this was not a pretence within the meaning of the Act; it was rather a false excuse for not working, than a false pretence to obtain goods. R. v. Thomas Wakeling, R. & Ry. 504. It is not necessary however that the pretence should be in words; there may be a sufficient false pretence within the meaning of the Act, by the acts and conduct of the party, without any verbal representations of a false or fraudulent nature. Thus, where the prisoner, in payment of some small articles, tendered in payment a forged promissory note for 10s. 6d. and received the change; and being indicted as for obtaining the goods and money under false pretences, (notes under 20s. being declared void by statute, and not the subject of a prosecution for forgery,) it was objected that here there was no representation made by the prisoner, no false suggestion of a fact, the fraud being in the fabrication of the instrument, and not in the representation of the prisoner: but the judge being of opinion that the uttering of the note as a genuine instrument, was tantamount to a representation that it was so, the prisoner was convicted; and a majority of the judges afterwards held the conviction to be right. R. v. Henry Freeth, R. & Ry. 127. So, where a man of the name of Story, presented a Post Office order, payable to one Storer, to the post master for payment, and being desired to write his name upon it, wrote his real name, and was paid: being indicted for obtaining the money under a false pretence, it was objected, that as the prisoner had merely presented the order for payment, without making any untrue declaration or assertion, it was not a case within the meaning of the statute; but the judges held, that by presenting the order for payment, and signing his name at the Post Office, he had represented himself to the post-master as the person named in the order, and that such representation was clearly a pretence within the meaning of the Act. R. v. John Story, R. & Ry. 81. Where the prisoner passed a note of a country bank, which he knew had stopped payment, and was indicted as for obtaining money under false pretences; it appearing that one of the partners was solvent, Gaselee, J. held that the prisoner could not be convicted. R. v. Spencer, 3 Car. & P. 420. Where the prisoner sold to the prosecutor a reversionary interest he had in some money left by his grandfather, and the prosecutor took a regular assignment of it, with the usual covenant for title; and it appeared that he had previously sold the same interest to another : being indicted for this, as for obtaining money by false pretences, Littledale, J. held that he could not be convicted, and that the prosecutor's only remedy was by civil action on the covenant; if this were an offence within the Act, every breach of warranty or false assertion at the time of making a bargain might be treated as such, and the party be transported. R. v. Codrington, 1 Car. & P. 661. Where the prisoner obtained

goods by means of a forged order or request note, Taunton, J. held that he could not be indicted for obtaining them by false pretences, but should have been indicted for the forgery under stat. 11 G. 4, & 1 W. 4, c. 66. R. v. Evans, 5 Cur. & P. 553. See 2 Arch. P. A. 275.

Care must be taken that there be no material variance between the pretence laid and that proved; if there be any doubt upon the subject, it should be stated differently in different counts, to correspond with the proof. Where the false pretence stated was a paper, which according to the indictment purported to be an order for the payment of 100l., and the paper when produced appeared not to be directed to any person: the judges held, that as the paper did not purport to be an order for the payment of money, as stated in the indictment, the prisoner ought not to be convicted. R. v. Cartwright, R. & Ry. 106. But, where the pretence or any part of it is in writing or printed, and there is any variance between the writing and the statement of it in the indictment, if the trial be before a Court of oyer and terminer and gaol delivery, or any judge sitting at nisi prius, such Court or judge may order the indictment to be amended, and the trial may then proceed. 9 G. 4, c. 15, ante, p. 127. It is not necessary, however, that the whole of the pretence charged should be proved; proof of part of the pretence, and that the money, &c. was obtained by such part, is sufficient. R. v. Wm. Humphrey Hill, R. & Ry. 190. If the false pretence be a writing, and be lost before the trial, the prosecutor will be allowed to give secondary evidence of it. R. v. Chadwick, 6 Car. & P. 181.

2. That the prisoner obtained the five sovereigns, by means of the representation so made by him. Vide Wakeling's case, ante, p. 186. Where the prisoner, by lodging with his banker in the country, a bill drawn on a person in London, which he represented as good and would be accepted, but which in fact never was accepted afterwards, was allowed by his banker to draw checks in favour of other persons, but it appeared that he never received any money upon them himself: the judges held that it was not an offence within the meaning of the statute. R. v. Wavell, R. & M. 224. In strictness it should appear that the prosecutor parted not only with the possession of the money or goods. &c., but with the right of property also; for if he parted with the possession only, and not the right of property, the offence, we have seen, (ante, p. 158,) would amount to larceny. But by 7 & 8 G. 4, c. 29, s. 53, it is provided that if upon the trial of any person for this offence, "it shall be proved that he obtained the property in any such manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted." Where the prisoner was indicted for obtaining,

under false pretences, a certain order for the payment of 21., and the order appeared to be a check drawn by the prosecutor, the Earl of Brecknock upon his bankers, payable to D. Francis Jones, without saying or order" or 66 or bearer:" the judges held that this required a stamp under stat. 55 G. 3, c. 184; and as it was not stamped, it was not a valuable security within the meaning of the statute. R. v. Wm. Yates, alias Daniel Frederick Jones, R. & M. 170.

3. That the pretence was false.

11. Indictment against a Receiver of Stolen Goods, as Accessory, together with the Principal.

Draw the indictment against the principal felon, to the words] "against the peace of our Lord the King, his crown and dignity." And the jurors aforesaid upon their oath aforesaid do further present, that E. F., late of the parish aforesaid in the county aforesaid, labourer, on the day and year aforesaid, with force and arms, at the parish aforesaid in the county aforesaid, [six brass candlesticks of the value of six shillings, and four pewter dishes of the value of four shillings, being parcel of] the goods and chattels above mentioned, so as aforesaid feloniously stolen, taken and carried away, feloniously did receive, he the said E. F. then and there well knowing the said goods and chattels [last mentioned] to have been feloniously stolen, taken and carried away, as aforesaid: against the form of the statute in such case made and provided, and against the peace of our Lord the King, his crown and dignity. See 1 Arch. P. A. 434.

Felony, transportation for not more than 14 years, nor less than 7; or imprisonment, with or without hard labour, for not more than 3 years, and (if the Court think fit) whipping. 7 & 8 G. 4, c. 29, s. 54. and see s. 55-57.

Evidence.

To maintain this indictment, the prosecutor must prove : 1. The larceny, as in ordinary cases.

2. That the prisoner received the goods stolen, or some of them. That they were found in his possession, will be sufficient evidence of this fact, if nothing appear from which a presumption would arise that they were stolen by him. Where goods stolen were shortly afterwards found concealed in an old enginehouse, and the place being watched, the prisoners were observed to go there and take them away; the prisoners being indicted as receivers, and there being no evidence of the goods having been stolen by any of the prisoners, Patteson, J., after remarking that this seemed to be evidence more of a stealing than receiving, told

the jury, that if they were of opinion that the prisoners stole the goods, they must be acquitted on the present indictment; and the jury finding that the prisoners stole them, they were acquitted accordingly. R. v. Dursley et al. 6 Car. & P. 399. Where one of two prisoners was indicted for stealing six bank notes of 100%. each, and the other prisoner for receiving them; and it appeared that the one, after stealing them, got them changed for 201. notes, some of which the other received: it was holden that the latter could not be convicted, for he did not receive the notes that were stolen. R. v. James and George Walkley, 4 Car. & P. 132. Upon an indictment against Eliza and Sophia Archer for burglary and larceny, and against John Archer and Mary his wife, and two of their children, for receiving the goods stolen, knowing them to be stolen: John Archer and Mary his wife, being found guilty of receiving, &c., the judges held that, as the charge against the husband and wife was joint, and it had not been left to the jury to say whether she had received the goods in the absence of her husband, the conviction of the wife could not be supported, even although it appeared that she had been more active in the matter than he. R. v. Eliz. Archer et al. Ry. & M. 143.

3. That at the time he received the goods, he knew that they had been stolen.-This is proved, by giving evidence of circumstances, from which the jury may fairly infer the guilty know. ledge. In an indictment against Henry Dunn for stealing, and against Martha Smith for receiving, a variety of articles, the property of Dunn's master; it appeared probable that Dunn stole these several articles at different times, but not impossible that he might not have stolen them all at the same time; it appeared however that Smith received them at several times: at the trial, it was objected for Dunn, that the prosecutor should make his election as to which of the articles stolen he would proceed; and for Smith, that not only the prosecutor should so elect, but that he should not give evidence of her receipt of other articles as evidence of her knowledge that they had been stolen the judge however held, that as it was not impossible that Dunn had stolen all the articles at the same time, he would not put the prosecutor to his election as to him; and as to Smith, that the prosecutor must elect as to the receipt of what articles he would prosecute, but that other instances of her receiving might be given in evidence, to prove her guilty knowledge; and the judges held the decision to be right. R. v. Dunn & Smith, Ry. & M. 146.

12. Indictment against a Receiver of Stolen Goods, as for a substantive Felony.

Same as the form ante, p.156, to the words] in the county aforesaid, one silver tankard of the value of six pounds, of the goods and chattels of C. D., by one E. F. [or "by a certain illdisposed person to the jurors aforesaid unknown] then lately before feloniously stolen, taken and carried away, of the said E. F. [or" the same ill-disposed person"] feloniously did receive, he the said A. B. then and there well knowing the said goods and chattels to have been feloniously stolen, taken and carried away against the form of the statute in such case made and provided, and against the peace of our Lord the King, his crown and dignity. The venue may be laid in the county in which the prisoner received the goods, or in the county in which he at any time had them, or in the county in which the principal might by law be tried. 7 & 8 G. 4, c. 29, s. 56.

Where an indictment, in one count, charged the prisoner with a burglary and larceny of certain goods, and in another count with receiving the goods knowing them to have been stolen, and the prisoner was convicted on the second count: the judges held that the counts might legally be joined, but they agreed that thereafter the clerks of assize should be instructed not to join a count for larceny and a count for receiving, in the same indictment. R. v. Galloway, Ry. & M. 234. And in a subsequent case, R. v. Madden, Ry. & M. 277, the judges held that the above rule laid down in Galloway's case should be adhered to. In a similar case, Vaughan, B. put the prosecutor to his election upon which of the two counts he would prosecute. R. v. Flower, 3 Car. & P. 413. Where the indictment stated the larceny to have been committed by a certain "evil disposed person," without saying to the jurors aforesaid unknown," Tindal, C. J. held it sufficient; the offence was not the receiving of the stolen goods from any particular person, but receiving them knowing them to be stolen. R. v. Jervis, 6 Car. & P. 156.

Felony, same punishment as in the last case, ante, p. 189.

Evidence.

Same as in the last case. Where the principal felon made a confession before the magistrate, in the presence of the prisoner, not only of his own guilt, but also of matters affecting the prisoner as receiver, the judge at the trial received evidence of the confession, as to the principal's guilt, in proof of the larceny, but not what she said with respect to the prisoner: the prisoner being convicted, the judges held the conviction to be wrong, as the confession of the principal was not admissible in evidence against the receiver for any purpose; and many of the judges held, that even if the principal were convicted, and the indict