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that which was accepted by his servant as payment, although the bills turned out afterwards to be of no value. (k)

and suffered

afterwards

the jury to

the prosecu

be a felonious

parted with the property in his money, under an idea

Upon an indictment against three persons, named Nicholson, Nicholson's Jones, and Chappel, for stealing a bank post bill of twenty pounds, case. The another of fifteen pounds, and also seven guineas, the property of prosecutor having been William Cartwright, the following were the material facts given inveigled by in evidence. Nicholson introduced himself to the prosecutor, sharpers to who was a pensioner in the Charter-house, by coming to his bet with them, apartments at that place, and pretending to enquire as to the by them to rules of the charity. He had not before that time any sort of ac- win in the first quaintance with the prosecutor, but he succeeded in getting him instance, was to enter into conversation, and to produce the rules of the charity stripped of a from his desk, which gave Nicholson an opportunity of seeing large sum by that the prosecutor had some money. Nicholson then proposed and the whole losing a bet; to the prosecutor that they should take a walk together, which transaction they did, and went to a public-house, where they were joined by was found by the prisoner Chappel. Some liquor was called for, when the have been a other prisoner, Jones, came into the room, and said that he had preconcerted just come from Coventry, for the purpose of receiving a large le- scheme to get gacy, and produced a quantity of papers, like bank-notes; upon tor's money: which Chappel said to him, "Aye, I see it is good, but I imagine but it was "you think nobody, in company, has got any money but your- holden not to "self;" to which Jones answered, "I will lay ten pounds, that taking, as the "neither of you shew forty pounds in three hours." Immediately prosecutor on this bet being proposed, the parties left the room; and Nicholson and Chappel both asked the prosecutor if he could shew forty pounds, to which he answered, that he believed he could. Nicholson then accompanied the prosecutor to his room, at the Charter-house, where the prosecutor took out of his desk the two post bills in question, and five guineas, and afterwards took out two more guiueas, upon Nicholson advising him to take a guinea or two more: and they then went together to another publichouse, called The Spotted Horse, where Chappel had previously said, on their leaving the first public-house, that he should go; and where they found both Jones and Chappel in a back room. Jones put down a paper, apparently a 107. note, for each who could shew forty pounds, upon which the prosecutor shewed his forty founds, in the post bills and guineas, by laying them down on the table, but did not recollect whether he took up the 107. paper, which was given to him upon his being allowed to have won his wager. The prisoner, Jones, then proceeded to write four letters with chalk on the table; after which he went to the end of the room, turned his back, and said that he would bet them a guinea each that he would name another letter which should be made, and a basin put over it. Another letter was, accordingly, made, and covered with a basin. Jones named a letter, but not the right one; by which the others won a guinea each. Nicholson and Chappel then said, "He is sure to lose; we may as well · "make it more, as we are sure to win: we may as well ease him " of his money; he has more than he knows what to do with."

that it had been fairly

won.

(k) Parkes's case, O. B. 1794. cor. Macdonald, C. B. 2 Leach .614... 2 East. P. C. c. 16. s. 103. p. 671.

Coleman's

case.

The same rule

will prevail though the name of ano

ther person be used to

procure a delivery by the

owner. So that where

silver was so

The prosecutor was so worked up with the hope of gain, that he at length, after various sums being proposed, staked his two postbills and the seven guineas; after which Jones named a letter, and guessed right; and then went to the table, swept off the bills and money, and went to the door of the room; the other prisoners sitting still, and the prosecutor making no objection, conceiving that he had fairly lost the money to Jones. It happened that just at this time some police officers came to the house, who, upon seeing Jones, ran hastily towards the door, seized him, and brought him back into the room; and, upon perceiving, from the chalks upon the table, what had been going on, took the whole party into custody. Upon searching the prisoners, about eight guineas in cash were found upon them, and a great number of flash notes, but no real ones: and it was afterwards found that a lump of paper, which was put into the prosecutor's hands by Jones when the officers came in, contained the two post bills belonging to the prosecutor.

The prosecutor said, upon his cross-examination, that he did not know whether the paper which was given to him by Jones, on his shewing forty pounds, was a real ten pound note or not; that he intended to gamble; that, having won the first wager, he should, if the transaction had ended there, have kept the guinea; that he did not object to Jones taking his forty-two pounds seven shillings which he lost; and that, if Jones had guessed wrong the second time, he expected to receive from him forty-two pounds seven shillings, the amount of the stake. Upon this evidence it was contended, on behalf of the prisoners, that this was a mere gaming transaction, or, at most, only a cheat, and not a felony: and the court left it to the jury to consider, whether this were a gaming transaction, or whether it were a pre-concerted scheme by the prisoners, or any of them, to get from the prosecutor the post bills and cash. The jury were of opinion, that it was a preconcerted scheme in all the prisoners to get from the prosecutor his post bills and cash; and they found them guilty. But, upon the case being submitted to the consideration of the twelve Judges, they all of them held the conviction wrong; on the ground that in this case the property in the post bills and cash was parted with by the prosecutor, under the idea that it had been fairly won. (1)

It appears from another case not to make any difference, where the credit may have been obtained by fraudulently using the name of another person, to whom in fact the credit was intended to be given, if the delivery of the goods were made by the owner or any other having the disposing power for that purpose. Thus, where the prisoner went to a tradesman's house, and said she came from a Mrs. Cook, a neighbour, who would be much obliged if he would let her have half a guinea's worth of silver, and that she would send the half guinea presently, and thereby obtained the silver, it was holden not to be a felony. (m) And it has been observed

(1) Rex v. Nicholson, Jones, and Chappel, cor. Macdonald, C. B., Old Bailey, 1794, 2 Leach 610. 2 East. P. C. c. 16. s. 103. p. 669. The result would have been different if the pos

session only had been parted with, Robson's case, post. 123.

(m) Rex v. Coleman, O. B. 1785, 2 East. P. C. c. 16. s. 104. p. 672. 1 Leach 303, note (a).

not to be felony.

was holden

with respect to this case, that in truth it was a loan of the silver, obtained, it upon the faith that the amount would be repaid at another time; that it was money obtained on a false pretence; and that the same determination had been made in similar cases at the Old Bailey. (n)

Where a hat was obtained.

under false pretences, by

which the owner was in

duced to part with the pro

perty.

The prisoner, Phineas Adams, was indicted for stealing a hat, Adams's case. which was stated in one count to be the property of Robert Beer, and in another of John Paul. The substance of the evidence was, that the prisoner bought a hat of Robert Beer, a hat-maker, at Ilminster; that soon afterwards he called for it, when he was told it would be got ready for him in half an hour, but that he could not have it without paying for it. While he was in the shop, Beer shewed him a hat which he had made for one John Paul, upon which the prisoner said, that he lived next door to him; and he then asked when Paul was to come for his hat, and was told he was to come that afternoon in half an hour or an hour. The prisoner then went away, saying, he would send his brother's wife for his own hat. Soon after he went away, he met a boy, whom (though he did not know him) he asked if he was going to Ilminster; and, upon the boy saying that he was going thither, he asked him if he knew Robert Beer, and said that John Paul had sent him to Beer's for his hat, but that as he owed Beer for a hat himself, which he had not money to pay for, he did not like to go. And he then asked the boy (to whom he had promised something for his trouble) to take the message from Paul, and bring Paul's hat to him (the prisoner). He further told the boy not to go into Beer's shop, in case Paul (whom he described by his person and a peculiarity of dress) should happen to be there. The prisoner then accompanied the boy part of the way, after which the boy proceeded alone to Beer's, delivered his message, and received the hat; which, after carrying it part of the way for the prisoner, by his desire, the prisoner received from him, and said he would take it himself to Paul. Upon the fraud being discovered shortly afterwards, the prisoner was apprehended with the hat in his possession. It was objected, on the part of the prisoner, that these facts did not establish a case of larceny: and that the indictment should have been upon the statute for obtaining goods by false pretences. And the jury having found the prisoner guilty, the question was reserved for the opinion of the Judges, who decided that the offence did not amount to a felony; the owner having parted with his property in the hat. (0)

In a case of recent occurrence, by which a great deal of interest was excited, the prisoner was charged in the first count of the indictment with stealing twenty-two bank-notes, of the value of a thousand pounds each, and one bank-note of the value of two hundred pounds, the property of Sir Thomas Plumer; and, in several additional counts, with stealing a written instrument, which, in some of them, was called "a bill of exchange" for the payment

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Walsh's case. Held under the particular that as there was no fraud

circumstances

used to induce

the

to deliver check, there

was no larceny of the check, although the prisoner in

tended to misapply the pro

ceeds before he received the check, and did misapply them accordingly.

And as to a charge of stealing the notes which

were the pro

ceeds of the check, held

under the par

ticular cir

cumstances that the property in the notes never was vested in the prosecutor.

of 22,2007., and in others, "a warrant for payment of money." The following facts were proved in support of the charge. The prosecutor, Sir Thomas Plumer, having contracted, in July, 1811, for the purchase of a large estate, shortly afterwards consulted the prisoner, who was a stock-broker of eminence, and who had long been employed in that capacity by the prosecutor, as to the most advantageous time to sell out stock, so as to be prepared with the purchase-money about the ensuing Michaelmas. The price of stock was then very low, and the prisoner advised that the sale might be delayed as long as possible, which recommendation was adopted by the prosecutor, who requested the prisoner to apprize him from time to time of the variations that might occur in the state of the market. The prosecutor was not called upon to prepare the purchase-money by the time which was first mentioned, as the title to the estate was not then completed; but in the month of October, having reason to believe that the deeds would be ready on or before the ensuing Christmas-day, he communicated that circumstance to the prisoner, and consulted him as to the expediency of disposing of the stock immediately, or letting it remain until the money should be wanted; when the prisoner again advised him to delay the sale. On the 25th of November, the prisoner stated to the prosecutor that he then apprehended a fall in the price of stock, and apprized him that the transfer-books at the Bank would shut on the 3d December; and soon afterwards he became extremely urgent with the prosecutor to dispose of his stock immediately, writing to him, and frequently calling upon him for the purpose of giving such advice, and stating, as the reason for his importunity, a probable fall in the price of stock. The prosecutor was influenced by these representations, and also by the concurrent opinion of a commercial gentleman whom he consulted on the subject; and, on Thursday, the 28th November, gave the prisoner a power to sell out a quantity of stock, which, on the ensuing morning, he contracted to sell for the sum of 21,7001. The prosecutor went on the next morning into the city, with the intention of finishing the business; but the prisoner stated that some previous notice must be given to the purchaser to be ready with the money, in consequence of which the prosecutor appointed Wednesday, the 4th December, for making the transfer. On that day the prosecutor attended and transferred the stock, and expressly ordered the prisoner immediately to invest the proceeds in Exchequer bills, and lodge them on his account at his bankers, Messrs. Goslings and Co. in Fleet-street; but the prisoner told him that it was then too late to procure Exchequer bills to such an amount; which the prosecutor supposed to be true (though in fact it was not), and therefore left him to receive the 21,7001. of the purchaser, desiring that he would pay it into his banker's the same day, which he promised to do, saying at the same time, that he would call on the prosecutor the next morning, and get his check for such sum as he might choose to have laid out in Exchequer bills. The prisoner accordingly received the 21,700., paid it into his own bankers, Robarts and Co.'s; and on the same day paid into Gosling and Co.'s his own check on Robarts and Co. for 21,500l. on the prosecutor's account. On the

following morning, Thursday, the 5th December, he called on the prosecutor, and received from him a check, (the instrument mentioned in the indictment) on Gosling and Co.'s, for 22,2001. The prosecutor directed him to go to Gosling's and get the money for it, telling him that it was for the precise and express purpose, and for no other purpose whatever, of laying it out in Exchequer bills; which the prisoner positively promised he would do, and either pay the bills into Gosling and Co.'s, or bring them to the prosecutor by four o'clock on the same day. Nothing was said as to what was to be done with the money in case Exchequer bills could not be purchased. The prisoner then went to Gosling and Co.'s with the check, and there received for it 22,2007. in twentytwo bank-notes of 1,000l. each, and one bank-note of 2007.; and on the same day he purchased with part of that money 6,500. Exchequer bills, which he lodged at Gosling and Co.'s on the prosecutor's account, and took a receipt for them. At about halfpast four o'clock on the same day, the prisoner called on the prosecutor, and produced the receipt for the Exchequer bills, and stated that he had paid the remainder of the money into Gosling and Co.'s, as he had contracted with Coutts and Co. for Exchequer bills to the amount of 15,000l., but that one of the partners of the house of Coutts and Co. was at that time absent from London, had the bills locked up in a drawer, and would not return to deliver them until the following Saturday, the 7th December, on which day the prisoner said, he would call again for the prosecutor's check for that amount, and lodge the Exchequer bills for which he had so contracted at Gosling and Co.'s on the prosecutor's account. The prosecutor did not examine the papers delivered to him by the prisoner, during the time the prisoner was with him; but, upon looking at them after he was gone away, he was surprised to find that there was only a receipt for the Exchequer bills, and no receipt for the residue of the money. This circumstance caused suspicion, and an enquiry was almost immediately made, when it was ascertained that the prisoner had, on the afternoon of that same day, set out for Falmouth in the mail coach, in which he had previously secured a place in a fictitious name; and that he had left a note, addressed to the prosecutor, with his clerk, dated on Saturday, the 7th December, and stating that the business respecting Coutts' Exchequer bills could not be finished until the following Monday. This note he had desired might not be delivered till the Saturday. It appeared also that, for some time before he absconded, the prisoner had been labouring under great pecuniary embarrassments, and had meditated an emigration to America; and that about the 29th of November he had applied to an American broker to procure for him American stock to the amount of 11,000l., and stock nearly to that amount was accordingly bought for him, and paid for by him, on the Thursday, the 5th of December, with eleven of the same banknotes of 1,000l. each, which he had received for the prosecutor's check: and it further appeared, that several others of the 1,000%. notes so received for the prosecutor's check, had been paid away by him to different persons on his own account. It was proved also, that on the same day, Thursday, the 5th December, he paid

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