Star. — London, England, 1808-12-08 00:00:00

w hich were actually supplied 111 , however, was no merchant; instead of inserting his name in • Office, made use of those of /his inferior Clerks. Watson the Learned Counsel believed Defendant ; he could never receive the money for them ; Allen, bills of parcels were ~geed their receipts, as received defendant ; whereas is was untie. - never received a farthing.-- bile he was deluding Govern - was w tching against fraud, , uder ; d gave himself an market, hich he had taken 1r to keep down. The Lear to know what defence could ion. He had been told the Government here no losers c if other persons than he had Government would have paid • he charged no higher than . of this the Learned Counsel defendant was no check to other per -.possible that he would suffer the .., throukh his hands cheaper than fluty the defendant undertook was to . oest and cheapest goods he could from other , s ; the manner in which he performed that duty, 4 to provide a considerable part of the goods out ihis o st ores, charging them at the same price as wn then a, s o that it was utterly impossible he should c any check upon them. But in addition to this, the e n d ao s had charged commission upon his own. ; , e d s . this, the defendant had hinted, was a mis ,6 ; that it was always intended to render back his; and that in a subsequent account it would be - - the defendant's last account was de %not till 1806, that he thought Is, it might be said, was a Learned Counsel had evidence hand writing. In Decem was examined before the Enquiry, when he stated goods himself, but that for , charged ; and the fact was, render some goods after 1802, came from his warehouse in . which he did charge no Defendant then be permitted his own goods till 1802, which he always intended to the answer was that in Dec. sissioners found the Defen several particulars ; and the :vestigation was set on foot, set in what he c a lled a supplemental account in May MS, dated 1804, but correcting errors as early as 1797, in which he debited himself to errors in former accounts 15,4 , 791. making a balance against him of 6,4 71. whereas the balance was formerly in his favour 9068/. and yet this supplemental account did not contain his error of charging Commission upon goods furnished by himself. The Learned Counsel did not ention this to create any undue prejudice against e Defendant; but to shew that the idea of return the commission could not have been thought of after the formation of this account in 1806. The dam thought this undue charge of commission would not be detected, since if bills made out in other names for the different articles were rendered, the Commissioners must be perfectly satisfied. After this too, when the Commissioners for Barrack Ac cants called upon the Defendant for his Cash Ac comt, he excused himself from delivering it, saying dut bis accounts had all been examined and settled, sad their balance had been paid in ; so that Govern mm transactions with him were at an end. Cameral Delancey's letter, dated December 28, 11N, proposing the employment to the defendant ; Ed& defendant's answer to it, dated January 10, as, accepting the commission of 2i per cent. were is put ;- and read. 0 1 ril ,le a put in Mr. Bonnor, Secretary to the Commissioners for Barsck Accounts, produced the defendant's half return of bedding from December, 1797, to me, 1798, which was put in and read; and the, mme of George Watson, as one of the suppliers, appeared to be written upon an erasure. William James, who lived with Lodge, the packer,' !Roved the bedding to have always passed through', their bands ; and that they rendered accounts of it to die defendant, on every 24th June and 24th De- 1 ember, stating the names of all persons from whom they received goods. Mungo Sheddon, one of these , names, managed the defendant's army business in Bedford-street ; the witness knew him in no other character than as such manager ; the goods opposite his name came from the defendant's warehouse ; the, witness also knew Watson, a clerk in the same ware house, of about 22 or 23 years of age. Upon his cross-examination by Mr. DALLAS, he raid that Lodge himself was ill. The witness knew' the Defendant was engaged in other concerns. The name of Sheddon occurred uniformly when the arts des came from Bedford street. Mr. Bonnor then proved the signature of the De-, reactant to an account of charges for the same half year, in which the name of Sheddon did not occur to a charge, answering to the corresponding number (10) in the other account, and amounting to 15,1361. $ but is which the name of Watson was substituted. The account charged commission upon the whole amount ; and referred to the bills of parcels (No. 10) aid to be " bought of George Watson," the receipts of Which were expressed to be " of Alexander Davi son, Esq. for George Watson, signed) John Allen." • Bonnor next proved .he signature of the de 'want to a general account of receipt and expendi t4re from Dec. 1797 to June 1798, which account was likewise p witness next in and read. J he same proved the signature of the nerendant to his examination in Dcc. 1805, before the Conunissioners of Military Inquiry, which was like- Wise put in and read. William James, upon being re-examined, said, the i ler" wore deposited in L o d ge ' s ware h ouse i m medi-' nte , from the merchants, and were from thence sent to the several barracks. The snobernental account of May, 1806, was then led, pat in, an d rea d ; as was lik ew i se the defen dant's let ter o f 19th November, 1806, to the Com %loners for Barrack Accounts, declining to pro nee his accounts to the Commi ss ioners. 41 was next proved, that in 1803, the defendant provided bedding, upon which he charged no corn.' mission, by the account of that period, Well was ve- I rifled, put in, and read. The subsequent seven halfyearly accounts to 1802, in all their parts, were then successively verified, in a similar manner, in all cf which the names of either George Watson or John Alien occurred as suppliers of goods to a very large amount. John Allen said he had been in the Defendant's employ since 1800, and had the management of his books in his army cloathing concern. Watson either was, it the time alluded to, an apprentice to the de fendant, or had been. Neither he nor the witness. carried on business on their own account. The reccjpt for 15,1361. dated Dec. 31, 1798, signed by the wit ness, and importing to be for bedding furnished Watson, the witness did not write till 1800. The witness did not receive any money, and did not know of any supply by Watson—he signed the paper by the desire of Mr. Bowering, the Defendant's clerk, at his office, in St. James's-square. Mr. Bowering dic tated it to the witness. Sheddon had mentioned it first to him at Bedford -street, and desired him to go to St. James's-square upon the business. The witness signed similar receipts in half-yearly accounts for four or five years, besides the early ones bein all done at one time. They were for years during which the witness had no acquaintance with the subject or the parties. The latter receipts he signed as the half years came round. He always went from Bedford street to St. James's-square to do this, by the desire of Bowering. Mr. ATTORNEY-GENZRAL here stated, that the bills and receipts from the 24th June, 1800, were as from Allen himself, but he too had never received from the Defendant the money for which he had signed receipts —nor did he, at any time, supply bedding to any amount whatever. The articles so supposed to have been supplied were sent from the Defendant's ware house, in Bedford-street. Upon Allen's cross-examination by Mr. Witsow, I hesaid, the Defendant wasconcerned in other branches of business, and his general office was in St. James's square. Bowering was the Defendant's general clerk, and was generally in St. James's-square. Bowering told him, as a reason for requesting the witness to sign the receipts, that the Defendant could not appear both as buyer and seller in the same account. Tlie witness knew that some of these transactions were before his time. The Defendant kept four Or five clerks in Bedford -street, about one hundred work. people in the warehouse, and employed many hun. dreds out of it. The goods were sent to Lodge from the Defendant's warehouse, without any charge of secrecy ; and the witness knew of no instance where goods were brcught from any other merchant's to Bedford-street. Upon his re-examination, he said that Watson was absent a considerable part of the year, in which the witness signed the receipts as for him ; but the wit ness did not know whether he was absent at the pre cise time of such signing. The witness was not in London before 1800. Mr. DALLAS then spoke at great length in behalf of the defendant ; he said, that previously to she year 1795, the business which the defendant had lately con ducted was carried on by Barrack Masterson the spot, who, in addition to their regular salary, received a commission of five per cent. In consequence, how ever, of the inconvenience which was found to be occasioned by the suppliers of stores refusing to be come answerable for the delivery and damage of the articles, and in consequence of many frauds practised by the Barrack Masters, for which some were sus pended and others dismissed, General Delancey thought of changing the whole system of supply, and applied to the defendant, whom he knew only by his general honourable character to undertake the situation he had lately held. General Delancey applied to the defendant, and the Learned Counsel wished this to be particularly understood, as several calumnies had gone forth, which this assertion might tend to counteract. The Learned Counsel thought it would not be amiss to consider a little what the charge against the Defendant was not ; and here he took occasion to re probzte the premature persecutions which the Defen dant had undergone, in the shape of publications, calculated not to inform, but to inflame the minds of the public upon this subject. The Jury, however, he trusted, would dismiss these publications from their minds, if they had read them, and confine their atten-1 tion simply to the evidence before them. First, it was not a part of the present charge, that the Defen dant, who, as a Contractor, was stated to have de frauded the public, had charged above the market price for those articles he furnished ; and the Learn-1 ed Counsel would prove that he had charged below them, so that the public were in fact benefited by this supply. Secondly, it was not imputed that the De fendant had been guilty of a fraudulent participation with any one merchant, although nearly a million of the public money had passed through his hands. And if the Defendant should be found, on every other oc casion, to have conducted himself properly, where he might have easily done otherwise, it was to be consi dered that he actually had no intention to defraud. • Under the original agreement, the Defendant was not allowed to furnish his own stores and charge com mission and was it not most extraordinary that du , ring four years of this transaction be should never have presumed to Furnish a single article, and then turn round and change his practice ? The whole of the case, therefore, could not be before the Jury ; and it would have struck the mind of the Learned Counsel, had he known nothing of this information before he came into Court, that it was very singular that the Learned Counsel for the prosecution had not called General Delancey to tell them what the real facts were. The General was, however, present, and the Learned Counsel would himself call him. The Defendant did not employ his own stores till 1798 ; and the General would tell the Jury, that there was, about that time, so considerable an increase of bar racks, that this General, not being able to procure suf ficient stores, bad a conversation with the Defendant in the latter end of the year 1797, in which he au thorised the Defendant to supply his own stores. The present information stated only the first agreement between the General and the Defendant ; and there fore the Learned Counsel submitted that the relation between the Defendant and the public was not clearly set forth in the information, and that the Defendant must be acquitted upon the present information, not in point of form, but in point of substance. The se tend agreerslea expressly was, that the Barrack Ofg sets should Have the Defendant's patterns and pricel sent them, and determine whether they would take the articles from his own stores or not. _ Lord ttZENBOROUGH here interposed to draw the attention-of Mr. Dallas to one of the queries of the Commissioners of Military Inquiry, to which the De fendant's answer stated, that he had no other agree ment with General Delancey but the two letters which had been read. Mr. DALLAS resumed, and contended, that if he produced General Delancey's evidence as to this se cond agreement, there could be no doubt left upon the Jury's minds that it had been entered into. If so, then the question was, whether the Defendant was entitled to Commission or not ? and, upon the equita ble construction of both agreements, the Learned Counsel contended, that he was as much entitled to commission upon the one as upon the other. Whe ther he was entitled to commission at all, and whe ther he made a fraudulent charge to support that ti tle, were two different questions. Tithe Jury should be of opinion with the Learned Counsel, that the de fendant was intitled to commission, the question of fraud fell to the ground ; if not, was this claim cf commission a claim so completely without the colour of right', as to be called fraudulent ? The length of the argument to prove that the Defendant was not entitled to commission, both in cases where others provided the storesand where he himself did, would go to say, that if the goods came from a Merchant's warehouse, next door to the Defendant's, he was en titled tncommission, and if from his own warehouse he was not. The Learned Counsel, however, denied that there were no instances where profit and ,:. mission were both claimed ; and even if there were, there was no resemblance between the case of a com mon agent, and one with all this truNt and riske The Learned Counsel instanced the cases of Insurance Policies, where the broker was generally the under writer too, and derived commission and profit from the same concern. The Learned Counsel further urged, that, from the nature of the contract, if any man was employed to buy stores, in which he himself was a considera ble dealer, he must, if he does not consume his own goods, raise the price of the article by an artificial scarcity, to the great injury of the public. If the Defendant had not sold his own goods, he would clearly have been entitled •by his first agreement to commission, and therefore the public would be not at all injured by the payment of that commission. It had been asserted, that the Defendant's selling his own stores kept up the market price; the Learned Counsel should prove that the stores were purchased by Government ten per cent. cheaper of the Defen dant, than they would have been, of any body elee.— As to the fraud which the fictitious bills and receipts were intended to cover, every dealing had been prov ed to be open and known to font Clerks, who were not engaged to secrecy ; and the reason why the bills of parcels were not delivered in the Defendant's own name was, that Bowering thought of a difficulty in not keeping the original agreement, if Merchants' bills and receipts were not given with the goods, and the Defendant's Clerks names were put in because they knew the nature of the transactions. What fraud was here ? The fiend must be, either to con ceal the-fact that the Defendant was seller, or to con ceal that he was not entitled to commission ; but, if the Learned Counsel proved, that the agreement was that the Defendant should furnish goods, and that samples were continually sent to the Barrack Office, in the name of the Defendant, every idea of fraud must be done away. Thes things remained till 1802, when Boweriag suggested a doubt whether the Defentlant could sub stantiate his claim to commission, and that the De fendant had better not charge it in furore. The De fendant, upon this, directed Eowering to apply at the Barrack, Office, and get back the accounts for rectifi cation. It was not when the Military Inquiry had been instituted that these accounts were first asked. for ; so that the disclosure is not got rid of by sup posing it to arise from dread of inquiry. The Learn ed Counsel would prove that this demand had been made at the Barrack Office in 1802. General Delancey proved, that in consequence of the inconveniencies attending the old plan of barrack contracts, he applied to the Defendant, with whom he' had no personal acquaintance whatever, to undertake the concern entirely upon himself. The letters pas sed between the witness arid the defendant, which had been read, and the defendant acted merely as Agent till 1798, perfectly to the witness's satisfaction. At this time there became occasion for new stores to new barracks, and for replenishing stores CO old ones ; and it having been stated that there was a difficulty in procuring stores, the witness permitted the defen dant to send supplies from his own stores, in the be ginning of the year 1798. After this time, the witness understood he did so ; and he was directed to send patterns and prices to the Barrack Office for inspec tion. This was known in the office to Colonel *Kenzie and Mr. Henry Castleman in particular : these Gentlemen assisted the witness in the inspection of the patterns and prices. In this change in the wit ness's agreement with the defendant, the witness meant that the principle of his letter of 1791 should govern the defendant's conduct still, his supplies being the only alteration in the agreement. The witness considered the defendant to have always acted fairly, and had no suspicion of his having any inten tion to defraud the public. It was net the witness's opinion now, that the defendant wes capable cf com mitting a fraud ; and if the witness were in office now, he should be glad to employ the defendant. Upon his cross-examination by the ATTORNEY GE-. NERAL, he said he was informed of the scarcity of stores, in 1798, by the defendant, and knew of it by other means. The witness saw no objection to the defendant's furnishing the articles from his own stores, if he did it as cheap as others. The witness did not authorise him to charge commission upon what he had furnished; nor did he knowingly pass any account containing such commission. Nothing was said about commission. The witness could not have passed such an account under his agreement with the defendant ; but the defendant might have made out a case of this claim, which might have re quired the consideration of the witness's superiors. The witness certainly did not know that the defen dant was charging commission upon goods furnished himself. , Upon his reexamination, he said he always consi- dered that, with the exception of the defendant's right of suppliance, the first agreement was to stand. A common seller would not have considered h:raself re sponsible for t'le conveyance of the goods ; and it was for this reason the mode of supplying the Barracks was originally changed. The defendant certainly was thus responsible as agent. The General then proved an account examined by the barrack office, containing a &large for commis sion, which, upon the faceof the witness's agreement, would have been payable. Upon his further cross-examination by the Arroa- NET GENERAL, the witness said that in the general account which the defendant signed, his particular eitarges of commission would not appear. • Upon his examination by Lord Eta.rsaonouotr, be said, that he did not know that the names of spu rious persons were inserted in the account, and had no idea that commission was charged upon sales made by the defendant in the names of such persons. John Bowering, book-beeper to the defendant's house in St. James's.square, said., he drew up the de fendant's first ac_couat with General Delancey after 1798, and, being at a loss' how to state the accounts, the defendant directed the witness to make ost the accounts in Watson's name. The defendant's prices of stores were lower than other persons, two and a half to three and a half per cent. The witness be lieved the barrack orders at this time could not have been executed, if the defendant had trusted to other people for stores. The witness recollected the con versation between the defendant and himself, in which he expressed doubts about the commission's being allowed after 1798. The defendant said— " Get the accounts back, and make the alteration ; for if I err, 1 would rather err on the right side."—. The witness applied almost immediately to Mr. Stan bank, accountant to the Barrack Master General ; but he refused to let him have back the accounts. The witness applied to him a second time, and told him for what he wanted them. He replied, " Let a credit be made in some future account current."— The defendant then said, " Let it be credited in the Barrack Master General's account." There was a supplemental account in which this credit was not made, wholly through an omission of forgetfulness on the witness's part. After this the bits were made out, " Alexander Davison, debtor to the Bedford street House ;" and no commission for these sales was charged in the subsequent accounts. Upon his cross-examination by Mr. GARROW, he said, he did not notify the refusal of the accountant to the Board by any memorial. Mr. Stanbank remembered Bowering's applica tions, but he did not say for what purpose he wanted the accounts. Lord Moira was called to character. He had known Mr. Davison for a great many years, but was not particularly acquainted with him till he applied to him to accompany the army which he commanded in the last war, as Commissary General. He had requested this of him as a favour, and his conduct was punctual and delicate, for he often sacrificed emo luments to which he was fairly entitled. He had no suspicion that he could be guilty of any fraud, for, if he had, he would not have appplied to him to accept of the office of the Treasurer of the Ordnadce, which was no object to him ; for, by accepting this, he lost his half pay as Commissary ; and the difference be tween the Lull pay of the Treasurer of the Ordnance, and the half pay of Commissary, was only 701. Sir Evan Nepean, Sir Andrew Hammond, Sir William Rule, the HonourableWellesley Pole, Right Honourable Charles Long, Mr. Huskisson, Mr. Hunter Mr. Cowley, Mr. Smart, Mr. Davidson, Mr. Black, Hunter, Gilpin, and Mr. Jordaine, gave evidence as to the defendant's character. Mr. ATTORNEY GENERAL replied at some length. He reconciled the evidence of General Delancey, by discovering that the General signed only the general account, as correct, which included all the particular accounts ; and by the general account it would not appear what was the commission on each particular : the person who inspected the abstract of accounts, thought the fictitious names were real, and so passed I them. Lord ELLENBOROUGII summed up the case very carefully. His Lordship made some pointed re marks upon the principal features of the case, and said it was admitted, that the vouchers were false, and that the charge for commission could not be al- lowed. How false vouchers could be used with an honest intention, could not be conceived, Honest ends seldom if ever require dishonest means. As to a pro. fesscd intention of rendering back the money in some subsequent account, if the fraud was once committed by the production of false vouchers, that would not be a defence, but still if there was an honest intentiott of repairing the error, that would strongly beat an appeal to the hearts of all men to induce them to suppose, that the original intention of producing the vouchers was not fraudulent. This, however, did not appear, for when the Defendant had a locus pani tenthe, and might have corrected the error with his recollection brought back to the subject, be did not eorrect the account. His corrections applied only to £15,479 for other errors. As to the defence upon the right to charge commission under a new agree. merit, he said he waited for the evidence with great anxiety, because it was not consistent with his own oath, in the answer to the 6th question, and if such an agreement had been proved, it would have been open to great suspicion of a collusion with General Delancey. The evidence of that Gentleman had, however, disproved that part of the case. After his Lordship had gone through the evidence, the Counsel for the Defendant took an objection to the information, that it stated that Mr. Davison was entitled only to commission upon the sum charged for the goods, instead of which he was to have a com mission on all charges of insurance, freight and other sums advanced. But his Lordship thought this im. material, as it was only necessary to state what was material to the fact charged, and as it was charged that he supplied goods to a certain amount, and re. ceived 329/. as commission upon the price of those goods, which was , true, it was immaterial whether In ELct he made other charges and had other commissions. He said he recollected a case of the name of Yate v. (Yate v. Willan, we believe, in East's Reports) in which that point was settled. The Jury, between seven and eight o'clock, pro. nounced a verdict of—.. Guilty. The trial lasted from nine o'clock in the morning • till nearly half after seven in the evening. [Tars over, cheer which Drfendant. This man, I t he Defendant, instea i ons to the Barrack an d Allen,two of 1 t. s e ery youl man, du s. sheappeenuce of the ; ( bele rods, and re • by the *instance of out, and Allen signe Watson and the defenc t• to add, Watson ne e defendant thus, while t with the idea that he I himself the defrau to keep up that m himself to endeavour a proud was at a loss a • s ee ap to this prosecuth dant contended that r• this practice ; and that 'hed these articles, G , y the same sums, for 6 perfOnS; but it was rOwned the defendan 6 ; for it was impossib s of others to pass thrx •▪ s ou The duty the d . _ pinp•And :dud. But the defenda ispedin 1802; anditwasn , this paying back. This, gassertion ; bu t the Lel ~ kin the defendant's own : , 1805, the defendant inioners of Military e he had furnished some no Commission was c t tbe Defendant did rent ch he openly stated, ca ord-street, and upon =mission. Should the D say, that he rendered I ng a Commission, w d ? If he should, thi 1805, the Military Commi dines charges faulty in se Defendant, finding an inv I