New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-12-06
III y NTELLIGEIyCE.
sUPRsHg COCRT-GFNEsAL TsRI-pEo. ia ,sr-
Jrcer- DAVIES. SUTHERLAND aid HOGEsooN.
Ifk BRITISH TNFrIILFrFNr Ctsr.

m D ' ) J = n
0.5er + sIrsst 1einaly granted BY Justice Iogra
- H.. ia..-rc- r was granted t..e iJin u
- L.. a, ,le,,r Of cynmercing ths acti-r.
siruiareou.ly With TIE O. eng OF the snainou', sni
was founded aY.n an afiicaS. u VI Pia"'.h attor
r.y f tie fact eLtiuy the 2. lniih thereto mo-
fr D. vaca;e the crr Of arrest IS made before NJ.
Justice L. eralam, based upon tie sipPo'ei Mshs-
cierty Of The aihlavi before referred u" "--a no
ton was denied, with liberty 70 r'new tie same, &c
sfidgys ou the part 81 81 ieldant. lAe descE
avsiled himself q tGs privilege aud renewed me nc
toI "a discharge the oder Of arrest before hr jus
tee Dawes upon his affidavit aud the papers before
used, ard q same We met by concter arl aiatHnal
sfitsvits or the part Il the plaintiff The case pre-
seu,ed snhs,s .ly the following facts The ceirnt-
at vas, or and puoT 20 tie .tth day II May, l>S,
ier Britannia Maj,siys principal Military Store
keeper q: Weldon, Ecghrd, and, Gs such, was
charged with the dIsburstmeL ana payment 10 the
rtTsous entitled thereto Of various large sums Of
money from tine 10 time iutrIsiei u nm Tor tait
purpOse ~ tie War Department, @! WLlcu tle plain
.f MAS Prncipa Secretary OF Stale, AMI as sucn
SecreteTy, having or claiming the care aad custody
Of tie property II that Department, aei the rsh, to
prosecute ia I!s own lame any acton or proceedings
IL or concerning tue same. portion a. The moneys
thus I'rGsed to tie defendant be fHied TO diSoure
tud pay over, according 10 Law, and app'o1rA'et
then to his own use uudlr pref use OF satisfying
dim which b. alleged he Lad against the Depart
nert for erNtrs u psy, fees AT perquste', ana
which le claimed 20 ave i gal night thus 10 SATISFY
On the contrary, the plHiuth claimed tli ttuS
smouutej 40 elbezZeneut Gad fraudulent misaP-
picstion If those funds by the defendant as p1ohc
officer AID fraudulent conversion u the same t. hs
own use. Tie defendant, having left or abscontei
from England about the @,th Of May, 1879, snl come
e. this country psper supposed IN these proceedings
b he rrit u e.cht was led out by ler Majesty u
tie Court ct Exchequer, directed 70 certain C0mns.
soners therein rGned, Ia u'bre, through Jury ana
witnesses, whether the defendant was ltdcOted 10
leT Majtrty .or any suns received by him as such
MILITARY solekrcper for her Majesty use aud not pad
over erd i 30, % what SONS end Only to take an IN
Cuis.ti,n and return TIE to the C0ur. If tx
ch,quer b. tie same Court the Saerif If NJ dies9x
nas commanded Go summon the uTy for such purpose.
this writ the return OF the Commissioners and the
linguistic are annexed. By the Latter il Is found that
the q. f,ndsut james Sutton Elliott late If Ncedon,
II the County Of Northampton, principal itary
S.orcktcIcr in The VIZ Department IN the said Com
mission also Iamcd i on the day Of taking this inqli-
,toD justly ari Truly iudebt d to her Majesty IN the
sum of f2,-'3 3D., fr morty received by the sad
James Sutton ctt for her Majestys use, and which
be, The Fri James Sutton Elliott should have appro.
lrDtsd in payment Of various sums due on ter II yes
Tvs account but viii n the said James sutton Elicit
had regecedto do" These last facts to the atore
sad Comu ssor. the return sGd inqstiOn appear by
cX"u pll,d copy thereof under the seal OF tiio
Ceuit ol tSchequer, and said papers are described IA
suCn eXempiicnton a5 " crrtoin record remaining
among the remeulbrances If or Court OF EXcuequ1r
at Nss minister thst is 10 say, among the records Of
Trinity fern in the ;r'enty-irst year OF tae reign Of
Queen Victoria.
The Complaint in this action. which is verified on
tie 10th Of August SJS after setting out the title Of
the pleiiti ana he right 20 sue for the cause OF ac-
ton therein forth, alleges the appointment OF lie
defendant in October, 1870, as public officer III the
Wal Department, to wit, principal military storekcep-
81 in the said War Department az NeedOu, aod ms
continuance in said employment TIL about the 2jth of
MAY, 1855 when hc ab-conded tteIeirom; that Ge gas
~ such Sturckcyor Entrusted with divers property IT
sld Department, and especially with Divers large
sums Of money for payment to the persons entitled
thereto portion 81 which he negece soto payo ap-
ply aud 10, or before the 2Uth day OF May, lsJS,
slrtltt fftgf "a
neglect the duties Of bis said olce, enbezzle aud
miseppy aud convert to his, the said james Sutton
E.lous own use AID purposes, large gun OF mon =,
pant If such moneys inrufed 10 hlm ator sai, To
wit tie sum # e. ~ 3D., currency of the sald United
w om At Great Britain and Ireland, the same being
al tie yslue cf slU oiS Sc currency at the United
States Of America, fraud of the Dsrlrt nent sad
IL breach Of is cuties such public officer and frau
dulent AMI wroDguly nisconiucted himself and ab-
tond.d from the duties II his ihce without de charge
IL, reilom aud without applying or accounting ior sai
money!, and that he has never since applied Tue same
or accounted therefor.
The coul Ant then states that, on such embezzlc
melt and aoscondrg, wit of Xtent was culy issued,
and an iIqgstion also taken, under such extent,
in cue f.ru4 .. Jaw, whereby tie Ic'eudant was found
indebted substa,t4y set forth on said irqustion,
appeared by an eAempiitcatlon OF tie cad extent
and QUESTION under the great zeal OK the sall COurt
OF ENcnequer, which be cravcd save to re'er IL
tner sets forth hat the defendant has never repai,
aupG r aCtcoul ted for the said sum- but Is indebted
10 The plaintiff therefor, with interests from the th
day tf June 1879, The date OF the gld lnqst on, Abo
d.srds judgment for tat suiD, with the costs oi Tie
| acton.
The defendant details in lis AFFIDAVIT the crcum-
starces ind Which bee became entitled, he alleges,
70 the ees and perquste exceeding the amount OF the
plaintiff cain, ard which he applied IA SAT- iacton
theref ana csims the night 10 apply ia this acton,
as 4 sct.of cornter.caim thereto. Tie plaintih
tfdsyiis sufficiently -nbstantate the relation OF the
parties the deficit in the accounts and the ma.opro
piiation Of the moneys. The 0a.y question argued
non -
action for NOR ~ received or property embezhed or
iraudulcIty msepplied by d public officer IN tue
course OF bis employment as such, or by person
acting III educiery capacity or Tor msconi uet or
reglect in office, or whether the original cause OF
action, assuming i to have been SUCH US would have
IN tilted IN order of arrest hal been waived merged
CT il gushed by the proceedings taken in Log and
under the eTteIt and Il QUESTION.
&. A. Seward ard A. Oakey Hall for defeltGnt
j. r. Williams end II. Whitaker for plaintiff.
HoGEBooy, J.-The questiOn presented for the
ccrsder!on of the Court N hi. case whether the Dc
Slb5iy.5n of Src.ioa 7s u the Code Ta.t .ec,loa
thoTzs The ses. q psy IN action for money feelssd
,fcer ty r,rson fducisry capacity, for mi''
coudg orhes . IL cdes The S,e';,On ~. a4et ShSy
tie as, AID Therefore propose the gaes,.
vhsh. the efsncsD' o sc,s doce in England amounting 70
freud cis tgct towa arcs tlat Ouyerntlest csl %
rutlc ohcer giiiy q oic mig
coudlct, whsl.,E statute EIea u s oPsfsn o
cases # niroutlr occurring within - own fnu' q
s3s Government TIE precie question = D. d''
posed u Therefore ia wuet tie gal seen;' wheI Ls''
as'r Place Il ftsaig have esse1,l,J a.,,1.i =,
n seton sd dsPryed Il IL ons-l ch,r,e; ..
qualities. that IL peseH: ,lafs -. action can 40 i te o.
'sIt 20 De = Tn ~ I-yley Irce5'se % po' NJ, ,r
fsOtgeuIly EssPphed ~ ne feen1snt - D.
% sse taritg tn- !rssi choT4c" o. ne
which tie psl.ih rely rs recovery 10 'ne 2fui u
wihls n1 rely recovery rs;er h.u the caeseof'c-
tn Which be la pcsecutcd, Ars he ass =. ~
n1try ups the extsnr and ncai a. ana be cannot 2,
ia = N onsin OF ia seoi ag as the oaa o.