fendant did then obtain from the said J. Wood a certain valuable security, to wit, an order for the payment of the sum of £500 of lawful money, of the value of £500, the property of the said J. Wood, with intent to cheat and defraud him of the same; whereas in truth and in fact the defendant was not at the time of making such false pretence a captain in her said Majesty's said regiment ;(c) and it was objected upon error after judgment, 1st, that the count was bad for not showing that the alleged false pretence was made with intent to obtain the security; but the Court of Queen's Bench held that the count was not bad for omitting such allegation. 2dly, that the count ought to *have shown how the false pretence was calculated [*672 to effect the obtaining of the order; but the court held that this was matter to be shown by the evidence, and need not be shown by the indictment. 3dly, that it ought to have been shown that in fact the particular pretence did induce the party defrauded to part with the order; but the court held that it could not be necessary to state that there was no pretence besides that charged. Had the defendant shown that there was any other which caused the giving of the order, he must have been acquitted. 4thly, that the falsehood of the pretence was not properly made to appear. The pretence was that the defendant "then," that is to say, on the day and year aforesaid, was a captain; the subsequent allegation is that he was not so at the time of making the false pretence." Now he might have been a captain at the early part of the day, and ceased to be so before he made the supposed false pretence; but the court held that the averment was sufficient. And, lastly, that the count ought to have alleged that the security was unsatisfied; but the court held that after verdict the indictment was sufficient, under the 7 Geo. 4, c. 64, s. 21, as it followed the words of the 7 & 8 Geo. 4, c. 29, s. 53.(d)

Where an indictment alleged that the prisoner pretended that a certain paper produced by him was a good and valid promissory note for the payment of five pounds; but did not set out the instrument, which was a Bank of Elegance note; upon a case reserved it was contended that the instrument should have been set out in the indictment. There is no averment even of the purport of the paper. Wilde, C. J.: "We are of opinion that the objections are insufficient. With regard to the record, it can only be necessary to set out the instrument where the court could derive assistance. from seeing a copy of it on the record; as where the case turns on the nature and character of the instrument as distinguished from its quality of good or bad. The cases seem to show that this is the true criterion.' Alderson, B.: "It is not necessary to set out instruments of any kind in an indictment, except where it is material for the court to see that the thing described is described rightly. But here the charge is a false pretence. It is needless to set out instruments which are not in any way affected by the terms applied to them in the indictment."(e)

A count stated that A. Brown agreed with G. Wilson and J. Benson, in consid-, eration that A. Brown would receive divers iron rails, chairs, &c., from S. Atkins, the agent of a railway company, and convey them from St. Mary's to K., that G. Wilson and J. Benson would pay A. Brown a certain sum for the carriage of the said rails, &c. That it was the duty of S. Atkins whenever he delivered any such rails, &c., to A. Brown, to give to A. Brown certain tickets signed by S. Atkins, and containing the amount of rails, &c., delivered, and the place to which they were to be conveyed. That when A. Brown received such tickets he, after the carriage of the said rails, &c., gave such tickets to J. Brunt, as the agent of G. Wilson and J. Benson in that behalf; and that it then became the duty of G. Wilson and J. Benson to pay *A. Brown for the said carriage on the said goods in the said [*673 tickets mentioned. That the prisoners, A. Brown and J. Brown, well knowing the premises, falsely pretended to J. Brunt, as such agent as aforesaid, that A. Brown had received certain iron rails and chairs from S. Atkins, and that S. Atkins had given to A. Brown certain tickets as aforesaid signed by S. Atkins, containing the amount of the said goods so delivered by S. Atkins to A. Brown, and the place to which the said goods were to be conveyed, and that A. Brown had conveyed the same from St. Mary's to K. By means of which said false pretences the prisoners (c) The indictment added that the prisoner knew he was not a captain. (d) Hamilton v. The Queen, 9 Q. B. 271 (58 E. C. L. R.).

(e) Reg. v. Coulson, 1 Den. C. C. 592.

obtained from G. Wilson and J. Benson "a certain large sum of money, to wit, the sum of £90." It was urged in arrest of judgment that the count made the agreement material, and that only A. Brown was entitled to receive the money; but it was held that two persons might receive the money. Secondly, that the words "the same" referred to tickets; but it was held that the fair construction was that "the same" referred to goods. Thirdly, that the pretence must be made to the same person from whom the money was obtained, and that that must appear by the indictment; but it was held that there was nothing in the Act which made it necessary that the pretence should be made to the same person as the money was obtained from; and when it was said that "by means of the said false pretences" the money was obtained, that was a question of evidence; and if there were any means to show that the pretence to A. operated on the mind of B., it might be shown in evidence. Fourthly, that the tickets, being written documents, ought to have been set out; but it was held that the tickets need not be set out in hæc verba.(ƒ)

The prisoner was indicted for an attempt to obtain money by false pretences. He had insured his house and furniture, and a fire had happened, and a person from the insurance office called on the prisoner, who delivered to him an inventory of the goods, which he said had been burnt by the fire. Some of the goods mentioned in the inventory were afterwards discovered. The indictment did not allege any contract, under which the prisoner could make any claim The indictment charged the prisoner with having delivered a false inventory; but did not state wherein it was untrue. The indictment alleged that the prisoner made a claim, but no claim was proved beyond the delivering of the inventory. It was contended that the indict ment ought to have alleged a contract, which entitled the prisoner to make the claim. Secondly, it was not alleged that any claim was made for the loss sustained: a mere false pretence, unaccompanied by any claim, was no offence. Thirdly, the indictment ought to have specified the particulars in the inventory which were false. Platt, B., having considered the points, said there was so much in them that he should not give judgment, but would consult the judges.(g)

*One count alleged that the prisoner falsely pretended that he, having

*674] executed for Spencer and Roberts a certain quantity of work, there was then due and payable to him from Spencer and Roberts for and on account of the said quantity of work a certain sum of money (to wit), the sum of six shillings, being parcel of a larger sum (to wit), the sum of 16s. 7d. claimed by him for the said quantity of work. In other counts it was alleged that the prisoner falsely pretended that there was due and owing to him from Spencer and Roberts the whole amount of a certain sum of money (to wit), the sum of nineteen shillings (different sums were inserted in the several counts), for and on account of a certain quantity of work executed by him for Spencer and Roberts; whereas the whole amount was not due and owing; and, upon a case reserved after a verdict of guilty, it was held that the indictment was bad. Considering each of these allegations as an allegation merely that so much was "due and owing," it might involve many questions both of law and fact. It might involve the price to be paid, the value of the work, the credit to be given, and the terms of payment. An indictment for false pretences must disclose a false pretence of an existing fact. Here there was merely a fraudu lent claim in respect of a quantum meruit of the prisoner's work and labor, and the indictment would be supported by evidence that the prisoner made a false estimate of the value of his work. The false pretence consisted of nothing more than what might be matter of opinion, and this indictment might be supported by evidence of a mere wrongful overcharge, or a misrepresentation of a matter of law. The false statement that money is due and owing does not necessarily involve a false pretence of an existing fact.(h)

(f) Reg. v. Brown, 2 Cox C. C. 348, Patteson, J., after consulting Coleridge, J. It was also objected that the money was not sufficiently described; but it was held that it was. See now the 14 & 15 Vict. c. 100, s. 18, ante, p. 321. The third ruling in this case was recognized by Williams, J., in Reg. v. Butcher, Bell C. C. 6.

(g) Reg. v. Wakley, 2 Cox C. C. 484. It does not appear what became of the case, and the report is very unsatisfactory.

(h) Reg. v. Oates, Dears. C. C. 459. This decision seems to be wrong. In an indict

An indictment for obtaining goods by false pretences must formerly have stated them to be the property of some person, and it was not sufficient to state that they were obtained from a person with intent to defraud that person of the same.(i) And if such an indictment omitted to state to whom the goods belonged, it was bad upon error, and the 7 Geo. 4, c. 64, s 21,(j) did not cure the defect.(k)

[*675

Where the first count of an indictment charged that the prisoner did falsely pretend to J. Lovelock that he was sent by W. P. for an order to go to Bracey's (meaning J. Bracey, a shoe factor) for a pair of high shoes; by means of which false pretence he unlawfully obtained from the said J. Bracey one pair of shoes of the goods and chattels of the said J. Bracey, with intent to cheat the said J. Lovelock of the price and value of the said shoes, to wit, of the sum of nine shillings of the moneys of the said J. Lovelock; and the second count charged that the prisoner did falsely pretend to the said J. Lovelock that W. P. had said that the said J. Lovelock was to give him an order to go to Bracey's for a pair of high shoes; by means of which false pretence he unlawfully obtained from the said J. Bracey, in the name of the said J. Lovelock, one pair of shoes, of the goods and chattels of the said J. Bracey, with intent to cheat the said J Lovelock of the same; the prisoner having pleaded guilty, judgment was arrested, on the ground that neither count charged an offence within the 7 & 8 Geo. 4, c. 29, s. 53.(1)

A count stated that the prisoner unlawfully pretended to H. G. H. that he intended to marry her on the 8th of February, and that he had purchased a suit of clothes for the wedding, for which he wanted the sum of £4 to pay for the same; whereas the prisoner did not intend to marry H. G. H., nor did he ever purchase a suit of clothes for the said wedding. The prisoner had paid his addresses to H. G. H., and the banns had been published with his sanction. After the first publication the prisoner met H. G. H. at a draper's shop, by appointment, in order that he might there buy a suit of clothes for the wedding. He accordingly bought a suit of clothes for £4, and asked her for £4 to enable him to pay for them, and she gave him £ for that purpose. The jury found the prisoner guilty; but Rolfe, B.,

ment for this offence the pretence may either be laid in the terms actually used, or in what are substantially the same; and consequently it is uncertain, on the face of the indictment, which course is adopted. The first fallacy that runs through the judgment is the assumption that the indictment does not state the pretence that was actually used; no one can doubt that if a person, having done a certain quantity of work, writes a letter, and says that a pound is due and owing for that work, knowing that 58. alone is due, with intent to defraud his employer, that is an offence within the Act, and an indictment using the very terms of the letter would clearly be good: and that was substantially this case; for the prisoner obtained the money by altering the sum in an account into a larger one, and presenting the account so altered to his employers. Another fallacy was the considering the pretence apart from its being false and made with intent to defraud. The case was clearly put on its right ground by Maule, J. (who seems to have left the court before judgment was given): "The allegation in the indictment being in effect that the prisoner made a statement that a debt was due and owing to him, knowing that statement to be false, and for the purpose of effecting a fraud, it excludes the idea of a disputed account, or that what is due and owing is a conclusion of law, and amounts to a false statement that a debt was existing." Lastly, another fallacy was that the allegation was treated like an allegation in a count for work and labor, instead of being the statement of a false pretence. If a man alters an account which shows 58. to be due to him, and makes it £1 58., and then presents it, and obtains the money, is not this a pretence that the latter sum is due and owing to him? and how can an indictment more correctly state the pretence than that he pretended that that sum was due and owing to him? The court doubted the validity of the indictment in Reg. v. Woolley, 1 Den. C. C. 559, ante, p. 623, on the same grounds as they decided this case.

(i) Reg. v. Norton, 8 C. & P. 196 (34 E. C. L. R.), Alderson, B., Williams and Coltman, Js.

(j) Ante, p. 327.

(k) Rex v. Martin, 8 A. & E. 481 (35 E. C. L. R.); Sill v. Reg., 1 E. & B. 553 (72 E. C. L. R.); Reg v. Bullock, Dears. C. C. 653.

J.

(2) Reg. v. Tully, 9 C. & P. 227 (38 E. C. L. R.), Gurney, B., after consulting Patteson, In Reg. v. Brown, 2 Cox C. C. 348, Patteson, J., said, "Tully's case was a peculiar one, and I am not quite sure that that case could be supported if carried into a court of error."

doubted whether the pretence stated was one on which a conviction could take place; and, upon a case reserved, the judges held the conviction wrong.(m)

Where an indictment alleged that Pawson was possessed of a mare, and Henderson of a horse, and that Henderson and Barlow "unlawfully and fraudulently did falsely pretend to Pawson that Barlow was then and there possessed of a certain sum of money, to wit, the sum of £12," and that if Pawson would exchange the said mare for the said horse, Barlow was willing to purchase the said horse of Pawson, and then and there to pay Pawson the sum of £12; whereas Barlow was not then possessed of the said sum of £12: the prisoners pleaded autrefois acquit, to which there was a demurrer; and, on a case reserved, it was held that the *indict*676] ment was bad, because it did not allege that the prisoners knew that Barlow had not the money.(n)

The indictment alleged that the prisoner "unlawfully did falsely pretend to C. S. that a paper writing, which was as follows::

"Folio
"15.610.

"London Friendly Union, 71, Leadenhall Street.

"Established for the encouragement of trade, and to give employment to indus

trious artisans.

"Received of

Two Shillings and Sixpence, the December

Quarter's subscription to this Institution. "1842

"£0 2 6"

"Treasurer, W. J. THURNELL.

was a good £5 Ledbury bank note. There were other similar counts, but it was not alleged in any of them that the prisoner knew that the paper writing was not a £5 note. It was objected, on the authority of Reg. v. Henderson (9), that this indictment was bad, as it did not allege that the prisoner knew that the paper was not what he alleged it to be; and Wightman, J., after taking time to consider, held that the indictment was bad. The jury might find the prisoner guilty on this indictment, although it was not proved that he knew that the instrument was not such as he stated it to be; and as the prosecutor was deceived by the instrument, so might the prisoner have been; and the defect was not aided by the statement of the intent (p)

But where an indictment alleged that the defendant "unlawfully did falsely pretend to H. H., that he the defendant had caused a writ of right to be issued at the suit of M. W., &c., "By means of which false pretences the defendant did unlawfully obtain from H. H. £1," with intent, &c., and the defendant was found guilty, the Court of Queen's Bench held that, as the indictment used the words of the statute, it was sufficient, after verdict, under the 7 Geo. 4, c. 64, s. 21.(q)

It has been held that if the indictment state that the prisoner feloniously pretended, it is bad. The indictment alleged that the prisoner "unlawfully, knowingly, and designedly did feleniously pretend ;" and Law, R., thought that the indictment was bad, and after consulting Bosanquet and Taunton, Js., stated they were of the same opinion, and the prisoner was therefore acquitted.(r)

(m) Reg. v. Johnston, 2 M. C. C. R. 254.

(n) Reg v. Henderson, 2 M. C. C. 192; C. & M. 328 (41 E. C. L. R.). This case was only argued for the prisoners. As to the plea of autrefois acquit in this case, see ante, p. 55.

(0) Supra.

(p) Reg. v. Phillpotts, 1 C. & K. 112 (47 E. C. L. R.). (9) Reg. v. Bowen, 13 Q. B. 790 (66 E. C. L. R.), Lord Denman, C. J., observed that Reg. v. Henderson, supra, note (n), was not fully argued, and that no reference was made to the 30 Geo. 2, c. 24, s. 1, which contained the words "knowingly and designedly." In Reg. . Gruby, 1 Cox C. C. 249, it was held that an indictment alleging that the prisoner "unlawfully did falsely pretend" that a document was a lease for nine years, was sufficient (after plea), without any allegation of knowledge that the pretence was false. Reg. . Henderson was there distinguished as not having the word "unlawfully" in the indictment; but this was a mistake, as that word is in 2 M. C. C. 192.

(r) Rex v. Walker, 6 C. & P. 657 (25 E. C. L. R.); but see Rex v. Carradice, R. & R. 205, ante, p. 378, where an indictment for taking fish alleged them to have been "feloniously" taken, and the judges thought that did not vitiate the indictment. C. S. G.

An indictment for false pretences alleged that the prisoner obtained a check for the sum of £14 6s. 3d. of the moneys of *W. Willis, and it was objected [*677 that the indictment did not show to whom the check belonged, and that the check was not money; but, upon a case reserved, it was held that the indictment was good, as the words "of the moneys" might be rejected as surplusage.(s)

It has been held that several defendants might be charged jointly in the same indictment, if they were all acting in concert together, and taking part in the same transaction.(t)1 And it was holden also to be no objection in arrest of judgment, that the indictment contained several charges of the same nature in the different counts. Lord Kenyon, C. J., said, "This objection would be well founded if the legal judgment on each count was different; it would be like a misjoinder in civil actions. But, in this case, the judgment on all the counts is precisely the same; a misdemeanor is charged in each. Most probably the charges were meant to meet the same facts; but, if it were not so, I think they may be joined in the same indictment."(u)

Where the goods were obtained by a forged instrument, which fell within the class of instruments, the forging of which was made felony by statute, the indictment must formerly have been for forging the instrument, as the misdemeanor was merged in the felony.(v) But if the offence were now to turn out to be felony, the prisoner might be convicted, unless the court were to discharge the jury, and direct the prisoner to be indicted for felony, under the 14 & 15 Vict. c. 100, s. 12.(w) Where the prisoner, a servant of Mr. Warman, applied to Bendon's wife for payment of a debt of seventeen shillings due to Warman: she refused, unless she had Warman's receipt, and the prisoner went away and returned with the following document, upon which she paid the money :

Received from

Mr. Bendon, due to
Mr. Warman, 17s. Od.
Settelled.

Six judges thought the document was a forged receipt; but five judges thought it did not purport to be the receipt of Warman, and therefore was no forgery, as if it was to be taken the receipt of the prisoner, it was no forgery; and that the offence of the prisoner was the obtaining money under false pretences. (x) Wherever an instrument is of such an ambiguous character, it is prudent, since the 14 & 15 Vict. c. 100, s. 12, to indict for obtaining money by false pretences, because then the prisoner *may either be convicted on that indictment, or an indictment for felony may be preferred by the direction of the court.

[*678

(8) Reg. v. Godfrey, D. & B. 426, decided on the authority of Reg. v. Radley, 1 Den. C. C. 450.

(1) Reg. v. Martin, 8 A. & E. 481 (35 E. C. L. R.); Reg. v. Moland, 2 M. C. C. R. 276, post, p. 693.

(u) Rex v. Young, ante, p. 620. In one case it is reported that Maule, J., stated that several counts, charging separate offences by obtaining money under distinct false pretences from different persons, could not be included in the same indictment: Reg. v. Bassett, 1 Cox C. C. 51. But as the prosecutor was put to his election, and the previous case was not cited, and as that very learned judge well knew that the general rule in misdemeanors is that any number of misdemeanors may be included in the same indictment, probably the case is incorrectly reported. See also ante, p. 88, Rex v. Hempstead, MS., Bayley, J., and R. & R. 344.

(v) Foster 373; Rex v. Evans, 5 C. & P. 553 (24 E. C. L. R.); Reg. v. Anderson, 2 M. & Rob. 469. See other similar cases in the chapter on Forgery, post. (w) See the section, ante, vol. 1, p. 927.

(x) Reg. v. Inder, 1 Den. C. C. 325.

1 Where two persons are jointly indicted for obtaining goods by false pretences, made designedly and with intent to defraud, evidence that one of them, with the knowledge, approbation, concurrence and direction of the other, so made the false pretences charged, warrants the conviction of both: Comm. v. Harley, 7 Metc. 462. And it is not necessary in order to convict the defendants in such cases, to prove that they, or either of them obtained the goods on their own account, or derived, or expected to derive, personally, any pecuniary benefit therefrom: Ibid.