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shall be convicted at a general ct.-mar. of having sold (without a proper order for that purpose), embezzled, misapplied or wilfully or through neglect suffered any provision, forage, arms, clothing, amm., or other military stores belonging to the said Co. to be spoiled or damaged, shall at his own charge make good the loss or damage, and be dismissed from the Co.'s service, and shall also suffer such penalty as he is liable to by the said M. A.

1. Further Explanation and Penalty by the M.A. and other Mil. Persons included.] By sec. xli. of the M. A. it is further enacted, "that every paymaster or other commis. officer of the Co.'s forces, or any storekeeper or commissary, or dep, or assist, commissary, or other person employed in the commissariat department, or in any manner in the care or distribution of money, provisions, forage, or stores belonging to the said United Co., or for the said United Co.'s forces, or for the use of H. M.'s troops, or other forces serving with the said United Co.'s forces in India, who shall embezzle or fraudulently misapply, or cause to be embezzled or fraudulently misapplied, or shall knowingly and wilfully permit or suffer any money, provisions, forage, arms, clothing, ammu., or other such mil. stores, to be embezzled, or fraudulently misapplied, or to be spoiled or damaged, may be tried for the same by and before a gen. ct.-mar.; and it shall be lawful for any (2) ct.-mar. to adjudge any such paymaster or other commis. officer, storekeeper, or commissary, or dep. or assist. commissary, or other person, to be transported as a felon for life, or for any certain term of years, or to suffer such punishment of fine, imprisonment, or dismissal from the Co.'s service, and incapacity of serving the Co. in any office, civil or mil., as any such ct. shall think fit, according to the nature and degree of the offence; and every such officer or person shall, in addition to any other punishments, make good at his own expense the loss and damage sustained which shall have been ascertained by such ct.-mar.; and the loss and damage so ascertained as aforesaid, may be recovered in any of H. M.'s courts of record (3) at the presidency where such offender shall be resident, or in any other court of law having jurisdiction, where any person adjudged by a ct.-mar. to have incurred any such penalties, or to make good any such losses or damages, shall be resident, after the said judgment shall be confirmed and made known; and after the said sum shall be recovered and levied, the same shall be applied and disposed of as the govt. of the presidency shall direct and appoint, in case the same shall be recovered within any of the said presidencies, and if not, then as the govt. of the presidency, to which the offender shall have belonged at the time of his offence, shall direct and appoint."

N.B. The words " or other person" used after, "or assist. commis.,"

(2) Such-in sec. cxxix, Ann. M. A., i. e. gen. ct.-mar.

(3) Supreme Courts.

include

clude all those who are named in arts. i. and iii, sec. 17, and secs. xlv. and lx. of the M. A.

By sec. xliii. of the M. A., it is further enacted, "that no paym. or other person shall receive any fees, or make any deductions whatsoever, out of the pay or allowances which shall be due to any officer or soldier in the Co.'s army (without his consent be obtained thereto), other than the usual deductions, as shall be from time to time required to be made according to the regs. of the service;" and by sec. xliv., it is further enacted," that if any officer or paym. shall unlawfully detain or withhold for the space of one month the pay and allowances of any officer or soldier (4), (clothes and all other just allowances being deducted), after such pay and allowances shall be by him or them received; then upon proof thereof before a ct.-mar. as aforesaid (5), to be for that purpose duly held and summoned, every such paym. or officer so offending shall be discharged from his employment (6), and shall forfeit to the informer, upon conviction before the said court, 800 Sa. Rs., and be liable to such further punishment as shall by the ct.-mar. be awarded."

N.B. The above forfeiture of 800 Sa. Rs. must be recovered in the Supreme Court.

2. Penalty of Persons who shall knowingly detain, buy, exchange, or receive from any Soldier or Deserter, or move, procure, counsel, solicit, or entice any Soldier, &c., to sell, &c. Arms, Clothes, Caps, &c., Provision, Forage, &c.(7)). It is further enacted, by sec. lxvii. of the M. A., "provided also, that if any person shall knowingly detain, buy, or exchange, or otherwise receive from any soldier or deserter, or any other person, upon any account or pretence, any arms, clothes (8), caps, or other furniture belonging to the said Co., or furnished and provided for the use of any troops or forces serving with the forces of the said Co., or any meat, drink, beer, or other provisions provided under any regs. relating thereto, or any such articles belonging to any soldier or deserter as are generally deemed regt. necessaries, according to the custom of the army, being provided for the soldier, and paid for by deductions out of his pay, or cause the colour of any such clothes to be changed, the person so offending shall forfeit for every such offence the sum of 40 Sa. Rs.; and if any person shall buy or receive

(4) See also sec. cxxxiii, Ann. M. A., 1824. (5) Gen. ct.-mar. See sec. xli, ante.

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(7) The provisions of this act do not apply to natives, except in the case of those amenable to the Supreme Courts, by residing in the towns of Calcutta, Madras, or Bombay, or being otherwise within the jurisdiction of such courts.

(8) i. e. The cloathing in wear. It is directed by G. O. G. G. in C. 23d Nov., 1822, that, "the articles which constitute cloathing in wear,' are in future to be considered, both the coats and pantaloons last issued." When others are issued, the coats &c., become the property of the soldier: The above order adds "the clothing in wear of men, who die in the service, who are discharged, or who desert, is to be con. sidered applicable to the recruits entertained to supply vacancies."

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).

(10) For the first offence.

3.

(9) See note 40, p. 15. (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, "the 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

3. Selling Stores, &c. without a proper Order for that purpose.] When mil. stores become 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);

So commenced within six months after the offence is committed." And therefore the informer must give information within six months.

(14) Jacob's Law Dictionary.

(15) Samuel on Arts. of War, p. 515.

(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 commission 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 fraudulent 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.)

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