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HILL V. THE TOTTENHAM URBAN DISTRICT COUNCIL.
Lord RUSSELL, C.J.-I am of opinion that this appeal must fail, and that it must fail on two grounds. In the first place I think that the decision of the revising barrister was right, and in the second place, whether it was right or not, sect. 42 of the Parliamentary Registration Act 1843, which it is admitted is the only provision under which a right of appeal can be claimed, gives in a case like this no right of appeal. Now as to the first ground, it appears to me to be quite clear that at the time the notice of selection of qualification was given by the appellant, he was not in the circumstances of this case in a position to give effective notice of selection. In order that effective notice of selection should be given, it is necessary that the name of the person giving the notice should, in the words of sect. 28 (14) of the Parliamentary and Municipal Registration Act 1878, appear to be entered more than once as a parliamentary voter on the list of voters for the same parliamentary_borough." Now, was that the case here ? What are the facts? The appellant's name was on the lists of voters in respect of what I may call a residential qualification. Besides that there was a claim by him to be put upon the lists in respect of which I may call a business-place qualification. This was the state of affairs when he gave notice in due form that he selected as his voting qualification his place of business. Now at that time his name did not appear on the list as having a business-place qualification. He had only sent in a claim to be put on the lists in respect of it. His name did not " appear more than once as a parliamentary voter on the lists of voters for the same parlia mentary borough" at all. He had merely made a claim that it should appear more than once, but that claim had not been adjudicated upon. As far as the lists showed he had no second qualification. Therefore it follows that sect. 28 (14) of the Parliamentary and Municipal Act 1878 had no application. The first and fatal objection then to this appeal is that when notice of selection was given the appellant's did not in fact appear more than once in the lists of voters. The other point is equally fatal. The sole right of appeal it is admitted depends upon sect. 42 of the Parliamentary Registration Act 1843. At the time that Act was passed this question could not have been in the mind of the Legislature, since the right to select a qualification for voting was then non-existent. However, of course that is not conclusive that there is no right to appeal. If the words of the section are wide enough to allow appeals in claims such as this we must allow them. Is there any right of appeal under sect. 42? (Reads section.) It appears to me that the section gives a right of appeal only in the case of claims to have your name put on the lists and objections to names being upon the lists, and lastly where your name is expunged from the lists.
Does this case come within any of these classes? I do not think so. Here the appellant's name was on the lists. His claim was to have it put on more than once. That claim was allowed. The sole point was whether he should be allowed to choose on which qualification he should vote. That I do not think can be considered a case within sect. 42. Counsel for the appellant argued with not a little ingenuity that it comes within
the words of the section, since in effect the appel lant's name was expunged as it was not effectively retained on the lists-that is, it was not retained in a manner which entitled the appellant to vote in respect of the second qualification. But the appellant can vote in respect of a diffe. rent qualification. He is not denied a vote. His choice as to the qualification on which he may vote is denied him, not his right to vote. And the denial of the choice is a small matter-it is limited to the current year. At the same time I agree that the circumstances in the case of Reg. v. McConnell, Revising Barrister of Liverpool (71 L. T. Rep. 636; (1895) 1 Q. B. 155) differed from those in this case. But at the same time the judgment in that case shows that we are not to give too wide a reading to sect. 42. The effect of that judgment in my opinion is that it is only in cases where a vote is improperly allowed or denied that an appeal is to be permitted.
WILLS, J.-I agree. It is unnecessary to add anything as to the point whether this is a case where if there is an appeal the appeal should on the merits be allowed. As to the other point I quite agree that there is no appeal. I cannot see how this case can be brought within the words of sect. 42 of the Act of 1843. Nor is there anything in the later Acts to extend the right of appeal to it. Either the Legislature did not think of it, or if it did think of it thought it of too trivial a nature to form the subject of an appeal.
LAWRANCE, J.-I concur.
Appeal dismissed. Solicitors for the appellant, Friend, Beal, and Tarbit, Exeter.
Solicitors for the respondent, H. Mear, for Dunn and Baker, Exeter.
Nov. 18 and 21, 1898. (Before BRUCE, J.)
HILL V. THE TOTTENHAM URBAN DISTRICT COUNCIL. (a)
Principal and agent-Public body-NegligenceMaking up road-Dangerous work-Employcontractor-Liability of public body. Where a public body takes upon itself the makingup of a road, such work being of itself, unless carefully done, likely to be dangerous to the public, a duty is cast upon such public body to see that no dangerous obstructions are allowed to exist to passengers passing along the road. That duty cannot be evaded by employing a contractor to carry out the work.
THIS was an action tried before Bruce, J. and a common jury.
It was brought by the plaintiff against the defendants to recover damages for personal injuries under the following circumstances:
The plaintiff, who was a furniture porter, was being driven on the 16th Sept. 1897 on a pantechnicon van along a road which was under the control of the defendant urban district council. While passing under a railway bridge, owing to a ridge having been left in the road after it had been repaired, he was jolted against one of the (a) Reported by W. DE B. HERBERT, Esq.. Barrister-at-Law.
HILL V. THE TOTTENHAM URBAN DISTRICT COUNCIL.
girders of the bridge and suffered serious injuries.
This road was one in respect of which the defendants had served notices on the frontagers to make, and those notices not having been complied with, they had, in pursuance of sect. 150 of the Public Health Act 1875, done the work themselves. They employed a contractor to do the work, which was completed in March 1897 when it was opened for traffic, but for the following six months the contractor was responsible for repairs.
On the 22nd Sept. 1897 the road was examined and passed by the defendants' surveyor and taken over by them. During the continuance of the work the defendants' surveyor exercised supervision and control.
J. A. Hamilton for the plaintiff.-The contract in this case is indistinguishable from that in Penny v. The Wimbledon Urban District Council (78 L. T. Rep. 748; (1898) 2 Q. B. 212), and I submit that the principles laid down in that case govern the present one. The defendants here
have identified themselves with opening a dangerously obstructed road. The passage, in the opinion of Blackburn, J., delivered to the House of Lords, in The Mersey Dock Trustees v. Gibbs (14 L. T. Rep. 677; 11 H. of L. Cas. 686), is in point. He says, at p. 681: "It is necessary, in considering these authorities, to bear in mind the distinction between the responsibility of a person who causes something to be done which is wrongful, or fails to perform something which there was a legal obligation on him to perform, and the liability for the negligence of those who are employed in the work. This distinction is well stated in Pickard v. Smith (4 L. T. Rep. 470), by Williams, J.: Liability for doing an improper act depends upon the order given to do that thing; and the liability for the omission to do something depends entirely on the extent to which a duty is imposed to cause that thing to be done; and in the last two cases it is quite immaterial whether the actual actors are servants or not." The urban council in this case are liable, whether the contractors were independent or not. They have caused a dangerous thing to be done, and it is their duty to see that all precautions are taken, and they cannot shelter themselves behind a contractor. The rule stated by your Lordship on the second point in Penny v. The Wimbledon Urban District Council (ubi sup.) will cover this case: 'When a person employs a contractor to do work in a place where the public are in the habit of passing, which work will, unless precautions are taken cause danger to the public, an obligation is thrown upon the person who orders the work to be done to see that the necessary precautions are taken, and that, if the necessary precautions are not taken, he cannot escape liability by seeking to throw the blame on the contractor." He also referred to
Hardaker v. The Idle District Council, 74 L. T.
Kemp, Q.C. and Montague Lush for the defendants. No negligence in this case has been brought home to the defendants. You must show the relationship of master and servant, or there can be no liability, with two exceptions. Those are: (1) where you employ a person to do something for you which you are under a statu
tory duty to perform, as where a railway company employs a contractor to fence:
Hole v. The Sittingbourne and Sheerness Railway Company, 3 L. T. Rep. 750; 6 H. & N. 488; Hardaker v. The Idle District Council (ubi sup.). (2) where the work that is being carried out is of itself dangerous, then you cannot delegate and escape responsibility. We submit that we do not come within either of these exceptions, and the relationship of master and servant has not been made out, for, although there may be control, that of itself does not create such relationship. They referred to
Reedie v. The London and North-Western Railway
Hamilton in reply.
BRUCE, J.-This case I think is governed by Penny v. The Wimbledon Urban District Council (78 L. T. Rep. 748; (1898) 2 Q. B. 212). It seems to me that the determination of the case depends upon the question and the answer to the question : Does the making up of a road cast upon the person making it up the duty of taking care that no obstruction, at least, no dangerous obstruction shall be offered to the public? It seems to me that the answer to that question must be yes. You cannot make up a road without having imposed upon you the duty of taking care that in the work of making up the road no danger or no injury shall be offered to the public. It is quite clear that the moment you begin to alter a road, or break it up, or do anything to the surface of the road, unless it is carefully done there must be danger to the public. Therefore, when the local boards take upon themselves the making of the road, there is a duty imposed upon them of taking care that no dangerous obstructions are allowed to exist to passengers passing along the road. If that be so they could not evade their duty by employing a contractor to make up the road. If there was a duty imposed upon them, and I think there was, they could not escape that duty by employing a contractor. Again, I think also that the local board are liable in the case, because after the work was completed, they allowed people to pass along the road at a time when the ridge must have been there. Whether they knew of it or not does not matter, because if they did not know they ought to have known it, and when they removed the poles that had been placed there during the progress of the work, and allowed the public to pass over the road, there was a neglect of duty which renders them liable. On the other point decided in Penny_v. The Wimbledon District Council (ubi sup.), I do not feel so sure that the contracts in the two cases are similar. If my decision depended upon that point I should take time to examine the contract carefully, but as the decision I have already given on the other ground, is enough to support the judgment, I do not think that it is necessary for me to go minutely into the terms of the contract. Therefore, on the ground that I have indicated, I think that the principle laid down in the second point in Penny v. Wimbledon District Council (ubi sup.) is sufficient to govern this case.
Judgment for the plaintiff. Solicitors for the plaintiff, Rogers, Hartley, and Bastard.
Solicitors for the defendants, Howard and Shelton.
CROWN CASES RESERVED.
Aug. 6 and Nov. 5, 1898.
(Before Lord RUSSELL, C.J., HAWKINS, WILLS, WRIGHT, and BRUCE, J.J.)
REG. v. BIRD. (a)
Evidence-Statement by prisoner-DepositionEvidence of defendant-11 & 12 Vict. c. 42, s. 18 -48 & 49 Vict. c. 69, s. 20.
The statement which a prisoner makes in giving evidence before the magistrates by whom he is committed for trial, may be used as evidence against him at the trial, and the deposition containing such statement may be put in evidence at the trial, although he then declines to give evidence.
If also, having given evidence when before the magistrates, he replies to questions put to him under the Indictable Offences Act (11 & 12 Vict. c. 42, s. 18), whether he desires to say anything in answer to the charge, by saying that his evidence already given is true, the whole of that evidence and his reply to the question may be given in evidence against him as a statement under that Act. CASE stated by the Recorder of Cambridge.
Fred Bird was tried before me at the last quarter sessions for the borough of Cambridge for an indecent assault upon a girl under ten years of age.
At the hearing before the magistrate the prisoner was sworn and gave evidence, which was taken down in writing, read over to and signed by him and by the magistrate, and after the usual caution he was further asked: "Having heard the evidence do you wish to say anything in answer to the charge?" Whereupon he made this statement: "What I have already said is true, I have no witnesses to call." This statement was in due course returned with the depositions to the court, and was put in evidence for the prosecution.
The counsel for the prisoner having stated that he should not call the prisoner as a witness, and the prisoner also having declined to give evidence, counsel for the prosecution proposed to put in evidence the prisoner's deposition before the magistrate.
To this the prisoner's counsel objected, on the ground that the prisoner was present in court and was a competent, though not a compellable, witness; and further that what he had said before the magistrate being upon oath, was not admissible.
As to this I expressed no opinion, but I was of opinion, and so directed the jury, that when the prisoner stated in answer to the charge "What I have already said is true," he meant that the evidence which he had already given before the aagistrate was true; and that it was in fact a restatement by him, not on oath, of what he had already stated on oath, and I allowed the deposition to be read.
The jury convicted the prisoner, and in answer to a question put by me, said that the prisoner ineant by "What I have already said is true" that the evidence which he had already given before the magistrate was true.
I admitted the prisoner to bail to come up for judgment if called upon at the next ensuing quarter sessions.
(a) Reported by A. A. BETHUNE, Esq., Barrister-at-Law.
[CR. CAS. RES.
I respectfully request the opinion of the court whether the prisoner's deposition was rightly admitted. If it was the conviction is to stand -if not it is to be quashed.
J. R. BULWER, Recorder of Cambridge. (a) After the depositions of the witnesses for the prosecution had been taken, the prisoner was asked by the magistrate whether he desired to call any witness. He replied that he had no witnesses to call, but desired to give evidence himself. Thereupon, no previous caution having been given him, he was sworn and gave evidence. It was not until after he had given evidence and signed his depositions that he was cautioned, and made the statement given above.
J. R. BULWER.
Ellis for the defendant.-The prisoner was a competent, but not a compellable witness : (Criminal Law Amendment Act 1885, 48 & 49 Vict. c. 69, s. 20). The effect of putting in the deposition taken before the magistrates was to make the prisoner a witness against his wish.
Sutton, for the Crown, was not called upon to argue.
Lord RUSSELL, C.J.-It is, I think, as clear as possible that everything was regular in these proceedings. This evidence was admissible in the first place because it was a statement made on oath, for when the prisoner was charged before the magistrates he was sworn and gave his evidence, which was taken down in writing. Then the magistrates, as bound by the Indictable Offences Act 1848 (11 & 12 Vict. c. 42), s. 18, put the question whether he desired to make any statement in answer to the charge, and in reply he says: "What I have already said is true." This statement is by statute admissible as evidence against him. But on the authority of Reg. v. Erdheim (74 L. T. Rep. 734; 18 Cox C. Č. 355) his previous statement, even if he had not made the second statement, would have been admissible. On these grounds I think that the conviction must be affirmed.
HAWKINS, WILLS, WRIGHT, and BRUCE, JJ. concurred. Conviction affirmed. Solicitor for the Crown, Solicitor to the Trea
Solicitor for the prisoner, Ernest Vinter, Cambridge.
Nov. 5 and 24, 1898.
(Before Lord RUSSELL, C.J., HAWKINS, WILLS, WRIGHT and BRUCE, JJ.)
REG. v. ELLIS. (b)
Jurisdiction-False pretence-Obtaining goods in England by false pretence made in ScotlandGist of the offence-Debtors Act 1869 (32 & 33 Vict. c. 62).
A bankrupt who within four months next before the presentation of a bankruptcy petition against him has obtained goods by any false representation, and has not paid for the same, is guilty of a
(a) The case was before the court in Trinity Sittings, but was remitted to the learned recorder in order that it might be stated whether the prisoner was cautioned by the magistrates before he gave his evidence.
(b) Reported by A. A. BETHUNE, Esq., Barrister-at-Law.
misdemeanour under sect. 11 (13) of the Debtors Act 1869 (32 & 33 Vict. c. 62), and any person who in incurring any debt or liability has obtained credit under false pretences is guilty of a misdemeanour under sect. 13 (1) of that Act. The essential element of these offences is the obtaining in the one case property and in the other credit, and though the making of the false pretence is a necessary element, the offence is committed in the place where the property or the goods for which credit is given are obtained. A bankrupt, by means of false pretences made in Scotland, obtained goods and credit for goods delivered in the county of Durham.
Held, that the offences were committed in the county of Durham, and within the jurisdiction of the Assize for that county.
THE following case was stated by Day, J. for the opinion of the court.
Frederick George William Ellis was charged before me at the Durham Summer Assizes under 32 & 33 Vict. c. 62, s 13 (1), that he, having 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 representation obtain certain property from Messrs. Arthur and Co. Limited, of Glasgow, amounting in the whole to 17261. 158. 10d., on credit, and has not paid for the
The said Frederick George William Ellis was also charged under 32 & 33 Vict. c. 62, s. 11 (13), that he, between the 31st Aug. 1897 and the 18th Nov. 1897, in the county of Durham, in incurring certain debts or liabilities of various sums, amounting in all to the sum of 17267. 15s. 10d. to Messrs. Arthur and Co. Limited. of Glasgow, did unlawfully obtain credit under certain false pretences, to wit, for that he falsely represented to Mr. John Robert Kay, one of the directors of Messrs. Arthur and Co. Limited, that he took stock at the end of Dec. 1896, that such stock was very near 3500l. in value, that his liabilities were 14007., that he gave no credit, that he had 1007. of his own, that he had a large shop which cost him 4001. bought through a building society, to be repaid in thirteen years by monthly instalments at say 31. 148. per month, that his rent and taxes would come out about 100l. per annum including the building society.
Both charges referred to the same goods, and the evidence in respect of both charges was the
Thomas Gibson Noble, the representative at Newcastle and Gateshead of Messrs. Arthur and Co. Limited, of Glasgow, proved that he opened an account with the prisoner, who then carried on business as a draper at Gateshead, in the county of Durham, in July 1896, and from that date until July 1897 various orders were booked for the prisoner and executed; that in July 1897 he began to be afraid to give the prisoner further credit without the instructions of his principals in Glasgow; that he arranged that the prisoner should have an interview with his principals for the purpose of informing them as to his financial position, which interview took place on the 1st Sept. 1897, at Glasgow; that no representations of any kind were made to him or in his presence; that after the interview of the 1st Sept. 1897 he received instructions from his principals to continue to MAG. CAS.-VOL. XIX.
[CR. CAS. RES.
supply the prisoner, and the prisoner also informed him that the interview had been satisfactory both to his principals and to the prisoner; that in consequence of these instructions and the prisoner's statement, he took samples to the prisoner in Gateshead, booked orders there, and transmitted most of the orders to Glasgow to be executed, but that some of the orders were executed at Gateshead, and the goods delivered there by his porters; that the goods supplied in pursuance of such orders are the subject of the charges against the prisoner.
John Robert Kay, the managing director of Messrs. Arthur and Co. Limited, of Glasgow, proved that he had an interview with the prisoner in Glasgow on the 1st Sept. 1897; that at that interview the prisoner made to him the representations alleged in the charge; that the said interview was the only interview he had with the prisoner, and the only representations made to him were made verbally, and at that interview, that in consequence of the representations then made, he gave instructions to Mr. Noble to continue to take orders from the prisoner.
Evidence was also given to prove that the said representations were false, and that the prisoner knew they were false, and that he presented a bankruptcy petition against himself on the 23rd Dec. 1897, and that he was adjudged a bankrupt on the same day.
There was no evidence to show whether the
carriage of the goods sent from Glasgow was paid by Arthur and Co. or by the prisoner.
The jury returned a verdict of guilty.
At the close of the case for the prosecution, counsel for the defence took the objection that the offence was completed in Glasgow, and no part of the offence was committed in the county of Durham, and there was no jurisdiction.
The only question for the consideration of the court is, whether the prisoner could be indicted and tried for the offences aforesaid, or for either of them, in the county of Durham.
If he could, the conviction is to stand; if not, the conviction is to be quashed.
JOHN C. DAY.
E. Shortt for the prisoner.-As to the charge of obtaining goods by false pretences, the representations which constituted the false pretences were made in Glasgow. There was no continuing false pretence, as in
Reg. v. Martin, 15 L. T. Rep. 541; 10 Cox C. C. 383;
The act made criminal by the Debtors Act 186 was therefore committed in Glasgow, and not in the county of Durham. Nor did the prisoner obtain credit in the county of Durham, for obtaining credit means obtaining permission to defer payment (Reg. v. Dawson, 59 L. T. Rep. 932; 16 Cox C. C. 556), and that permission was given in Glasgow.
H. Sutton for the Crown.-The offences were completely perpetrated in Gateshead. The gist of the first offence is the obtaining goods, as the gist of the offence of obtaining money by false pretences is obtaining the money:
R. v. Buttery; cited in R. v. Burdett, 4 B. & Ald., at
The goods in this case were delivered, and therefore obtained in Gateshead. The cases of obtaining
money by means of false representations contained in letters are analagous:
Reg. v. Jones, 4 Cox C. C. 198; 1 Den. C. C. 551; Reg. v. Holmes, 49 L. T. Rep. 540; 15 Cox C. C. 343; 12 Q. B. Div. 23;
Reg. v. Leech, 7 Cox C. C. 100.
The case of crimes committed partly in one county and partly in another is provided for by 7 Geo. 4, c. 64, but, even if that Act does not apply to Scotland, the facts in this case show a crime committed wholly in the county of Durham. The offence of obtaining credit under false pretences was committed in Gateshead, because it was there that the goods were delivered, and, until the goods were delivered, there was no debt.
E. Shortt in reply.-The Debtors Act 1869 does not apply to Scotland. What was done in Glasgow was, therefore, not part of an offence. In the case of an offence committed partly in one county and partly in another, an entire offence is committed within the jurisdiction, and the question was, before the passing of 7 Geo. 4, c. 64, in which county should the offender be indicted. But here no offence was completed.
Cur. adv. vult.
Nov. 24.-WILLS, J.-The judgment which I am about to deliver is one with which the majority of the court concur. The prisoner was indicted
at the Durham Summer Assizes 1898 under 32 & 33 Vict. c. 62, s. 11, sub-sect. 13, for that he, having 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 and Co. Limited, of Glasgow, amounting in the whole to 17261. 15s. 10d., on credit, and has not paid for the same, and under sect. 13, subsect. 1 of the same Act for that he, between the 31st Aug. and the 18th Nov. 1897, in the county of Durham, in incurring certain debts or liabilities of various sums amounting in all to 17267. 15s. 10d. to Messrs. Arthur and Co. Limited, 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 and Co. Limited, 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 his principals at Glasgow as to his financial position. Thereupon on the 1st Sept. 1897 the prisoner saw Kay, the managing director of Messrs. Arthur and Co. Limited, 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. The 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
[CR. CAS. RES.
at Gateshead, and were delivered by his porters to the prisoner there. The proof of bankruptcy on the necessary dates was complete, and the only question is whether any offence was proved which the Assize Court at Durham, 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 propositions. 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 the 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 crimewithout 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 susstained. 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 where 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 any 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 give rise to the present question is not of so frequent occurrence as to make it surprising 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 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 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 R. v. Burdett (3 B. & Ald. 717; 4 B. & Ald. 95). But if there is distinct authority sufficiently germane to render such a task superfluous, it is, as it seems to me, equally unnecessary and inadvisable to resort to it. In my opinion there is such authority, and I now proceed to state what