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He likewise cited 2 Str. 999. Rex v. Robe: where the 1769. judgment was arrested, because the charge was so general, that it was impossible any man could prepare to defend DAYY himself upon that prosecution, or have the benefit of pleading it in bar to any other.

Lord MANSFIELD— This declaration is bad: and being [ 2472 ] upon a criminal charge, it ought to have been laid with certainty. The being after a verdict makes no difference. It may be taken advantage of, in arrest of judgment; it is not too late..

Mr. Justice Yates-- The declaration is clearly bad. It ought to have been laid with suficient certainty, so as to be pleadable in bar of another action. Criminal charges must be laid with certainty; and if they are not, exception may be taken, in arrest of judgment, after a verdict. The case of extortion, cited by Mr. Wallace, is in point.

Mr. Justice Aston and Mr. Justice WILLES were si: lent.


VERTUE ver. Lord Clive.

Tuesday 21st

Nov. 1769. THIS THIS was a case of the same kind with that of Captain Military offi

Parker against Lord Clive, in Easter Term last; re- cers in the ported ante, p. 2419. The difference between the two East India cases was only this. Captain Parker's turned upon

service, liable the

to the military general abstract question, “ whether a military officer in laws thereof. " the service of the East-India Company has a right to [See 6 Durn. “ resign his commission at all times and under any cir- 628.] “ cumstances, whenever he pleases :” the present case turned upon the particular circumstances under which Captain Vertue stood, at the time when he resigned his commission.

It came before the Court, upon a motion for a new trial in an action for an assault and false imprisonment in India ; in which, the jury had found for the defendant.

Mr. Dunning (Solicitor-General) argued on behalf of the plaintiff Mr. Vertue, for a new trial.

He denied that Mr. Vertue was in a military character, or in a capacity to commit a military offence, at the time when this military jurisdiction was exercised upon him by the defendant.

The commission which Mr. Vertue had received contained no engagement or obligation upon the Company, to keep him in their service a moment longer than they liked; nor upon him, to continue in their service longer

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1769. than he liked : either party were at their liberty to put VERTCE an end to the contract, under proper circumstances and

in a proper situation. And these were proper circumLD. CLIVE: stances, and a proper situation. The reduction of the ( 2473 ] batta, which had been allowed to the predecessors of

these officers, took away from them what induced them to enter into the company's service: and the enemy had been defeated, before the plaintiff resigned his commis. sion. The question depends, therefore, upon the actual circumstances the plaintiff was under at tlie time of his resignation.

Their common soldiers stipulate for five years certain. Their officers did not, at that time, stipulate for any limited time: and therefore, as the company could at any time turn off their oflicers, they on the other hand ought to be at liberty to quit at any time, under proper circumstance:.

The company were used to advance a month's pay. The officer could not, therefore, quit within that month. But at the end of it, he was just in the same case as the common soldier was at the end of his five years. Now Captain Vertue had not received, but on the contrary declined to receive the month's pay in advance : and therefore he could be under no engagement or obligation to continue in their service, upon that account:

If he had a right to resign, it is quite immaterial whether Colonel Smi!h accepted, or refused to accept his resignation.

And Captain Vertue acted by or for himself, upon his own grounds and reasons; not in concert or combination with any other person.

He quitted the camp upon the 8th of Muy; unconnected with any other person, and upon a recent personal affront. He was neither concerned in or even charged with being concerned in any combination with any other person whosoever.

At the time when he quitted the camp, he was not under the command of Colonel Smith : and therefore he could not be affected by Colonel Smith's forbidding him to quit it.

He was improperly brought before the military juris. diction.

Mr. Cor and Mr. Walker were on the same side ; but left it upon what Mr. Dunning had urged.

Mr. Thurlow was beginning to speak on the side of the defendant, and in support of the verdict : but he was stopt by Lord MANSFIELD, who told him it was unnecessary for him to proceed.


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His Lordship, who tried the cause, then gave the 1769. following account of the trial and evidence.

This is an action brought against Lord Clive, who approved the sentence of the court martial; but was not privy to any thing previous to the court martial, or to LD. clive. any thing done at it.

At the trial, the question was " whether Mr. Vertue 66

was an object of military law, at the time of holding " the court inartial upon him.

If he was not, every thing done at it, in relation to bim, was void ; and Lord Clive had no right to hold it

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upon him.

There were other actions brought against Lord Clire. In that which was brought by Captain Parker, the Court were of opinion. 6 that these oflicers had * not a

* Vide ante, right to resign at all tiines " and under any circum- p. 2421 “stances, whenever they pleased". They very rightly guarded against laying down the absolute proposition. The right to resign inust depend upon the particular circumstances of each particular case. The question in Captain Parker's case is bot the questiou in this case : Captain Parker was tried for mutiny in the service. All arises from the nature of the service. There is noengagement or contract with the oficers, for any particular limited time. The only question at this trial was “ whesther Mr. Vertue, the present plaintiff, was in his mili

tary capacity, at the time when he disobeyed Colone! Smith's orders and quitted the camp."

When Lord Clive was in Indiu before, the officers had double butta. The con.pany were dissatisfied with the continuation of double batta; and sent orders to India, against continuing it : But Mr. Vansitt art did not think it seasonable at that time, to reduce it. The company afterwards peremptorily ordered it to be reduced to a single batta. Lord. Clive put their peremptory order inio peremptory execution. The oficers under the des gree of field-officers, were dissatisfied at this reduction. The black troops (the Seapoys) were commanded by European officers. The Maraitas were then in motion : some said, they were only collecting their taxes; others supposed them to be dangerous. The company's troops were in three brigades. The officers of each brigade combined together, to throw up their commissions ; and all of them, above 200 in number, to resign at the same time. The plaintiff Mr. Vertue, a Lieutenant of Seapoys, was one of those who thus combined. Many of the subaltern officers, of whom the plaintiff was one, wrote letters, on the 6th of May, to Colonel Smithy de [ 2475 } Vou. IV.

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siring, liberty to resign at the end of their month. He issued a very severe resentment of their behaviour. Others, wbo desired leave to resign immediately, were ordered by Colonel Smith, to Calcutta : and be declared that the rest should have an answer before the end of the month.

If they were used ill by Colonel Smith, that would not justify them in resigning : they should have complained to the president and council.

Lieutenant Vertue was not affected by Colonel Smith's sending the subaltern oflicers who desired leave to resign immediately, to Calcutta. Yet, on the 7th of May, he went to Colonel Smith, and complained of the orders, and offered to resign. Colonel Smith refused to accept bis resignation ; and commanded him to stay in the camp, Vertue left his commission upon Colonel Smith's table ; and, the next morning, went away from the camp, in the sight of the commanding officers and of the men under arms. Whereupon, Colonel Smith ordered him to be arrested: and he was arrested accordingly; and after wards tried by a Court Martial, and ignominiously broken.

The question I left to the jury was, “ whether under " these circumstances, he had a right' to quit the camp, “ as being then out of his military capacity. There was no evidence that Colonel Smith had

any right to take the resignation of the subaltern officers : and he had refused to take it ; " saying “ that he would give an answer before the end of the month."

Lieutenant Vertue could not resign before the end of the month ; because the advanced month's pay had been paid to the agent of these troops, by the paymaster, upon the 28th of April, to be distributed amongst the officers as usual; and there was evidence that Mr. Vertue was mustered on the 1st of May: and on the 6th of May, he wrote a letter to Colonel Smith, signed as Lieutenant ; and again another, on the 7th, owning himself a Lieute. nant. Consequently, he was so, on the 8th in the morning:

But the great ground is the comBINATION amongst the officers, to throw up their commissions, in order to force the company into allowing them the double batta. The very measure shews that it was meant to terrify and intimidate the company into an allowance of it. And the danger of such a combination, and of all these officers quitting the service at once, is too obvious to be denied or doubted. There must, at the least, have been great danger of an insurrection amongst the Seapoys and common

[ 2476 ]

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soldiers, though there might not have been any from the 1769. Maratlas.

The jury was a special jury; and they brought in TERTUE their verdict for the defendant: and I think there is no ground for a new trial.

LD. CLIVE. Mr. Justice Yates-In Captain Parker's case, we were clear in the abstract opinion, “ that these officers “ can't resign at all times and under any circumstances, “ whenever they please."

As to their being bound for life, by their contract-I freely declare my opinion that they are not.

But though no particular period is fixed, and though they are not bound for life, it does not, however, follow “ that they are at liberty to quit under all circumstances


Here, Lieutenant Vertue was in the service and under his contract, at the time when he quitted. He had received the advanced pay; and was mustered on the 1st of May; and on the 6th demanded permission to resign; and actually quitted, on the 8th. He ought to liave given sufficient notice, to prevent the advanced pay

and being mustered. He signed himself “ Lieutenant," on the 6th; and acknowledged his being so, on the 7th.

This combination being a criminal act, it could not be a legal determination of the service.

Upon the whole, there is no sufficient reason for a new trial.

Mr. Justice Aston—The plaintiff's own letter shews " that he himself did not think he was at liberty to re“ sign, without permission from his superior officer.” And if every thing else that he claims was to be admitted to him, yet there is no pretence to say that he could be at liberty to resign before the expiration of the month for which the agent had received his advanced pay. He had acknowledged himself to be a Lieutenant upon the 6th, and also upon the 7th : and his letter imports his agreeing to continue so till the end of his month.

There is no reason for the Court's granting a new trial.

Mr. Justice Willis concurred; being of the same [ 2477 ] opinion with the other judges, “ that this gentleman was sian officer in the service, at the time when he quitted « it."

Per Cure' unanimously


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