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receive any grain, hay, straw, or other forage, provided for the use of any horse or horses belonging to the Co's service, from any trooper or other soldier, knowing him to be such, or shall move, procure, counsel, solicit, or entice any trooper or other soldier, knowing him to be such, to sell or otherwise dispose of any such grain, hay, straw, or other forage, as aforesaid, the person so offending shall forfeit for every such offence the sum of 40 Sa. Rs.; and upon conviction by the oath of one or more credible witness or witnesses, before any of H. M.'s justices of the peace, the said respective penalties of 40 Sa. Rs., shall be levied by warrant under the hand of such justice of the peace, by distress and sale of goods and chattels (9) of the offender ; one moiety of the said first (10) mentioned penalty of 40 Sa. Rs. to be paid to the informer (11), and one moiety of the said last (12) mentioned penalty of 40 Sa. Rs. to be paid to the informer, and the residue to be paid to the government of the Presidency under which such offender shall be resident; and in case any such offender, who shall be convicted as aforesaid of having knowingly received any arms, clothes, caps, or other furniture belonging to the Co., or any such meat, drink, beer, or other provisions, or any such articles generally deemed regt. necessaries, or of having caused the colour of such clothes to be changed, or of having bought or received any grain, hay, straw, or other forage, provided for the use of any horse or horses belonging to the Co.'s service, from any trooper or other soldier, knowing it to be such, or of having moved, procured, counselled, solicited, or enticed any trooper or other soldier, knowing him to be such, to sell or otherwise dispose of any such grain, hay, straw, or other forage as aforesaid, contrary to the intent of this act, shall not have sufficient goods and chattels whereon distress may be made to the value of the penalties recovered against him or her for such offence, or shall not pay such penalties upon such conviction, or give sufficient security for payment thereof, within the space of four days from such conviction, then, and in such case, such justice of the peace shall and may, by warrant under his hand and seal, either commit such offender to the common goal, there to remain without bail or mainprize for the space of three months, or cause such offender to be publicly or privately whipped, at the discretion of such justice" (13)
3. (9) See note 40, p. 15.
(10) For the first offence. (11) Is a competont witness when the statute cannot otherwise be executed. Phillips's Law of Evidence, vol. ii, p. 117, therefore, in this case, were the informer the only witness, his single evidence would be received and ensure the penalty. The sec. lxvii. of the M.A. requires one or more credible witnesses. Therefore, the objection would be to the credit due to the informer, and not as to his competency. If another witness were to be had, his evidence would be taken together with the informer's.
(12) i. e. For every additional offence. The former words of this sec. are, said respective penalties of 40 Sa. Rs., and 40 Sa. Rs."
(13) M. A. sec lxx. “ Provided always, that no action shall be brought, or prosecution carried on, by virtue of this act, for the penalties aforesaid, unless the same be
commenced commenced within six months after the offence is committed.” And therefore the informer must give information within six months.
3. Selling Stores, &c. without a proper Order for that purpose.) When mil. stores beeome unserviceable, they are directed to be sold, under instructions from the mil. board, who sanction the sale, on the report of a committee of survey previously held; such instructions received direct from the Military Board, or issued in orders by the comg. officer of the division, &c. under similar instructions, would be a sufficient authority or order for the sale of such stores, or of any others, without any survey being held upon them, if sold under such abovementioned directions. The mere selling without a proper order, would appear to be sufficient to ensure the penalty awarded by the art. Sec. xli. of the M. A. does not mention the word selling, and therefore, unless such sale was attended with the application of the produce to the party's own use (as in Charge 6, Case 2), the additional penalty awarded by the article would not be inflicted. The sale, without a proper order, may be attended with other bad consequences besides the loss that may be sustained; the stores may be sold at a time when it may be impossible, perhaps, to replace them, and thus the interests of the service may be injured, or the replacing them may be attended with an increase of
expense. The stores may be sold under their value to serve another person ; and though the amount be carried to the credit of government, still a loss is sustained. If the party should so sell, or derive any advantage even indirectly, he would, in such cases, be visited with the additional penalty awarded by sec. xli. of the M. A.–(See Charge 3, Case 2).
4. Embezzling Stores, &c.] “ To embezzle, is to steal, pilfer, or purloin ; or where a person entrusted with goods, wastes and diminishes them” (14). “ Embezzlement imports a peculation, or secret abstraction and appropriation, direct or implied, of the thing entrusted to be kept, or employed in some general or particular way" (15). Thus as in charge 2, case 1. Where a pay-master sold cast horses, and did not credit the proceeds of such sale to govt. Or, where a commissariat officer fraudulently received into the public store a quantity of barley, at an average weight of 60 lbs., in place of 66 lbs. the measure, the ct. found embezzlement.—(See charge 1, case 4.) And, where he falsely and fraudulently granted a receipt for 1394 measures of barley, when in fact only 1230 had been bona fide delivered, whereby payment was made for 1394 measures, the court found the intention to embezzle.(See charge 2, case 4.) There must be a fraudulent intention (16);
(14) Jacob's Law Dictionary.
(16) In the case of the King v. A. Davison, Esq , who had been employed as an agent, to purchase barrack stores for the use of H. M.'s forces, at a commission of two and a half per cent. on the price of the stores purchased, which commissio. was to be his sole emolument. It was charged, that the defendant intending to defraud the King, delivered large quantities of barrack stores at pretended prices, amounting
so where a commissariat officer was charged with having embezzled or fraudulently misapplied, public stores, committed to his charge, being deficient 1,979lbs. of oats, and the court found an over-issue, and that part of the deficiency was probably occasioned by wastage or other losses incidental to an article of that nature, they acquitted him as to embezzlement. (See charge 2, case 5). And where a pay-master was charged with having embezzled and misapplied the sum of £75. 7s. 7d. and it appeared that there was a balance due to him, and exceeding that charged against him, the court acquitted him of embezzlement. -(See charge 4, case 7.)
5 Misapplication of Money, &c.] “ Misapplication, i. e. such a criminal misapplication as is in the view of the art., is not the mere allotment of a thing to another or foreign purpose, to which it was directed, or ought to have been applied ; still, however, it would be for the party departing from his instructions or directions, to justify himself in every instance for such departure. It is not such a misapplication as might possibly be justifiable, but a fraudulent misapplication, having the private interest of the agent either directly or impliedly in view, that it is the purpose of the art. to provide against. The words of sec. xli., of the M. A. are “who shall embezzle or fraudulently misapply, or cause to be embezzled or fraudulently misapplied, or shall knowingly or wilfully permit or suffer any money, &c. to be embezzled or fraudulently misapplied.” So, in the case of a pay-master selling cast horses and not accounting for the amount. Such was charged and found to be an embezzling or misapplying of such amount.-(See charge 2, case 1.) So, where a pay-master had been entrusted with various sums of money, in his capacity as pay-master, and did not account for the same, such was also deemed an embezzling or misapplying of such sums.-(See charge 4, 5, 6, 2d and 3d counts, 7th charge, case 1.) And the purchase and sale of checks for forage and stores has
been to £15,136. 9s. 9d., as stores purchased by him, as agent for such commission, which stores were not purchased by him as such agent, but were made and manufactured by, and were the property of the defendant himself. A trial took place before the Court of King's Bench, on an information filed by the Attorney-General, Hilary Term, 48 Geo. III. John Allen, a person in the employment of Mr. D., was procured to sign false vouchers for the receipt of the above sum, and under colour of such false and fruudulent vouchers, Mr. D. received his commission of two and a half per cent. He was found guilty; and Mr. Justice Grose passed judgment in the following words : “ that you, receiving a stipend from the king to check the fraud of others, to prevent extortion, and insure the best commodities at the cheapest rate, became the tradesman and seller of the article, and had thereby an interest to increase your own profit, and to commit that fraud which it was your duty to prevent. It is in order, that those who sell to the public may deliver the articles at the lowest price, at which they can be charged, and of the best quality, that a person who is supposed to have no interest, either in delivering articles fewer in number or inferior in quality, is allowed to receive a commission, by way of per centage, upon the price of articles.” He was sentenced to be imprisoned in Newgate, 21 calendar months. He was called upon to return all the commission he had received, and paid the whole into the Exchequer.-(Howell's State Trials, vol. xxxi, p. 96.)
been deemed a fraudulent misapplication of them by those in charge.-(See remarks of court to case 2.) Also, where a pay-master had overdrawn and not accounted for the money so over-drawn, he was charged with embezzling and misapplying the same.-(See case 7.) The fraudulent misapplication of money intended by this art., is in fact, applying the money of govt. or that of others with which the party is, in his official capacity, entrusted with the charge or care of, to private instead of the public purposes for which they were entrusted. The misapplication of money by paying A. instead of B. would only be a disobedience of orders, or a neglect of duty. But, with respect to the fraudulent misapplication of provisions, forage, arms, clothing, ammn., or other mil. stores, such acts may be committed in various ways; such as, where there may be a contract for the supply of the same, to condemn or be the means of condemning such articles as are good, or of mixing good with bad articles in such a manner as to insure the condemnation of the whole, and thus occasion a greater demand to the advantage and profit of the contractor; and consequently defrauding govt. of the difference of value between good and condemned articles.
6. Malversation.] Malversation as the French word imports is a misdemeanor, and all attempts to commit a criminal or improper act are misdemeanors. The improper expenditure of the public money, is an act of malversation, or employing such money to a bad use; applying it to private, instead of the public purposes for which it was intended. So, where a pay-master drew, on the public account, upon the regular agents for a sum of money beyond what was actually required for the regular service of his regt., such over-drawing was considered by the court to be a malversation in his office.—(See cases 6 and 7, 1st charge.)
A commissariat officer was dismissed the service for making purchases of sundry supplies to a large amount, in disobedience of positive written orders.---(See charge 1, case 3.)
An assist.surgeon was dismissed the service, for receiving a discount or deduction from the amount of bills paid by him, on the public account, and not giving credit for the same.—(See case 8.) Such was undoubtedly malversation, inasmuch as, in cases where on prompt payment being made, an allowance is granted, such allowance becomes the property of govt.; and if an allowance is not usually made, then the person supplying such articles in future, may either make a higher charge to admit of paying a discount, or give an inferior article; and in either case the govt. is defrauded.
7. Wilfully or through Neglect suffer Provisions, Forage, Arms, Clothes, Ammn., or other Stores to be spoiled or damaged.] “The wilful sufferance of stores to be spoiled or damaged, carries in its front such decisive characteristics of crime, as to require no illustration.". A neglect may be “in the non-observance of special instruction or gen. regs., in reference to the custody or disposal of the things in charge, or in contempt of usage and custom of office, in the discharge of which the trust arises, in respect to the particular charge; or, when there are no
instructions, regs., or customs, to guide the officer in the custody of the matter or thing intrusted to him ; in a flagrant and gross omission of care, which is usually taken, in legal intendment, as an evidence of fraud. There is the greater reason to conclude so, from the crime being put in the article, on the same footing with respect to punishment and responsibility, with a wilful suffering of the object in trust to be spoiled or damnified. Any inferior degree of neglect, though implying an absence of a special and refined care, which considerate or more wary persons are in the habit of using in their own affairs, would not amount, it snould seem, to that culpable or criminal negligence, so as to expose the party guilty of it to the multiplicated penalties of the article " (17). Where a store-keeper had filled up casks containing spirits with water, with intent to conceal the deficiency of such spirits, whereof he had embezzied and fraudulently misapplied a part, such was charged and found to be, knowingly and wilfully permitting and suffering to be spoiled and damaged.—(See charge 5, case 2). So would be the wilfully or through neglect suffering any provisions, forage, arms, clothing, ammn., or other mil. stores to be exposed to the inclemency of the weather, or to be placed in damp situations, from either of which causes the articles are damaged. Or, where stores are wilfully suffered to remain unlooked at for any length of time, when constant or occasional removal is directed, or though not directed, is obviously necessary for their preservation. Or wilfully failing to apply the proper and known prevention to prevent any injury being sustained, or when sustained, not using the known and customary means to prevent further injury; or, in practicable cases, to restore them to their original state, so that by any of the above wilful acts the stores may be spoiled or damaged, to the injury of govt.
8. Charges.] See Forms, Nos. 39 and 40, Chap. I. That A. B. having charge of, &c., did on at sell sundry inil. stores, the property of, and belonging to, the E. I. Co., viz. (insert the No., quantity, and quality) without a proper order or authority for that purpose. Or, &c., did embezzle, misapply, or wilfully, or through neglect, suffer provisions, forage, arms, clothing, ammn., or other mil. stores belonging to, &c. &c., viz. (insert No., quantity, and quality) to be spoiled or damaged. Or, &c., did embezzle or fraudulently misapply a sum, or sums of money, being the property of, and belonging to, the E.I.Co., amounting to, (state the sum or sums). Or, sum or sums of money for the use of, (and state the purpose), or placed in his hands in trust for, (state the persons' names, &c., and the amount).
The same being in breach of the Arts. of War.
9. Evidence.] Nos. 1 and 2, as at Chap. III, sec. ii, art. 1. 3. Prove the money or mil. stores to be the property of the E. I. Co. (or money in trust for others, to be their property), and under the charge of A, B.
4. (17) Samuel on the Arts. of War, P.