HIS LORDSHIP, who tried the cause, then gave the 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

1769.

VERTUE

V.

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 martial upon him.

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

There were other actions brought against Lord Clive. In that which was brought by Captain Parker, the Court were of opinion. " that these officers had * not a * Vide ante, right to resign at all times" and under any circum- p. 2421. stances, whenever they pleased." They very rightly guarded against laying down the absolute proposition. The right to resign must depend upon the particular circumstances of each particular case. The question in Captain Parker's case is not the question in this case: Captain Parker was tried for mutiny in the service. All arises from the nature, of the service. There is no engagement or contract with the officers, for any particular limited time. The only question at this trial was "whether Mr. Vertue, the present plaintiff, was in his military capacity, at the time when he disobeyed: Colonel "Smith's orders and quitted the camp.'

When Lord, Clive was in India before, the officers had double batta. The company were dissatisfied with the continuation of double batta; and sent orders to India, against continuing it: But Mr. Vansittart 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 Chce put their peremptory order into peremptory execution. The officers under the des gree of field-officers, were dissatisfied at this reduction. The black troops (the Seapoys) were commanded by European officers. The Marattas 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 Smith, de 2475 j

VOL. IV.

2 M

siring liberty to resign at the end of their month. He issued a very severe resentment of their behaviour. Others, who 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 officers 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 his 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 Lieutenant. 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

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

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

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 "whatsoever."

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 have given sufficient notice, to prevent the advanced pay and his 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

trial.

the whole, there is no sufficient reason for a new

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 WILLES concurred; being of the same [2477 ] opinion with the other judges, "that this gentleman was an officer in the service, at the time when he quitted

"it."

Per CUR.' unanimously

RULE DISCHARGED

MARTIN and others, assignees of EDWARD ROBARTS, a bankrupt, v. THOMAS PEWTRESS and JOSIAH ROBARTS.

THIS

HIS was an action of trover brought by the assignees of a bankrupt, for large quantities of goods of the bankrupt, to the amount of £19,562. 17s. 8d.

The cause was tried before Lord MANSFIELD, by a special jury at Guildhall, at the sittings after the last Trinity Term: and a verdict was given for the plaintiffs,

for the above sum.

The defendants had obtained a rule to shew cause why, upon payment of costs, this verdict should not be set aside, and a new trial had..

Upon shewing cause now, Lord- MANSFIELD reported the evidence.

The defendants were bankers, and large éreditors of the bankrupt. Edward Robarts, the bankrupt, is the brother of the defendant Josiah Robarts.

The value of the goods for which this action is brought, got into the hands of the defendants in the following manner. Edward Robarts bought goods upon credit, from several tradesmen who did not suspect his circumstances. The defendants employed agents to buy these goods from the bankrupt. Particularly, one Nathaniel Sweet, who had been a bankrupt, and was then insolvent, bought, between March 1767 and June 1768, (when Edward Robarts became bankrupt,) to the amount of £7709 at prime cost for which, he gave his notes, payable at a future day. These notes were paid in to the defendants and Sweet sold the goods for the use of the defendants, and accounted with them for the profits, as their agents."

The defendants sent another man, one Moses Birch, to buy goods of the bankrupt, to the amount of £2163 15s. Id. prime cost; and furnished him with banknotes to that amount, to pay for them. He paid these notes to Edward Robarts the bankrupt; who changed 2478 them, at the Bank, for others; which he paid in to the defendants. Birch sold the goods, for the use of the defendants; and paid them the produce and in like manner, as to all the rest. The price, at prime cost, was furnished in paper, by the defendants, to the agent; received by Edward Robarts; and returned to the defendants; or notes given by the agent, which notes Edward Robarts paid in to the defendants and discounted with

them; and the goods were all sold for the benefit of the defendants; and the money accounted for, to them, by the nominal and apparent purchasers.

This was a gross fraud upon the creditors of the bankrupt; and a cheat, by covin and collusion between him and the defendants.

But I don't think it amounted to an act of bankruptcy; because there was no fraudulent deed or conveyance.

I left it to the jury, to consider "whether it was a fair "sale, as between the bankers and the bankrupt; or a "cheat, to defraud innocent persons from whom the "goods were bought."

This is an action of trover; in which the plaintiffs could not recover, unless the property was in the bankrupt. The jury have considered this as no sale, but a void transaction. Therefore it is void on both sides: and the bankrupt has his goods. But the defendants have no right to set off the debts, so as to have the benefit of their fraud.

The bankrupt never dealt for more than £8000 a year, till this transaction. Now, his dealings were.encreased to £28,000 in eighteen months. So that his debts, which were before only about £6000 were now encreased to £23,000.

The counsel for the plaintiffs (Mr. Thurlow, Mr. Serjeant Glynn, and Mr. Mansfield,) argued that this was as clear a fraud as could be: and therefore the defens dants ought not to have any advantage from it; much less, the whole effect of it. The possession which they obtained of these goods was tortious, criminal, and unlawful. Therefore they had no title to them: and this action lies; and no equity can be pretended against it. It was a conveyance of them without any valuable consideration it amounted to an act of bankruptcy. It was a combination to give an iniquitous and illegal priority to a particular creditor. The whole transaction was fraudulent and void. It must have been in contemplation of an approaching bankruptcy; and tended to induce a general belief that this bankrupt was engaged "in an extensive trade;" when, in fact, the goods were not sold at all, but sent in to one creditor, in preference to the rest; and to keep up the bankrupt's credit till that creditor should be paid. Edward Robarts actually became bankrupt in June 1768. The defendants came to the possession of the goods by tort the property remained in the bankrupt. The sale was merely colourable: it was

a void contract.

Therefore they have no right to set off the monies ad

1769.

MARTIN

V.

PEWTRESS,

[Ant. 2240)]

[ 2179 ]