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Ensign Lumsden having enlisted George Clark, John Wright claimed him as his apprentice, conform to indentures produced. The Justices of Peace declared Clark free from his Majesty's service, and that he belonged to John Wright his master: Whereupon Ensign Lumsden offered a bill of suspension, and pleaded, That there was no express statute prohibiting the enlisting of apprentices; that there was nothing in an indenture to give it a preference, in that particular, to every other contract. It is no more than a contract in writing; and yet it was never pretended, that any other contract, verbal or in writing, did afford the creditor in such contract a right to claim his party from his Majesty's service. It was never alleged, that an hired servant, if enlisted, could be claimed by his master; yet he is as much under contract as an apprentice; with this difference, that the term of his service is generally shorter. If one was bound, by charter-party, to perform a voyage, this would not give the merchant a right to claim such man from the service; for this good reason, That there is no exception or exemption of persons in the acts of mutiny and desertion. See act anno 12mo, Annœ Reginœ.
For the master it was urged, That, the question is here about the power a person has of enlisting himself voluntarily; the King's prerogative has no concern in that matter; it must depend on the power one has over himself; and none can be a volunteer, unless he is at his own disposal: and, therefore, to encourage such people to enter into the service, they are to, receive L. 4 Sterling as a premium, or enlisting money, by acts made in Queen Anne's time. And by none of the recruiting acts made in that reign, were they in force, as they are not, could George Clark be pressed into the service. It would seem absurd, therefore, that the will of him, who is not at his own disposal, but is a bound apprentice, should liberate him from his master's service.
The Lords refused the bill of suspension.
Fol. Dic. v. 2. p. 32. C. Home, No 200. p. 333.
*** The same found in a case, in which the parties were Stewart against Grant, 26th November 1778, not collected.
