Page:The English Reports v1 1900.pdf/497

respondent, his heirs and assigns, and his and their tenants, should enjoy their right of common of and in the said Great or Lower Common, and elsewhere within the said manor, as if the said release of the 24th of May 1685, had never been executed by the respondent's said father. (Jour. vol. 21. p. 212.)

In 1708, Queen Anne appointed the appellant Colonel of a regiment of foot; and King George I. by a commission, dated the 1st of June 1715, continued the appellant Colonel of the same regiment.

[154] The regiment being in Ireland, when the rebellion broke out in Scotland in the year 1715, orders were given out for augmenting each regiment with 140 men; and the appellant having completed this augmentation for his own regiment, orders were given by Lord Tyrawley, the General, for its being immediately clothed, that it might be ready and fit for service.

Accordingly, the appellant, on the 8th of December 1715, contracted with the respondent Macgwire, for the clothing of his regiment; and the off-reckonings being, by the custom of the army in that kingdom, to be applied for the payment of the clothing, the appellant was, by the terms of his contract, to procure the Government's warrant to be delivered to the clothier for these off-reckonings, which amounted to £1732 15s. 1d. and an assignment thereof was made accordingly.

The patterns for the clothing were approved of and sealed by the General, who signed such his approbation upon the contract; and the Deputy Vice-Treasurer also certified, that the sum therein mentioned was necessary to answer such contract.

The clothing was accordingly prepared, great part of it actually delivered to the Commanding Officer, and the residue ready to be delivered; but, on the 7th of March 1715, about twenty-four days before the time appointed for the delivery of such residue, the respondent Dormer having purchased the appellant's regiment for £4000, obtained the King's commission of that date, appointing him Colonel thereof, in the room of the appellant.

Some months prior to the date of the contract, viz. in August 1715, the King's approbation of the respondent Dormer's succeeding to the command of this regiment, was notified to the appellant, by a letter from the then Lord Lieutenant of Ireland; and hence it became a question, whether the appellant, after such notice, had a right to contract for the clothing of his regiment, or to do any other act as Colonel thereof?

The respondent Dormer therefore applied, by memorial, to the Lords Justices, touching his right to make the contract; and their Lordships having referred it to the determination of a board of General Officers, they, on the 29th of September 1716, reported, that the appellant had no right to act as Colonel, from the date of the letter sent him by the Lord Lieutenant; but that the command of the regiment, and the power to contract for its clothing, was from that time entirely in the re-