whether an urinal can be a public place in which an indecent act of this kind can be committed; and we think it is just the class of place to which the law on this subject applies.

The rest of the Court concurred.

Conviction affirmed. Attorneys for the prosecution, C. and J. Allen and Sons.

Attorneys for the prisoner, E. Lewis and Co.

Saturday, Jan. 28, 1871.

(Before BOVILL, C. J., CHANNELL, B., WILLES, J., PIGOTT, B., and HANNEN, J.) REG. v. COOKE.

Larceny-False pretences-Master and servant. The prisoner, a foreman, by fraudulently misrepresenting that 211. 18s. was due for wages to the men under him, obtained that sum from his master's cashier. On the pay sheet made out by the prisoner 11. 108. 4d. was put down as due to W., whereas only 11. 8s. was due, and that amount only was paid to W. out of the 211. 188.; the excess, 28. 4d., was appropriated out of the 211. 188. to the prisoner's own use, he intending so to appropriate it at the time he received 21l. 188. :

Held, that the prisoner was guilty of larceny of the 28. 4d.

CASE reserved for the opinion of the Court by the Chairman of the Worcestershire Quarter Sessions.

At the Worcestershire Quarter Sessions, held on the 2nd Jan. 1871, the above-named prisoner, Edwin Cooke, was tried before me for stealing certain moneys belonging to his master, one George Hands.

The said George Hands was a currier, at Kidderminster, and in the habit of employing several workmen in his said business.

The prisoner was in and before the month of November last, and continued until the early part of the following month, to be a servant of the said George Hands, being employed at a weekly salary, as confidential foreman over the workman.

It was part of the duty of the prisoner to engage and dismiss the workmen, as occasion required; and he generally, but not invariably, consulted his master as to such engagement and dismissal, and as to the amount of wages at which such workmen were to be engaged.

The workmen were engaged at so much a week for ordinary time, and they were to be paid after the same proportionate rate for any overtime.

A wages book was kept at the master's countinghouse, and was given out to the prisoner on the morning of every Saturday (which was the pay day for the workmen), in order that he might enter on a pay-sheet in the said book the names of the several workmen who had been employed during the week, and to set opposite to each person's name the amount due to him for wages. When this was done, the prisoner, according to the usual practice, brought back the book to the counting-house and gave it to the master's cashier, who generally showed it to the master. The several sums entered in the pay-sheet were then added up and the total amount paid by the cashier to the prisoner, whose duty it would be to pay thereout to the several workmen their respective wages.

Among the workmen so employed under the prisoner in the month of November last was a

[C. CAS. R.

man named Williams, who had been engaged by the prisoner at 24s. a week for ordinary time (overtime, if any, to be paid for in addition at the same proportionate rate). During the week ending the 12th Nov. last, Williams had worked overtime, and the wages due to him for that week, calculated at the rate of 24s. a week, amounted to the sum of 11. 88. and no more. The prisoner, however, had before this time fraudulently represented to his master that Williams had been engaged at the rate of 26s. a week, and in the aforesaid pay-sheet for the week ending the 12th Nov. last he fraudulently set opposite the name of Williams, instead of the said sum of 11. 88. the correct amount due to him, the sum of 11. 10s. 4d., being in fact the amount that Williams would have been entitled to if he had been engaged at the rate of 26s. instead of 24s. a week.

The total amount of the wages in the said paysheet for that week, including the said sum of 17. 108. 4d., so represented to be due to Williams was the sum of 211. 188., and the said cashier, in ignorance of the fraud practised by the prisoner, and believing that the said pay-sheet was correct, on the same 12th Nov. paid to the prisoner out of his master's moneys the said sum of 211. 188., in order that he might by means thereof pay the several workmen mentioned in the pay-sheet the wages due to them respectively, and the prisoner was not authorised, either by his master or by the cashier, to apply any part of such moneys for any other purpose.

After obtaining the said sum of 211. 18s. from the cashier in manner aforesaid, and on the same day, the prisoner paid thereout to Williams the sum of 11. 88., being the correct amount of the wages due to him, and fraudulently appropriated thereout to his own use the sum of 28. 4d., being the excess of the sum represented in the said pay-sheet to be due to Williams, over the sum actually due, and the prisoner intended, at the time when he obtained the said money from the cashier, to appropriate the said excess to his own use, and to defraud his master of the same.

The appropriation of this excess of 28. 4d. was the subject of the first count of the indictment, on which the prisoner was tried. There were two other counts charging the prisoner with stealing moneys belonging to his master, but the facts, except as to the names, dates, and amounts, being exactly similar to those proved under the first count, are not necessary to be stated for the purposes of this case.

It was objected by the counsel for the prisoner that, even if the above facts were proved, the offence of the prisoner was not a felony, but that of obtaining money by false pretences.

I declined to withdraw the case from the jury on that objection; but a verdict of guilty having been returned, I reserved the point for the consideration of this Court, and judgment was in the meantime postponed, and the prisoner, not having, as I believe, been able to obtain the required bail, is now detained in the Worcester prison.

The question on which I respectfully desire the opinion of the Court is, whether the prisoner, on the foregoing state of facts, was properly found guilty of felony.

(Signed) R. PAUL AMPHLETT, Chairman of the above Court of Quarter Sessions. F. T. Streeten (Jelf with him) for the prisoner.The conviction for larceny was wrong; for the

offence (if any) committed by the prisoner amounts only to obtaining money by false pretences. The cashier had authority from his master to pay the 211. 188. to the prisoner, and he did so intending to part with the money absolutely to the prisoner. The property being parted with by the cashier, the offence was not larceny. In White v. Garden (10 C. B. 927), Talford, J., said: "There is a very obvious distinction between the cases of goods obtained by felony and fraud, or false pretences. In the one case the owner of the goods has no intention to part with the property; in the other he has." Lord Wensleydale expressed the same view in Powell v. Hoyland (6 Ex. 70). The same distinction between larceny and false pretences is laid down in

2 Russell on Crimes, 200, 4th edit.;

Arch. Crim. Plead. 312, 16th edit.; and

2 East P. C. 816,

and the distinction is a substantial and material one, and was upheld in Reg v. Prince (38 L. J. 8 M. C.; 11 Cox C. C 193). [BoVILL, C. J,-Assume that it was not larceny when he obtained the gross sum from the cashier, but when he had paid away all that he ought to have paid away there remained a balance in his hands, whose money was that? Was it not his master's, and if so, does not the case fall within the late Act as one of a fraudulent conversion of the balance to the prisoner's own use, which offence the Act defines to be larceny ?] This was not a bailment of the money to the prisoner; there was no specific coin of which the prisoner was a bailee, and bound to restore. The test is, whether at the time the cashier parted with the money to the prisoner, he intended to part with the ownership in it, and it is submitted upon the facts stated that he did. The offence was complete at the time the prisoner obtained the money by the false pretences. In Reg v. Thompson (32 Ľ. J. 57, M. Ĉ.; L. & C. 233; 9 Cox C. C. 222), a merchant's clerk having fraudulently represented to the cashier that a larger sum than 11. 3s. was due for dock dues, and obtained it, and appropriated the difference to his own use, was held not to have been guilty of larceny. There Williams, and Wightman, JJ., both pointed out the difficulty there was as to any particular coin having been stolen by the prisoner, as the money was paid over to the prisoner in a lump, and he was justly entitled to a part of what was so paid to him. And Pollock, C. B., said, “No doubt the prisoner obtained the money by false pretences, but it was not larceny." That case proceeded on the same principle decided in Reg v. Leonard (1 Den. C. C. 304; 3 Cox C. C. 284), where the prisoner was a foreman, and the money was obtained by cheque. The following cases were then cited to show that this was not a case of fraud by a bailee :

Reg. v. Prince (supra)

Reg. v. Hassell, 30 L. J. 175, M. C.; Reg. v. George Thompson, 9 Cox C. C. 222. Here the money was parted with in the first instance, once for all, and to put it as money stolen after the correct amount for wages was paid is not consistent with the facts. [BOVILL, C.J. referred to Reg. v. Goode (Car. & M. 582), where the master gave the prisoner 31. to pay canal dues, and he paid a part only, and appropriated the rest to his own use, and the prisoner was convicted of larceny.] That case is commented on in a note in Reg. v. Thompson (L. & C. 233), where, after reviewing all the cases, it is said, "The true dis

C. CAS. R.

tinction to be drawn from these cases appears to be, that if the master delivers money to the servant for a speci ed purpose, with the understanding that the identical coins delivered are to be applied to that purpose, and the servant converts them to his own use with a felonious intent, he is guilty of felony; but if the master delivers to the servant a gross sum of money, to make certain payments out of that sum, not intending that the identical coins delivered shall be applied to any particular payment, but leaves the servant at liberty to make any use he pleases of the specific coin delivered, provided he applies a similar amount of money to the purposes indicated, the master must be taken to have parted with the money, and the servant cannot be convicted of larceny if he convert the money to his own use, although, if he had obtained it by means of a false pretence, he may be convicted of the latter offence." This view of the law is consistent with that adopted in the case of larceny by bailees, with regard to whom it has been held that they cannot be convicted of larceny for converting to their own use money deposited with them in cases where they are only under an obligation to return the amount, and not the identical coin deposited."-[WILLES, J. That note is very good law with one qualification, that where, as was said by Lord Wensleydale, money is handed to a servant, the servant must prima facie be taken to hold it as the master's, and for the purpose intended by the master. BOVILL, C. J., referred to Reg. v. Watts, 2 Den. C. C. 14.] If this is larceny it is difficult to see when the offence was complete. Reg. v. Barnes (2 Den. C. C. 59; 5 Cox C. C. 112) was also cited.

J. O. Griffits (Montagu Williams with him), for the prosecution, was stopped by the court.

BOVILL, C.J.-The real point submitted to us in this case is whether there was any evidence to go to the jury of a larceny having been committed. The objection raised by the prisoner's counsel was that, even if the facts stated in the case were proved, the offence of the prisoner was not a felony, but that of obtaining money by false pretences. The point is substantially whether on the facts stated there was any evidence of a larceny that ought to have been submitted to the jury, or whether the case ought to have been withdrawn from them. The facts are that the cashier of the prosecutor, in ignorance of the fraud practised upon him by the prisoner, paid to the prisoner 211. 188. of the moneys of his master, in order that he might by means thereof pay the several workmen mentioned in the pay-sheet the wages due to them respectively, and the prisoner was not authorised either by his master or by the cashier to apply any part of such moneys for any other purpose. After obtaining the said sum of 21l. 188., and on the same day, the prisoner paid thereout to Williams the sum of 17. 88., being the correct amount of the wages due to him, and fraudulently appropriated thereout to his own use the sum of 28. 4d., being the excess of the sum represented in the pay sheet to be due to Williams over the sum actually due, and the prisoner intended at the time when he obtained the money from the cashier to appropriate the said excess to his own use and to defraud his master of the same. The whole foundation, therefore, of the argument of the prisoner's counsel fails, viz., that the jury could not find the identical money misappropriated, because the case states the receipt of the particular sum of the master's money,

and that the prisoner paid thereout 11. 88. to Williams, and fraudulently appropriated thereout to his own use 2s. 4d., being the excess of the sum represented in the pay-sheet. On that footing this case steers clear of the difficulty which has arisen in many of the cases, for upon this evidence there was a misappropriation of the very moneys he received from his master. It is now contended that the money was obtained by false pretences in the first instance, but that was a question for the jury. Independently of that, a second point was taken as to the condition of the money at the time of the misappropriation. Was it the property of the master? The money handed over to the prisoner through the hands of the cashier remained the property of the master, and though in the actual possession of a servant, was in the constructive possession of the master. Under these circumstances a servant stands in a different position to a bailee at common law. A bailee is possessed of certain rights over property entrusted to him, but a servant's possession is the constructive possession of his master, and at common law he is guilty of larceny if he fraudulently appropriates his master's property to his own use. In some cases, where a servant received money from third persons on account of his master, it was formerly said there was no constructive possession in the master, and the statutes relating to embezzlement were passed to meet those cases Reg. v. Watts (2 D. & P. 14) was an instance of that. There the prisoner, being a servant, and the money received being his masters', and constructively in their possession at the time the prisoner appropriated it, the prisoner was guilty of larceny. In this case the money remained in the possession of the prisoner, and then whose money was it? Why, the master's. At the time when the prisoner took possession of the 2s. 4d. and appropriated that money, whose money was it? I answer, the master's; and therefore it seems to me that the prisoner was guilty of larceny, and that there was abundant evidence in support of this. As to the case of Reg. v. Thompson, that proceeded altogether on the ground whether there was larceny in the first instance, but that does not touch the second point here. No point was made there as to the effect of the Bailee Act, or that the possession of the prisoner was that of a servant. The moment it is established that it is a misappropriation of money entrusted to a servant, the case falls within Reg. v. Goode and similar cases. The case of Reg. v. Prince was not a case of master and servant, and is therefore distinguishable. I therefore think the conviction was right.

WILLES, J.—I merely wish to refer, in confirmation of the Lord Chief Justice's judgment, to a passage very much in point in Russell on Crimes, p. 388, where the case of Reg. v. Murray is stated thus: "So, if money has been in the possession of the master by the hands of one of his clerks, and another of his clerks receives it from such clerk and embezzles it, it is larceny. The prisoner was a clerk in the employ of A., and received 31. of A.'s money from another clerk, that he might pay for inserting an advertisement. He paid 10s., and charged A. 20s., fraudulently keeping back the difference. And upon a case reserved it was held that this was not embezzlement, because H. had had possession of the money by the hands of the other clerk, and Mr. Greaves, in a note, adds, "ergo, it was larceny."

The other judges concurred.

[C. CAS. R.

Conviction affirmed.

Attorney for the prosecution, Miller Corbet, Kidderminster.

Attorney for the defence, H. Saunders, junr., Kidderminster.

REG. v. RUGG.

Neglect to provide child with proper food-Ability of parent to provide-Evidence-İndictment.

An indictment alleged in the first count that the prisoner unlawfully and wilfully neglected and refused to provide sufficient food for her infant child, she being able and having the means to do 80. The second count charged that the prisoner unlawfully and wilfully neglected and refused to provide her infant child with necessary food, but there was no allegation that she had the ability or means to do so.

The jury returned a verdict of guilty on the ground that if the prisoner had applied (to the guardians) for relief she would have had it:

Held, that neither count was proved, as it was not enough that the prisoner could have obtained the food on application to the guardians.

Quere, whether the second count is good in law.
CASE reserved for the opinion of this court by the
Recorder of the borough of Plymouth.

At the General Quarter Sessions of the Peace for the Borough of Plymouth, held on Friday, 30th Dec. 1870, a bill of indictment was preferred against Florence Rugg in the following form:

Borough of Plymouth.-The jurors for our Lady the Queen upon their oath present, that Florence Rugg, single woman, of the borough of Plymouth aforesaid, on the 20th Nov. 1870, was the mother of one Mary Jane Rugg, an infant of tender years, to wit, of the age of five years; and that the said Mary Jane Rugg was then and there under the care, dominion, and control of the said Florence Rugg, and wholly unable to provide for herself; and that on the day and year aforesaid, and on divers other days and times, as well before as after that day, it was the duty of the said Florence Rugg to protect shelter and nourish the said Mary Jane Rugg, she, the said Florence Rugg, being able and having the means to perform and fulfil her said duty; and the jurors aforesaid, upon their oath aforesaid, further present that the said Florence Rugg, well knowing the premises and not regarding her duty in that behalf, on the said 20th Nov. 1870, and on divers other days and times, as well before as after that day, in the borough aforesaid, did unlawfully and wilfully neglect and refuse to find the said Mary Jane Rugg with sufficient meat, drink, wearing apparel, bedding, and other necessaries proper and requisite for the sustenance, support, clothing, covering, and resting the body of the said Mary Jane Rugg, by means whereof the said Mary Jane Rugg became weak, sick, and ill, and greatly emaciated in her body, against the peace of our said Lady the Queen, her crown and dignity.

Second count:

And the jurors aforesaid upon their oath present, that the said Florence Rugg on the 20th Nov. 1870, and on divers other days and times, as well before as after that day, in the borough aforesaid, being the mother of one Mary Jane Rugg, an infant of tender years, to wit, of the age of five years, under the care, dominion, and control of the said Florence Rugg, and wholly unable to provide for herself, unlawfully and wilfully did neglect and refuse to find and provide for the said Mary Jane Rugg sufficient meat, drink, wearing apparel, bedding, and other necessaries proper and requisite for the sustenance, support, clothing, covering and resting the body of the said Mary Jane Rugg, by means whereof the said Mary Jane Rugg became weak, sick, and ill, and greatly emaciated in her body, against the peace of our said Lady the Queen, her crown and dignity.

And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Florence Rugg, on the 20th Nov. 1870, in and upon one Mary Jane Rugg, did make an assault, and her the said Mary Jane Rugg did then beat, wound, and illtreat, and other wrongs to the said Mary Jane Rugg, then did to the great damage of the said Mary Jane Rugg, against the peace of our said Lady the Queen, her crown and dignity.

The grand jury, on delivering the bill to the clerk of the peace, declared that they returned a true bill, but their indorsement on the bill was in the following words:

We find a true bill against Florence Rugg, for not providing food for her child. JOHN PLIMSAUL, Foreman. Inadvertently the special indorsement had not been called to the attention of the court till after the grand jury had been discharged and had dispersed and left the court.

The defendant was arraigned on the whole indictment and pleaded not guilty, and was tried and found guilty on the first two counts, but the jury added in giving their verdict,

We do so on the ground that if she had applied (to the guardians) for relief she would have had it.

There was no evidence of an assault.

Clarke prosecuted for the guardians of the poor. The prisoner was undefended.

Judgment was postponed, and the following questions reserved for the consideration and decision of this court, viz. :-First, whether the presentment of the grand jury was sufficient? (R. v. Cooke, 8 C. & P. 582.) Secondly, if it were, whether upon the verdict given on the ground alleged by the jury the Recorder ought not to have directed an acquittal? (R. v. Chandler, 1 Dears. C. C. R. 453.) No counsel appeared on either side.

BOVILL, C. J.-In this case the prisoner was indicted for not providing food for her infant child. In the first count it is alleged that the prisoner unlawfully and wilfully neglected and refused to find the infant with sufficient food, &c., she, the prisoner, being able, and having the means to perform and fulfil her said duty, to protect, shelter, and nourish the infant. The second count states that the prisoner unlawfully and wilfully neglected and refused to provide for her infant sufficient meat, &c., but did not contain any allegation of ability on the part of the prisoner to provide sufficient meat, &c. The grand jury returned a true bill against the prisoner "for not providing food for her child." Assuming that they intended to negative the charge of assault in the third count, the grand jury may be taken to have found a true bill on the first two counts. We have to consider the effect of the verdict of the petit jury on the first two counts. They found a verdict of guilty, but added, we do so on the ground that if she had applied" (to the guardians) "for relief, she would have had it." The case of Reg. v. Chandler shows that that finding was not sufficient to maintain the first count of the indictment, which contains the allegation of ability and means on the part of the prisoner. On the second count of the indictment, assuming that count to be good, which we doubt, the allegation is, that the prisoner unlawfully and wilfully did neglect and refuse to find and provide her child with necessary food, &c., but there is no allegation that the prisoner had the means of procuring, or could have procured it, and wilfully abstained from doing so.

66

[C. CAS. R.

That allegation in that count is not found by the jury. On these grounds we are of opinion that the conviction should be quashed. The rest of the Court concurring, Conviction quashed.

Held, that the above assertion was sufficient evidence of the false representation of a definite matter of fact to support a conviction for false pretences. CASE reserved for the opinion of this court by the chairman of the court of quarter sessions for the county palatine of Durham.

John Ardley was tried before me at the winter sessions held for the county of Durham on the 2nd Jan. 1871, for obtaining 51. and an Albert chain of the value of 7s. 6d. by false pretences. The first count of the indictment was in these words:

The jurors for our Lady the Queen upon their oath present that John Ardley on the 31st day of October, A.D. 1870, unlawfully, knowingly, and designedly did falsely pretend to one Thomas Wakefield that a certain Albert chain which he the said John Ardley then asked the said Thomas Wakefield to buy from him the said John Ardley, was of 15-carat gold, and that he the said John Ardley was then a draper and that the said chain had been made expressly for him the said John Ardley, by means of which said false pretences the said John Ardley did then unlawfully obtain from the said Thomas Wakefield a certain sum of money, to wit, 5l., and a certain other Albert chain of the value of 7s. 6d., with intent to defraud, whereas in truth and in fact the said Albert chain which he the said John Ardley then asked the said Thomas Wakefield to buy from him the said John Ardley as aforesaid was not of 15-carat gold. And whereas in truth and in fact he the said John Ardley was not then a draper; and whereas in truth and in fact the said chain had not been made expressly for him the said John Ardley as he the said John Ardley well knew at the time when he did so falsely pretend as aforesaid, against the form of the statute in such case made and provided, and against the peace of our lady the Queen, her crown and dignity.

The material facts were as follows.

The prisoner went into the shop of the prosecutor, who was a watchmaker and jeweller, and stated that he was a draper, and was 51. short of the money required to make up a bill, and asked the prosecutor to buy an Albert chain, which he (the prisoner) was then wearing. The prisoner said, "It is 15-carat fine gold, and you will see it stamped on every link. It was made for me, and I paid nine guineas for it. The maker told me it was worth 51. to sell as old gold."

The prosecutor bought the chain, relying, as he said, on prisoner's statement, but also examining the chain, and paid 51. for it, and gave also to the prisoner, in part payment, a gold Albert chain, valued at 78. 6d.

The prisoner's chain was marked "15-carat" on every link. And in a very short time afterwards he (the prisoner) was apprehended, and then wore another Albert chain, of a character similar to that sold to the prosecutor, this also being marked 15 carat" on every link.

It was proved that "15-carat" was a Hall mark used in certain towns of England, and placed on certain articles made of gold of that quality, and that chains, when assayed, are generally found to be 1 grain less than the mark, exceptionally 2 grains.

The chain bought by the prosecutor was assayed, and found to be of a quality a trifle better than 6 carat gold, and of the value in gold of 21. 2s. 9d. It was proved that had it been 15 carat gold, it would have been worth 5l. 10s. Adding the charge for what is called "fashion" or make," and the price of a locket attached, the chain bought by the prosecutor would be sold for 31. 0s. 3d., but had it been 15 carat, it would have been sold for 91.

There were no drapery goods or anything connected with such trade found on the prisoner; but when arrested he had in his possession a licence to sell plate, two watches, two white metal watch guards, and the chain obtained from the prosecutor.

I was asked by counsel for the prisoner to stop the case on the authority of Reg. v. Bryant, (D. & B. 265). This I declined to do, and left the case to the jury, who found the prisoner guilty, and, in answer to me, said they found that the prisoner knew he was falsely representing the quality of the chain as 15 carat gold.

The question for the opinion of this honourable court is whether or not the prisoner was rightly convicted of obtaining money under false pretences. JOHN R. DAVISON.

Jan. 21, 1871.

No counsel was instructed for the prisoner. Edge for the prosecution.-The conviction was right. The case is within the principle of Reg. v. Dundas, 6 Cox C. C. 380, where the prisoner was convicted of falsely pretending that blacking labelled "Everett's Premier" sold by him to the prosecutor was "Everett's Premier" blacking. Erle, J. there told the jury, "That it was of little consequence whether the prisoner's name was Everitt, as he had stated, or not, for even if it were, and he went about the country and offered blacking for sale as Everett's Premier, representing it to be the well-known article of that name, knowing that it was not so, and intending to cheat the prosecutor by passing upon him a spurious article as the true one, his conduct was equally fraudulent." So here 15-carat gold was marked on each link, and the prisoner pretended not merely to sell a gold chain, but one of 15-carat gold. In Reg. v. Goss and Reg. v. Ragg (29 L. J. 86, M.C.), it was held that a false representation of an alleged matter of definite fact, knowingly made, whether in the course of a bargain or not, is a false pretence within the statute. In Reg v. Ragg the prisoner obtained money by falsely representing that he had delivered 15cwt. of coal when he knew that he had only delivered 8cwt. That is very like this case, for the representation was that the chain was 15-carat gold when it was only a little more than 6-carat gold. Reg. v. Bryant was decided on the ground that the false statement was not of a definite triable fact but matter of opinion, and the judges said that if the prisoner in that case had represented the spoons as Elkington's A, it would have been a different thing, but his statement was only that they were equal to Elkington's A. In Reg. v. Jessup (D. & B. 443; 7 Cox C. Č. 399), a person who fraudulently offered a one pound note as a note for 51., and got it changed upon that representation, was convicted for obtaining

[C. CAS. R.

money by false pretences, although the person to whom it was passed could read, and the note upon the face of it afforded the means of detecting the fraud. The following authorities were also cited: Reg. v. Roebuck, D. & B. 24; 7 Cox C. C. 126; Reg. v. Stevens, 1 Cox. C. C. 83;

Reg. v. Woolley, 1 Den. C. C. 563; 4 Cox C. C. 191. Greenhow (amicus curice), having been counsel for the prisoner at the trial, referred to

Reg. v. Ridgway, 3 F. & F.

BOVILL, C.J.-At the conclusion of the case the learned chairman was asked to stop the case, on the authority of Reg. v. Bryant. The question for the court at that stage was, whether there was any evidence in support of the charge to go to the jury? The court declined to stop the case, on the ground that there was. The evidence was left to

the jury, and the prisoner was found guilty. It seems to me that it was quite impossible to stop the case on the evidence as it stood, because there was a distinct statement of a fact, and evidence that it was false. The prisoner not only made a representation with respect to the quality, but he made the statement in order to induce the prosecutor to purchase the chain. He went into the prosecutor's shop and stated that he was a draper, and was 51. short of the money required to make up a bill, and asked the prosecutor to buy a chain. He said it was 15-carat fine gold, and you will see it stamped on every link;" that it was made for him, and that he paid nine guineas for it, and that the maker had told him it was worth five guineas to sell as old gold. All these are statements in addition to that with respect to the quality. And there was clear evidence to negative them, and they were made for the purpose of inducing the prosecutor to purchase the chain, and so of defrauding him. The case seems to come distinctly within the statute if the jury are satisfied that the statements are false and fraudulent. But the case does not depend on that alone, for there was evidence that the prisoner was not a draper; but there was found in his possession a licence to sell plate, certain articles of jewellery, and he was wearing another Albert chain similar to that sold to the prosecutor, and marked 15-ct. on every link. There was, therefore, evidence to negative the whole statement he made as to matters of fact, and the jury expressly found that the prisoner knew he was falsely representing the quality of the chain as 15-carat gold. The authorities draw nice distinctions between what is a statement of fact and what is matter of opinion or exaggerated praise. It is difficult in many cases for the court to come to the conclusion as to what is a matter of opinion and exaggerated praise, or what is a matter of fact; but the judge must consider those matters, and tell the jury not to convict for mere matter of opinion and exaggerated praise, and that the false statements of matters of fact must be made with the intention to defraud. In the case of Reg. v. Bryant the prisoner represented that certain spoons were equal to Elkington's A, not that they were Elkington's A, but equal to Elkington's A. Primâ facie that seems the expression of a matter of opinion and not one of fact, but at all events it was open to that construction. Though it was there decided that the conviction could not be supported, yet many of the judges expressed the opinion that it might be the subject of false pretences, although a false statement was made