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,

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 embezzled 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 mil. 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.

N. B. See sec. xiv., art 13 and 14, for the trial of Warrant officers. 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 în trust for others, to be their property), and under the charge of A, B,

"(17) Samuel on the Arts. of War, p. 516.

4.

4. Prove the selling by A. B. (and amt.), without a proper order or authority, or the embezzling, or fraudulently misapplying the money or stores ; or wilfully, or through neglect, suffering the provisions, forage, arms, clothing, ammn., or other mil. stores, to be spoiled or damaged (and the amt. or quantity). " The usual presumptive evidence, that the deft embezzled the money, &c., so received, or some part of it, is, that the deft. never accounted with his master (or proper dept.) for the money, &c. so received by him, or denied his having received it. Where the deft. received and paid sums to a large amount, for his master, and kept a cash account of them, which he balanced every quarter; it was holden by Garrow, B., that it was not sufficient to prove, that there appeared by this cash-book, to be a large balance due to the prosecutor, in the hands of the defendant, unaccounted for, even though accompanied with a confession that he had appropriated some of the money in his hands to his own use; but that it was incumbent upon the prosecutor to select and prove some distinct and specific act of receipt and embezzlement."-(Archbold's Crim. Plead., p. 158.)

Witnesses.] One witness to prove the receipt of the money, and embezzlement or misapplication, by A. B., by the production of the receipt or receipts, granted for the same, and by vouchers, shewing the amount paid, and balance in hand, to be deficient, as to the amount so charged and unaccounted for.

One witness to prove the embezzlement, or misapplication of the stores. Their being the property of the Co., will be ascertained by their marks; if not, one witness to prove them to be the property.

10. Punishment.] By the art., shall be dismissed from the Co.'s service. By sec. xli. M. A., be transported as a felon for life, or for any certain term of years; or to suffer such punishment of fine, imprisonment, dismissal from the Co.'s service, and incapacity of serving the Co. in any office, civil or mil., according to the nature and degree of the offence. And, in addition to any other punishments, to make good, at his own enpense, the loss and damage sustained, to be recovered in the Supreme Court. N. B. Sec. xli, M. A., does not extend the penalties to "the selling without a proper order." The art. contains the punishment. By sec. xli. M. A., dismissal, and incapacity, &c. may be awarded, but not dismissal, &c. and imprisonment.-(See note 19, also note 53, p. 90; see also N. B. after Punishment, art. 4, of this sec.)

CASE 1.] G. O. H. G., 9th Aug. 1815. At a gen. ct.-mar., Paymast. J. C., of the 21st L. D., was arraigned upon the undermentioned charges, viz.

1st. "For shameful neglect of duty, in not keeping the accounts of his department in a regular manner; and for over-drawing his estimates to the 24th Dec. 1809, to the amount of £249. 2s. 83d. sterling, or thereabouts; and not remitting the same, either to the agents of the corps, or paying the same to the dep. paymast.gen. on this station, such being contrary to his instructions.

2d.

2d." For embezzling or misapplying various sums of money amounting to 6,162 rix-dollars 4 skillings, Cape currency, on account of the different sales of cast horses, also the proceeds of 15 cast horses, sold the 23d May 1808, and one sold in the interior of the colony, the 28th Dec. 1810, and not remitting the same to the dep. com. gen., on this station, or crediting such sums to the public.

3d. For not having remitted a considerable sum of money, on account of income tax, arising from the pay of officers of the 21st L. D., [although he (paymast. C.) had deducted it out of their pay,] from 25th Feb. 1807, to 24th Aug. 1813 (18).

4th. "For conduct unbecoming the character of an officer and a gentleman, in embezzling or misapplying various sums of money, entrusted to his charge, as paymast. of the 21st L. D., on account of the pay, bât and forage, and allowances of several officers of the regt., amounting to £247. 1s. 8d. sterling, and 2,396 rix-dollars 5 skillings and stivers, Cape currency, or thereabouts; also the sum of £43. 10s. 2d. sterling, or thereabouts; being part of arrears of pay, due to the men of Capts. Gleadowes's, Crawford's, Hawkes's, Ord's, Leekey's, Jones's, and Grey's troops, from the 25th June to the 24th Augt. 1813, which he (paymast. C.) received from dep. paymast, gen.

on the station.

5th. "For embezzling or misapplying the sum of £297. 13s. 44d. sterling, or thereabouts, entrusted to his charge, as paymast., being monies due to Gen. Tarleton, Col. 21st L. D., T. Bottom, farrier maj., Serjts. A. M'Gregor and E. Dwyer, serjt. armourers, and Serjt. saddler J. King, part of which being the salaries of the regtl. armourers and saddler.

6th. "For embezzling or misapplying the sum of £4. 17s. 9d. sterling, being an hospital surplus, entrusted to his charge, as paymast. of the 21st L. D., as also not remitting the sum of £25. 14s. 2d. sterling, on account of the effects of deceased officers and soldiers of the 21st L. D. to the agents [which he (Paymast. C.) deducted in his accounts with the regt.].

7th. 1st Count. "For non-payment of a bill of 500 rix-dollars, Cape currency, drawn by Capt. Wallace, of the 21st L. D., on account of pay and subsistence, due to his troop, when stationed in the interior of the colony, between the 9th Oct. 1811, and 25th Dec. 1812, although accepted by paymast. C.

2d Count." For unofficer and ungentleman-like conduct, in embezzling or misapplying the sum of 1,121 rix-dollars 7 skillings and 5 stivers, Cape currency, or thereabouts, being monies entrusted to him (Paymast. C.) by Serjt. Farrell, and Lance-serjt. Barrowclough (messman), and private A. B. Fyffe, of the 21st L. D.

3d Count. "For embezzling or misapplying the sum of £12. 1s. 9d. sterling,

(18) This was beyond the period of limitation.-(See M. A. sec. lxxi, No. xvi, p. 19.)

sterling, or thereabouts, being monies due by him (Paymast. C.) to privates W. Maddox, J. Denby, B. Piggin, aud J. Griffiths, of Capt. Gleadowes' troop; E. Daw, R. Daw, and J. Salman, of Capt. Grey's troop; and W. Thorp, of Capt, Crawford's troop."

The prisoner pleaded guilty to the 1st, 2d, 4th, and 1st count of the 7th charge, and not guilty of the 3d, 5th, and 6th charges, and of the 2d and 3d counts of the 7th charge.

FINDING-Guilty of the 1st and 2d charges-Guilty of the 3d charge (except of the words in italics, and which sum appears to the court, from the statements laid before them by the prosecutor, to amount to £2.446, 3s. 21d. sterling, or thereabouts).

Guilty of the 4th and 5th charges-Guilty of the 6th charge (except of the words in italics). From the statement given into court by the prosecutor, the total amount of sums due on this head is £70. 158. 0d. sterling. By deducting the two sums of money remitted to the agents, by bills of exchange, from the dep. com. gen. on this account, there appears to be a balance of £14. 9s. Od. sterling, still due from the prisoner.

Guilty of the 1st count, 7th charge-Guilty of the 2d count of the said charge, to the following extent, viz. of unofficer and ungentleman-like conduct, in embezzling or misapplying the sum of 1,036 rix-dollars, 7 skillings and 5 stivers, being monies entrusted to him, as follows, viz. 900 rix-dollars (with interest thereon), by Mrs. E. Farrell (late Stanley), 98 rix-dollars, by private A. B. Fyffe, and 38 rix-dollars, 7 skillings and 5 stivers, by Lance-serjt. Barrowclough.

With respect to the 3d count of the said charge, the court is of opinion that the prisoner, paymast. J. C., is not guilty, it appearing from a document produced to the court from the cavalry depôt, that the men mentioned in this count, have made unfounded claims, excepting private W. Thorp, upon whose claim, he being in the interior of the colony, the court have no means of deciding.

SENTENCE-To be dismissed from H. M.'s service; to be rendered incapable of serving H. M. in any office, civil or military; to make good the losses sustained (as specified in the opinion of the court, on the several charges), and to be imprisoned for the space of 12 calendar months (19).

REMARKS. It is considered by the court, in regard to the defi

ciency

(19) G. O. H. G. 16th Oct., 1813. Remark on the case of W. M., Esq., paymast. Leeds recruiting district.-H. R. H. the P. R. has been pleased to approve and confirm so much of the finding and sentence of the court, as adjudges the prisoner W. M. to be dismissed from H. M.'s service, and as ascertains the balance due to the public, it appearing to H. R. H. that the sentence of imprisonment in one of H. M.'s gaols, until the above balance is paid, is not legal, but that such balance, so ascertained by the court, may be recovered in H. M.'s Courts of Record.-(See Ann. M. A. 1824, and sec. xli, M. A., 4 Geo. IV, cap. 81, and note 53, p. 90.) (Signed) H. CALVERT, Adj.gen.

By command: