Hull Packet & East Riding Times
Fri 25 Oct 1878

IMPORTANT VOLUNTEER
QUESTION
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THE RESIGNATION OF OFFICERS

On Tuesday, at the Hull Police Court, before Mr T H Travis, a case was heard which involved a rather important question with regard to the resignation of officers belonging to volunteer corps. John W Baxter, a lieutenant in the 12th battery of the 4th East York Artillery Volunteer Corps, was summoned for the non-payment of £4, a amount which, it was alleged, the corps had lost in consequence of his having sent in his resignation before the 31st inst [Oct], the end of the volunteer year.

Mr Thorpe prosecuted, and Mr J Hearfield appeared for the defendant.

Mr Thorpe said the proceedings were taken under the 27th section of the Volunteer Act, 1863. The £4 was an amount of capitation grant which would have been received from the Government in respect of the defendant if he had not sent in his resignation, and had remained on the muster roll of the corps. Defendant could not now be returned in the list of efficients, and the capitation grant was thereby lost.

Mr Thorpe, having referred to the sections in the Act bearing upon the case, quoted several of the rules of the corps, which he said had been approved of by the Secretary of State for War. One rule provided that if any member of the corps did not make himself efficient he should pay the sum of 30s [£1.50] and be liable to dismissal. Rule 27 was as follows; – "Any commissioned officer not having qualified himself to earn the ordinary and additional capitation allowances for the year, shall pay the sum of 50s [£2.50] in addition to his annual subscription".

Lieut-Colonel Humphrey was then sworn, and stated that the defendant was a lieutenant in the 4th East York Artillery Corps. He tendered his resignation to him on the 14th September. Application had been made to the defendant for the amount of the capitation grant, but the money had not been paid.

Cross-examined by Mr Hearfield: I believe there has been some dissatisfaction in your regiment for some time past? – No.

Mr Hearfield: Did you not recently appoint a new man over the heads of your old officers? – I don't think I should answer this question. The question is whether Mr Baxter is liable or not.

Mr Hearfield said he was going to show the reason the defendant resigned.

Mr Travis said it did not matter what reason was given. He should take no notice of that.

Mr Hearfield then continued his cross-examination: I think on the resignation of a member of the corps there are certain fines and fees payable? – Yes.

Mr Hearfield: Now, you received the resignation of Lieutenant Baxter? – Yes.

Mr Hearfield: Are you acquainted with the whole of the rules of your corps? – Yes, I believe so.

Mr Hearfield: Is there not another rule besides the one that has been quoted which refers to the resignation of members? Rule 28 says: "If any member of the corps shall resign and receive his discharge from the corps from the 1st January to the 31st October (both inclusive) in any year, unless by special permission of the commanding officer, which will only be granted under special circumstances, he shall pay such sum as the corps would have become entitled to had he remained in the corps till the 1st November, and rendered himself efficient". Do you know that? – Yes.

Mr Hearfield: Have you given any "special permission" to Lieut Baxter to resign? – No; he has it in his own right.

Mr Hearfield: Lieutenant Baxter was a commissioned officer? – Yes.

Mr Hearfield: Holding a commission in your regiment? – Yes.

Mr Hearfield: He cannot be appointed by you or discharged by you? – Yes.

Mr Hearfield: You claim the right of discharging him? – Yes.

Witness immediately withdrew this answer, and said he had made a mistake. He had no such power himself.

Mr Hearfield: Have you discharged him? – I have not; I have had no intention of doing so.

Mr Hearfield: Did you write this letter: – Park Street Barracks, Hull, Sept 24th, 1878 – Sir, I have your note of this date, forwarding me the resignation of your commission in this brigade. At the same time I must remind you, according to regulations, that I must ask you to take steps at once to liquidate any claims which the Quarter-master and paymaster may have against you, before I can be in a position to comply with your request by forwarding your resignation to the Secretary of State for War"? – Just so.

Mr Hearfield: This gentleman is holding a commission and is still a member of the corps? – Yes.

Mr Travis: He has sent in his resignation and is still a member of the corps! How is that?

Witness: Yes, until his resignation appears in the London Gazette he is still a member of this corps.

Mr Hearfield: There is another rule to the effect that members can only resign in November and December? – Yes.

Mr Hearfield: Then the resignation, in fact, goes for nothing? – Certainly not.

Mr Thorpe explained that what Mr Hearfield had referred to was only a "foot-note", and was not one of the rules of the corps.

Mr Hearfield: If the defendant had been a member of the corps on the 31st of this month [Oct] would he have received the capitation grant? – Certainly, if a member of the corps on that day, and if he was certified as "efficient" by the adjutant and myself.

Mr Hearfield: And all other monies due to the corps have been paid by this gentleman? – Just so.

Mr Hearfield: You have summoned him because you apprehend that he will not be a member on the 31st of this month? – We have summoned him because we shall not get the capitation grant. He must appear on the muster roll to earn the grant.

Mr Hearfield: Have you had other officers resign belonging to the regiment? – I don't think you have anything to do with that.

Mr Hearfield: But have you? – Yes.

Mr Hearfield: You have not summoned any of them? – No; this is taken as a test case.

Mr Hearfield: Have you had other officers resign since the formation of the regiment? –Yes.

Mr Hearfield: Did Mr Mason resign? – Yes.

Mr Hearfield: Did you summon him? – No; he was very ill; he broke a blood vessel.

Mr Hearfield: Did he pay? – No.

Mr Hearfield: Have any officers resigned and paid before? – Yes.

Mr Hearfield: Can you give any officer's name? – Yes I can – Winship.

Mr Hearfield: When was that? – He paid under an order from this court.

Mr Hearfield: Rule 27 has been quoted in support of this case. Now was not rule 28 framed to meet a case of this sort and not rule 27? – I did not frame the rules. There is the rule.

In reply to Mr Thorpe as to the way in which the capitation grant was recovered, witness said that the list of members on the roll had to be certified as efficient by the adjutant and countersigned by himself.

Mr Thorpe: Then you have no right to keep a man on the muster roll after he has resigned? – No; I should commit a fraud upon the Government if I did.

Mr Thorpe: The defendant has resigned, and his name has no right to appear on the muster roll.

Mr Travis: You want your money because he has ceased to belong to the corps – because he has done a certain thing which prevents his name from being put [kept] on the muster roll?

Mr Thorpe: That is so.

Mr Hearfield argued that there was nothing due from the defendant, as he had paid all fines and fees. With regard to the sum of £4, it was not a question of inability to pay it; he said he was not entitled [obliged] to pay it. His contention was that at the present time the defendant still remained a member of the corps, and that the summons was issued, not because the money was due from him, but because it was anticipated that after this month he would not obtain the capitation grant.

His contention was, further, that rule 27 did not bear upon the case. The defendant held a commission from Her Majesty, and all that a commanding officer could do was to forward his resignation to the proper quarter, and see it it was accepted. His resignation had not yet been accepted, and under the 28th rule he still remained a member of the corps. He still held Her Majesty's commission, and might [still] be a member on the 31st of this month [Oct]. As a fact, he must remain in the corps.

Mr Thorpe: "Remained in the corps and rendered himself efficient", which he has not done.

Mr Hearfield: Suppose the resignation is not accepted. If it is accepted it will appear in the Gazette. My contention is, therefore, that until his contention is accepted he still remains on the books of the corps.

Mr Travis: I understand from the evidence of Colonel Humphrey that he is not discharged.

Mr Thorpe: He has been struck off the muster roll.

Mr Hearfield said that the rules were made in a very careless manner, and the 27th was now strained to apply to officers when it really only applied to ordinary members of the corps. It was framed for volunteers and not for officers.

Mr Thorpe: That is not so. The rules are approved of by the Secretary of State for War.

Mr Travis: Then there is another rule which says that members can only resign in November and December.

Mr Thorpe: That is only a "footnote" to call attention to this.

Mr Hearfield: Either it does or it does not apply to the officers.

Mr Travis said that if it had been the first of November then he would certainly [not?] have made an order. It seemed that the defendant was not absolutely discharged.

Mr Thorpe: The fact of his having resigned is sufficient.

Mr Travis: Might he, if he chose, withdraw his resignation?

Mr Thorpe: He has the power. Has the resignation gone up yet?

Colonel Humphrey: No.

Mr Travis said it might fairly be contended that it was anticipating events by summoning the defendant.

Mr Thorpe: It may be premature.

Mr Travis: My impression is that you are perfectly right in demanding this money; but the only question is whether I can award it to the satisfaction of all parties.

After some further argument, his Worship said he would make an order upon the defendant to pay £4, but it was not to take effect until the first of November. His Worship ultimately decided, however, to respite judgment until the 1st of November, and remarked that he supposed Mr Baxter was only the first of the "herd".

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We understand that Lieutenant Baxter disputes the right of Colonel Humphrey to take his name off the muster-roll of the corps before the resignation had been gazetted.