods. So if B. falsely represents to the owner of an article that he has a customer who desires to purchase such an article, and thereby induces the owner to deliver to him that article on sale or return for the purpose of his endeavouring to get the supposed customer to buy it from him, the case is not one of larceny by a trick, but of obtaining goods by false pretences.+

"I think there is larceny by a trick where the owner of goods, being induced thereto by a trick, voluntarily parts with the possession of the goods, but does not intend to pass the property in them, and the rec pient has the animus furandi. . . . On the other hand, goods are obtained by false pretences where the owner of the goods, being induced thereto by a trick, voluntarily parts with the possession of the goods, and does intend to pass the property. . . . It is, I think, obtaining goods by false pretences where the owner, being induced thereto by a trick, voluntarily parts with the possession, and either intends to pass the property, or intends to confer a power to pass the property. If he gives, and intends to give, that power and the power is exercised, the person who takes under the execution of the power obtains the property not against, but by, the authority of the

1 Per Manisty, J., in R. v. Buckmaster (1887), 20 Q. B. D. at p. 187. Per Fletcher Moulton, L. J., in Oppenheimer v. Frazer and Wyatt, [1907] 2 K. B. at p. 73.

Cundy v. Lindsay (1878), 3 App. Cas. 459.

Whitehorn Brothers v. Darison, [1911] 1 K. B. 463.

original owner, and none the less because the authority was obtained by fraud."

The rule of law is the same, but its application is not so simple, in cases where the prisoner obtains goods from a servant of the owner. Here it is not enough that the servant should intend to part with the property in the goods, but the master also must intend that the servant should so intendin other words, he must have given the servant authority, actual or constructive, to part with the property in them when in his discretion he thought fit to do so.

Thus, if a shopman has authority to sell the goods in his master's shop either for cash or on credit, and X. by means of false pretences obtains goods on credit from the shopman in his master's absence, the crime is clearly false pretences; for both master and servant intended to pass the property in those goods to X. as well as the possession of them. But more difficulty arises where the authority of the servant is limited, e.g., where he is forbidden to part with any goods before they are paid for in cash, or where he is directed to deliver certain goods to a particular person. Thus A. bought a book at a book shop, paid for it, and subsequently sent his servant to fetch it and take it to B. as a present. If X. meets the servant en route and obtains the book from him by pretending that he is B., this is larceny by a trick; for A. is the owner of the book, and he never intended to part with his property in it to any one except B. So the servant parted only with the possession.

In R. v. Prince2 a married woman obtained eight £100 notes from the cashier of the London and Westminster Bank, where her husband had an account, by presenting an order purporting to be signed by him, but which was in fact a forgery; and the question was-Had the notes been stolen or only obtained by false pretences? The judgment of Blackburn, J., is very clear and forcible :-" As the law now stands, if the owner intended the property to pass, though he would not so have intended had he known the real facts, that is sufficient to prevent the offence of obtaining another's property from amounting to larceny; and where the servant has an authority co-equal with his master's and parts with his master's property, such property cannot be said to be stolen, inasmuch as the servant intends to part with the property in it. If, however, the servant's authority is limited, then he can only part with the possession and not with the property; if he is tricked out of the possession, the offence so committed will be larceny. . . . In the present case the cashier holds the money of the bank with a general authority from the bank to deal with it. He has authority to part with it on receiving what he believes to be a genuine order. Of the genuineness he is the judge, and if under a mistake he parts with 1 Per Buckley, L. J., in Whitehorn Brothers v. Davison, [1911] 1 K. B. at p. 479. (1868), L. R. 1 C. C. R. 150.

money, he none the less intends to part with the property in it, and thus the offence is not, according to the cases, larceny, but an obtaining by false. pretences." The reader will also probably agree with a further remark of Blackburn, J., in this case :-"I cannot but lament that the law now stands as it does. The distinction drawn between larceny and false pretences, one being made a felony and the other a misdemeanour and yet the same punishment attached to each-seems to me, I must confess, unmeaning and mischievous. The distinction arose in former times, and I take it that it was then held in favour of life that in larceny the taking must be against the will of the owner, larceny then being a capital offence. ... The distinction is inscrutable to my mind, but it exists in the cases."

The indictment must state the false pretence, which operated on the mind of the prosecutor, and must state it with sufficient certainty to enable the prisoner to see clearly with what he is charged. The indictment should state to whom the false pretence was made, that it was made with intent to defraud, that the prisoner obtained the property thereby, and from whom he obtained it.2

On an indictment for false pretences the prisoner cannot be convicted of any other offence, except an attempt to commit. that crime. If the evidence shows that the crime is really larceny by a trick and not false pretences. the prisoner is not entitled to be acquitted; he may still in a proper case be convicted of false pretences.3

Certain cases of false pretences have been dealt with by special statutes. Thus, by the False Personation Act, 1874,+ it is a felony punishable by penal servitude for life to falsely personate any person, or the heir, executor or administrator, wife, widow, next of kin or relation of any person with intent fraudulently to obtain any real or personal property, whether the property be actually obtained or not. offence is not triable at Quarter Sessions.

This

Personating a soldier in order to obtain his prize money, &c., is a felony punishable with penal servitude for life." Personating, or procuring another to personate, a seaman in

1 lb. p. 155.

See indictment, No. 10, in the Appendix.

Larceny Act, 1916, s. 44 (4). For the converse case, see s. 44 (3), ante, p. 356. 37 & 38 Vict. c. 36, passed in consequence of the famous Tichborne case. personating the owner of stocks and shares, see 24 & 25 Vict. c. 98, s. 3. The Army Prize Money Act, 1832 (2 & 3 Will. IV. c. 53), s. 49.

As to

order to obtain his pay or prize money from the Admiralty is a misdemeanour punishable with penal servitude for five years.1

Winning money at cards, &c., by fraud is covered by the Gaming Act, 1845, and is punishable as obtaining money by false pretences.

Again, by the Merchandise Marks Act, 1887," "every person, who

(a) forges any trade mark; or

(b) falsely applies to goods any trade mark or any mark so nearly resembling a trade mark as to be calculated to deceive;

4

(d) applies any false trade description to goods; or . . (f) causes any of these things to be done," is guilty of an offence under this Act, unless he proves that he acted without intent to defraud. He may on conviction on indictment be sentenced to two years' imprisonment with or without hard labour, or to a fine, or to fine and imprisonment.

So, too, by section 6, sub-s. 1, of the Fertilisers and Feeding Stuffs Act, 1906":"If any person, who sells any article for use as a fertiliser of the soil or as food for cattle,

(b) causes or permits any invoice or description of the article sold by him to be false in any material particular to the prejudice of the purchaser,

5

he shall, without prejudice to any civil liability, be liable on summary conviction for a first offence to a fine not exceeding twenty pounds, and for any subsequent offence to a fine not exceeding fifty pounds."

There is another offence closely analogous to the crime of false pretences, namely, obtaining credit by false pretences or fraud. By the Debtors Act, 1869, any person, who "in incurring any debt or liability has obtained credit under false pretences or by means of any other fraud," commits a mis

1 The Admiralty Powers, &c., Act, 1865 (28 & 29 Vict. c. 124), s. 8.

2 8 & 9 Vict. c. 109, s. 17; see R. v. Hudson (1860), 29 L. J. M. C. 145. 3 50 & 51 Vict. c. 28, s. 2 (1).

As to obliterating marks or making false marks on public stores, see 38 & 39 Vict. c. 25, ss. 4, 5. As to the false marking of anchors or chain cables or false statements in certificates concerning them, see 62 & 63 Vict. c. 23, ss. 13-16. 5 For sentences on summary conviction, see s. 2 (3) (i.).

66 Edw. VII. c. 27; and see Laird v. Dobell, [1906] 1 K. B. 131; Needham & Co. v. Worcestershire C. U. (1909), 100 L. T. 901.

7 32 & 33 Vict. c. 62, s. 13 (1). See indictment, No. 24, in the Appendix.