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spondent Dormer.—And this report, the Lords Justices afterwards approved of and confirmed.

In consequence of this proceeding, the warrant for the off-reckonings was stopped; and the respondent Macgwire threatening to sue the appellant upon his contract, he, in Trinity term 1716, filed a bill in the Court of Exchequer in Ireland, against all the respondents; praying, that Macgwire might deliver the rest of the clothing, that thereupon the warrant might be delivered to him, and that, in the mean time, he might be enjoined from proceeding against the appellant at law.

[155] The respondent Dormer, by his answer to this bill, admitted, that his commission as Colonel of the said regiment, bore date the 7th of March 1715, and denied that he pretended any right to the command of the said regiment till the date of his commission, or to receive any pay, as Colonel thereof, till that time; but insisted, that the appellant having in the mouth of August preceding, received a letter from the Lord Lieutenant, signifying his Majesty's pleasure, that the respondent should have the said regiment, and the respondent having kissed his Majesty's hand as Colonel thereof, the appellant had therefore no right to make the said contract.

On the 10th of February 1718, the cause was heard, when the Court thought fit to dismiss the appellant's bill with costs.

But from this decree he appealed, insisting (C. Phipps, S. Mead), that he was, to all intents and purposes, Colonel of the regiment at the time of the contract, and for many months after; and until he was superseded by the respondent Dormer's commission; which was not till the 7th of March 1715. That before that time, the appellant was neither superseded nor suspended, nor had the respondent purchased of him the said regiment before, but all orders relative to the regiment, were till that time directed to the appellant as Colonel, and particularly the order to provide the clothing; which, according to the rules of the army, he was bound to obey, under severe penalties; and in case the regiment had, in the mean time, been ordered upon any service, no person but himself could have acted as Colonel thereof. That accordingly, the King himself had, after the time of the contract, stiled the appellant Colonel of the regiment, by a commission dated the 13th of January 1716, granted to an officer as Captain in Colonel Harrison's regiment. That the respondent Dormer was not entitled to any pay, nor had any command of the regiment, until the date of his commission; but the appellant's pay and command thereof actually continued, and he also, till that time, continued on the muster-roll; and by the known laws of the army, the meanest soldier has every thing belonging to him, so long as he remains on that roll.

On the other side it was contended (W. Thompson, R. Raymond), that the appellant had notice of his removal from the command of his regiment, by the Lord Lieutenant's letter, above three months before he proceeded to make a contract for clothing the same. That such pretended contract, even if the appellant had been the proper person to make it, was contrary to the rules of the army, being for above ten months; and also contrary to justice, in subjecting the regiment to a debt of about £218 5s. 2d. on the growing off-reckonings thereof. That if the appellant had a power in him to contract for the clothing, (which it was humbly presumed he had not,) Macgwire was the person entitled to the off-reckonings, the same having been assigned to him by the appellant; but as Macgwire was not plaintiff in the suit, nor demanded any decree in a proper manner, the appellant's bill was very justly dismissed. Besides, there could be no pretence for any decree in his favour, [156] because the board of General Officers, who are proper judges of the rules and methods of the army, and to whom this matter was referred by the Lords Justices, had reported in favour of the respondent; and because their Lordships had approved and confirmed the same, and ordered a warrant for the payment of the off-reckonings to the persons with whom the respondent had contracted for clothing, which they had refused to grant to the appellant.

After hearing counsel on this appeal, it was ordered and adjudged, that the decree of dismission therein complained of, should be reversed: And it was adjudged and declared, that the off-reckonings assigned by the appellant to the respondent Macgwire, were and ought to be liable to satisfy and make good the con-