Oldalképek
PDF
ePub

payments, with a payment to Susey Ambler, 8071, of the sum of

4177. 13s.

The secretary of the society absconded in 1868 or 1869; and on examination of the accounts of the society, a large deficit was discovered.

The present secretary, W. Wadsworth, was called as a witness for the prosecution, and he proved that, if a depositor at a fixed date wished to withdraw the whole or any part of his deposit, a notice of one month was required by the society's rules, but he did not know whether or not that rule had not been frequently dispensed with; he proved that it was the custom of the agents to write to the secretary at Manchester each month, sending in an account of the probable withdrawals of money, for which the agent had, or ought to have had, notice, and that the secretary thereupon sent down to the agent sufficient funds for that purpose; he also proved that in the books of the society it appeared that the sum of 4177. 13s. had been paid in October, 1867, to Susey Ambler, and produced the receipt before mentioned. He stated that he had carefully searched through the documents, but could find no order for the payment of that sum signed by S. Ambler, or any document relating to that payment, except the monthly account and the receipt; nor could he find any letter from the agent giving notice that Susey Ambler required a return of a portion of her deposit. He stated that receipts were required, and that it was the duty of the agents not to pay without receipts, and to forward the receipts to the office, when the sums would be properly entered in the books of the society.

He also proved that the prisoner was a director of the society in the years 1868 and 1869.

It was objected, on the part of the prisoner, that under 24 & 25 Vict. c. 98, s. 24 (1), this indictment must fail, as the document produced was only a receipt for money paid, and as the word "receipt" was not in that section; and that it was clear from the evidence that the money was paid to the prisoner by the secretary

[merged small][merged small][merged small][ocr errors]

1870

THE QUEEN

บ.

ΚΑΥ.

1870

v.

KAY.

before the receipt was handed over by him. The Commissioner THE QUEEN declined to stop the case, on the authority of Reg. v. Raake (1), Reg. v. Illidge (2), and Reg. v. Pulbrook. (3) The counsel for the prisoner thereupon addressed the jury, contending that there was nothing proved which could justify them in saying that the society had ever treated such documents as anything else than simple receipts for money previously paid. The Commissioner told the jury, that if they were of opinion that the society had recognized such documents as orders, or as authorities, or requests to pay money, they should find the prisoner guilty; and that they might take into their consideration the fact that in this case no order or authority or request from Susey Ambler, or pretending to be signed by her, had been discovered amongst the papers of the society.

The jury returned a verdict of guilty, saying, that by the custom of the society such documents were treated as "authorities to pay," and as "warrants to pay," and as "requests to pay money," but not as "orders." A verdict of guilty was then directed on the counts wherein the document was described as a "warrant," "authority," or "request."

The question was, whether under the circumstances, the document in question could be held to be a "warrant," or an "authority," or a "request to pay money."

April 30. No counsel appeared.

Cur. adv. vult.

June 4. The judgment of the Court (Bovill, C.J., Willes, Byles, and Hannen, JJ., and Cleasby, B.) was delivered by

BOVILL, C.J. We are of opinion that the conviction in this case was right. The jury found that documents such as that in question were, by the custom of the society, treated as "an authority to pay," as a "warrant to pay," and as "a request to pay money." We think there is no objection in law to its being so treated. In Morrison's Case (4), it was held that a pawnbroker's

(1) 2 Mood. C. C. 66.

(2) 1 Den. C. C. 404; 18 L. J. (M.C.) 179.

(3) 9 C. & P. 37.

(4) Bell, C. C. 158; 28 L. J. (M.C.) 210.

1870

บ.

ΚΑΥ.

ticket might be treated as a warrant for the delivery of the goods. In Allen v. The Sea, &c., Assurance Co. (1), it was held that a THE QUEEN credit note, signed by the directors and addressed to the cashier of a company, might be declared upon as a promissory note of the company; and we think that the document in this case might properly be described as a "warrant," an "authority," or "a request," to pay money, and that the conviction must be affirmed.

Conviction affirmed.

THE QUEEN v. KILHAM.

False Pretences-24 & 25 Vict. c. 96, s. 88-Temporary use of Chattel.

S. 88 of 24 & 25 Vict. c. 96, enacts that, "whosoever shall, by any false pretence, obtain from any other person any chattel, money, or valuable security, with intent to defraud, shall be guilty of a misdemeanour ." :

Held, that "obtain" does not mean obtain the loan of, but obtain the property in, any chattel, &c., and that to constitute an obtaining by false pretences, it is essential that there should be an intention to deprive the owner wholly of the property in the chattel, and, consequently, that obtaining by false pretences the use of a chattel for a limited time only, without an intention to deprive the owner wholly of the chattel, is not an obtaining by false pretences within s. 88 of 24 & 25 Vict. e. 96.

CASE stated by the Recorder of York.

Indictment under 24 & 25 Vict. c. 96, s. 88, for obtaining goods by false pretences.

The prisoner was tried at the last Easter quarter sessions for York. The prisoner, on the 19th of March last, called at the livery stables of Messrs. Thackray, who let out horses for hire, and stated that he was sent by a Mr. Gibson Hartley to order a horse to be ready the next morning for the use of a son of Mr. Gibson Hartley, who was a customer of the Messrs. Thackray. Accordingly, the next morning the prisoner called for the horse, which was delivered to him by the ostler. The prisoner was seen, in the course of the same day, driving the horse, which he returned to Messrs. Thackray's stables in the evening. The hire for the horse, amounting to 7s., was never paid by the prisoner.

The prisoner was found guilty.

(1) 9 C. B. 574; 19 L. J. (C.P.) 305.

June 4.

1870

The question was, whether the prisoner could properly be found THE QUEEN guilty of obtaining a chattel by false pretences within the meaning

V.

KILHAM.

of 24 & 25 Vict. c. 96, s. 88. (1)

The case of Reg. v. Boulton (2) was relied on on the part of the prosecution.

The case was argued before Bovill, C.J., Willes, Byles, and Hannen, JJ., and Cleasby, B.

May 7. No counsel appeared for the prisoner.

Simpson, for the prosecution. The question is, whether there can be an obtaining goods by false pretences within s. 88, when the taking of the goods under similar circumstances would not be a larceny. If the prisoner in this case had simply taken the horse away without leave, for the purpose of using it during the day, there would have been no larceny, because there would not be any intention to deprive the owner wholly of the property. The point in this case is, whether the same principle applies to the offence of obtaining goods by false pretences. In Rex v. Crossley (3) it was held that obtaining a loan of money by false pretences was an offence under s. 53 of 7 & 8 Geo. 4, c. 29, and Patteson, J., said, "as to the money being advanced by the prosecutor only as a loan, the terms of the Act of Parliament embrace every mode of obtaining money by false pretences, by loan as well as by transfer." In Reg. v. Boulton (2) it was held that obtaining a railway ticket by false pretences, although with the intention of giving up the ticket at the end of the journey, was an obtaining by false pretences under the same section. The authority of Reg. v. Boulton (2) was recognized in the subsequent case of Reg. v. Morrison. (4) In 1 Russell on Crimes, however, 4th ed., p. 646, n., the very facts of the present case are put as an hypothetical case, and it is said, "it could hardly be contended that" the horse was obtained by false pretences, and the correctness of the decision in Reg. v. Boulton (2) is questioned.

(1) 24 & 25 Vict. c. 96, s. 88, enacts that, "whosoever shall, by any false pretence, obtain from any other person any chattel, money, or valuable security, with intent to defraud, shall be guilty of a misdemeanour."

(2) 1 Den. C. C. 508; 19 L. J. (M.C.) 67.

(3) 2 Moo. & Rob. 17, 19.

(4) Bell, C. C. 158; 28 L. J. (M.C.) 210.

[He also referred to Burn's Justice, vol. iii. p. 198, 30th ed.; 2 East, P. C. 689; 33 Hen. 8, c. 1; 30 Geo. 2, c.

24.]

Cur. adv. vult.

June 4. The judgment of the Court (Bovill, C.J., Willes, Byles, and Hannen, JJ., and Cleasby, B.) was delivered by

BOVILL, C.J. We are of opinion that the conviction in this case cannot be supported. The statute 24 & 25 Vict. c. 96, s. 88, enacts that," whosoever shall, by any false pretence, obtain from any other person any chattel, money, or valuable security, with intent to defraud, shall be guilty of misdemeanour." The word "obtain " in this section does not mean obtain the loan of, but obtain the property in, any chattel, &c. This is, to some extent, indicated by the proviso, that if it be proved that the person indicted obtained the property in such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted; but, it is made more clear by referring to the earlier statute from which the language of s. 88 is adopted. 7 & 8 Geo. 4, c. 29, s. 53, recites that "a failure of justice frequently arises from the subtle distinction between larceny and fraud,'" and, for remedy thereof, enacts that "if any person shall, by any false pretence, obtain," &c. The subtle distinction which the statute was intended to remedy was this: that if a person, by fraud, induced another to part with the possession only of goods and converted them to his own use, this was larceny; while, if he induced another by fraud to part with the property in the goods as well as the possession, this was not larceny. (1)

But to constitute an obtaining by false pretences it is equally essential, as in larceny, that there shall be an intention to deprive the owner wholly of his property, and this intention did not exist in the case before us. In support of the conviction the case of Reg. v. Boulton (2) was referred to. There the prisoner was indicted for obtaining, by false pretences, a railway ticket with intent to defrand the company. It was held that the prisoner was rightly convicted, though the ticket had to be given up at the end of the (2) 1 Den. C. C. 508; 19 L. J. (M.C.)

(1) See the cases on this subject; 2 Russ. ou Crimes, 200, 4th ed., and

note (d) p. 664.

VOL, L.

67.

[blocks in formation]

1870

THE QUEEN

v.

KILHAM.

« ElőzőTovább »