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Published online by Cambridge University Press: 16 January 2009
In English law the definitions of the most important crimes were framed in an age when economic conditions and social relations were simple and when the paramount need was to give protection rather against violence than against deceit. As time passed a much more complicated economic order developed and in consequence of this evolution the intellectual aspect of crime gained an ever increasing prominence at the expense of the physical aspect. Not only did more subtle forms of transgression in the economic sphere, such as are now the crimes of forgery, obtaining by false pretences, etc., make their appearance, but also the lines of demarcation between what should be regarded as business astuteness and what should be stigmatized as criminal fraud became more and more difficult to draw.
1 (1873) 42 L. J. M. C. 73; L. B. 2 C. C. E. 38.
2 (1473) Y. B. 13 Edw. 4, Pasch. pl. 5.
3 (1779) Old Bailey Sept.; Bast 2 Pleas of the Crown, 685; 1 Leach 212.
4 R. v. Russett [1892] 2 Q. B. 312,Google Scholarper Coleridge, Lord, C.J., at p. 314.Google Scholar See East 2 P. C. chap, xvi, par. 113.
5 For criticisms of this doctrine see Beale, ‘The Borderland of Larceny’ (1892) 6 Harv. L. R. 248;Google ScholarHamson, , ‘The Effect of a Secret Fraudulent Intent’ (1935) L. Q. E. vol. 51, p. 653;Google ScholarHall, Theft, Law and Society (1935) p. 11.Google Scholar
6 20 & 21 Viet. c. 54, s. 4, replaced by 24 & 25 Viet. c. 96, s. 3.
7 Oppenheimer v. Frazer d Wyatt [1907] 2 K. B. 50 at p. 77,Google Scholarper Kennedy L.J.
8 That the phrase ‘larceny by a trick’ may still create some confusion can be seen, for example, by comparing pages 483 to 485 with pages 311 and 312 of Stephen's Digest of the Criminal Law (7th ed., 1926).
8 42 L. J. M. C. at p. 84.
10 At p. 85.
11 At p. 77.
12 At p. 76.
13 See Coke, Inst. III , 107.
14 E.g. by a servant.
15 E.g. even to a guest or to a servant.
16 That these seven judges were in error is clear from their quoting as authorities the cases of Davenport (2 Bussell on Crimes (9th ed.) p. 822) and Savage (5 C. & P. 143) in each of which the owner was induced by false statements to make a bailment of his goods to the prisoner.
17 At p. 79.
18 2 East P. C. 603.
19 Dears. & B. 231. The reasoning justifying the conviction in this case Bramwell B. said (at p. 85) was ‘such as ought not to exist in any law, most especially not in the criminal law’.
20 1 Den. 188.
21 1 F. 36.
22 1 Mood. 137.
23 At p. 79.
24 As was pointed out by Bramwell B. at p. 84.
25 ‘The clerk intended A to receive what he ought to have intended B to receive, but it was not the less his intention that A should receive what he handed over to him’: per Cleasby B. at p. 93.
26 At p. 80.
27 At p. 81.
28 Pigott B.
29 One judgment in which Cockburn C.J., Blackburn, Mellor, Lush, Grove, Denman, and Archibald JJ. concurred; one judgment in which Bovill C.J. and Keating J. concurred; and one judgment delivered by Kelly C.B.
30 Martin B., Bramwell B., Brett J., Cleasby B.
31 At p. 82.
32 At p. 83.
33 At p. 89.
34 At p. 88: quoting the words of Blackburn J. in R. v. Prince (1868) 38 L. J. M. C. 8.
35 At pp. 91–92.
36 At p. 93.
37 The framers of the Valentinian Law of Citations have been criticized for this very weakness: see Buckland, Text Book of Eoman Law (2nd ed.) p. 34.
38 Russ. & Ry. 81.
39 At this date the money order business transacted through the post office was carried on as a private venture, but with official sanction and encouragement. There was a central ‘Money Order Office’ to the account of which payments out and in were placed (see Murray, , ‘The Post Office’ (1927) p. 160;Google ScholarCrutchley, , ‘G.P.O.’ (1938) p. 203).Google Scholar It is apprehended that in principle there is no material difference on the point of authority to pay out on money orders between the position of a subordinate post office official in 1805 and that of the clerk in Middleton's Case. It does not indeed appear that Mrs. R. was an official at all.
41 E.g. Kenny, , Outlines of Criminal Law (15th ed.) p. 239;Google Scholar Stephen's Digest of Criminal Law (7th ed.) pp. 307, 313; Archbold, Criminal Pleading, Evidence and Practice (1938) 533.
41 It is by no means certain that such a provision would be a wise act of criminal policy, as it would cover cases of mistake which might better be left to the operation of the civil law.
42 E.g. Coke, Inst. III, c. xlvii (p. 107). ‘By taking, and not by bailment or delivery, for that is a receipt, and not a taking.’
43 See also Wilkins’ Case, O. B. Ap. 1789; 2 East P. C. 673.
