Property In The Law Of False Pretences

DOIhttp://doi.org/10.1111/j.1468-2230.1957.tb02712.x
Published date01 September 1957
Date01 September 1957
PROPERTY
IN
THE LAW
OF
FALSE
PRETENCES
THE
difference between larceny by a trick and obtaining goods by
false pretences is axiomatic in English criminal law.
From
the
eighteenth century
to
the present day
it
has been laid down that
everything depends upon whether the owner
of
goods, as
a
result
of
some deception on the part of the defendant, intended to pass
the property in them to the defendant
or
merely possession of them.
The historical foundations of this
"
subtle distinction
"
are two-
fold. In the first place, the common law rule that larceny required
lack of consent meant,
or
was interpreted to mean by eighteenth-
century judges anxious to counteract the effects of capital punish-
ment upon the minds
of
the jury,a that consent by the owner to the
transfer of ownership nullified a charge of taking a thing
invito
domino.
Consent
to
a
transfer of ownership, even though
it
was
obtained by fraud, was none the less consent for the purposes of the
law of larceny. Secondly, one of the earliest statutes which dealt
with obtaining by false pretences, the Larceny Act,
182713
(which
was incorporated in later statutes dealing with the same problem
")
was construed as maintaining the old common law distinction
between larceny and false pretences, although at the same time
it
provided a remedy for the failure of justice which that distinction
frequently produced. In the leading case
of
R.
v.
Kilham5
a
strong court decided that, notwithstanding the change in the law,
there was still
a
difference between the two offences, and such
difference was based upon the distinction between obtaining posses-
sion and obtaining property.
For
that reason a man who obtained
the temporary use of a horse by means of a false pretence could not
be guilty
of
larceny, since he had not obtained possession with the
intent
of
permanently depriving the owner
of
the horse;
nor
could he be guilty
of
obtaining by false pretences, since all he had
got was possession and not property in the horse. What was looked
at by the court was the immediate and actual benefit obtained by
the defendant.
If
the
"
benefit
"
obtained by the prisoner was the
kind
of
benefit normally conferred by ownership, false pretences
1
See Larceny Act, 1827
(7
&
8
Geo. 4, c. 29),
8.
53.
a
Hall,
Theft Law and Society,
Chap. 2.
3
7
&
8
Geo. 4, c. 29,
s.
53, re-enacting
30
Geo. 2, c. 24,
s.
1, which had been
repealed by
7
&
8
Geo. 4, c. 27.
4
See now Larceny Act, 1916 (5
&
6 Geo. 5, c. 50),
8.
32.
5
(1870)
L.R.
1
C.C.R. 261, Bovill C.J., Willes, Byles, Hannen
JJ.,
and
Cleasby
B.
See also
R.
v.
Prince
(1868) L.R.
1
C.C.R. 150. For earlier
cases
in which the importance
of
the distinction had been maintained before
the Larceny Act, 1827, see
R.
v.
Adams
(1812) Russ.
&
Ry. 225;
R.
v.
Jackson
(1826)
1
Mood. 119;
R.
v.
Longstreeth
(1826)
1
Mood.
136.
464

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