A master, claiming an apprentice, bound to serve at sea, from an impress officer, found entitled to no damages, not haying produced evidence that the apprentice had not been at sea, before the date of the indenture. It was debated but not determined whether a protection was necessary or not.
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Alexander Gregory, an indented apprentice to serve at sea, was, on 29th December 1777, pressed out of a boat in the Frith of Forth, and carried on board a tender in the Frith. James Chalmers, Gregory's matter, applied next day to Captain Napier, regulating captain of the impress service, to obtain his release, offering to show him the indentures. Captain Napier, without looking at the indentures, refused positively to release the apprentice.
Mr Chalmers brought an action, by petition, in the Court of Admiralty, for liberation of the apprentice; and, in the mean time, prayed for an interdict to prohibit Captain Napier from carrying off the said apprentice. Captain Napier pleaded in his answers, that Gregory, having no protection from the Admiralty, had no title to be exempted from the press.
The Judge-admiral pronounced this judgment, 5th January 1778:
“Stops all further proceedings in this cause, in order that, in the mean time, the petitioner may apply to the Lords Commissioners of the Admiralty for redress.”
Mr Chalmers presented a bill of advocation, and another of suspension; in both of which he craved an interdict to prohibit Captain Napier from sending the apprentice out of the country till the cause should be determined. The bill of advocation was intimated on the 7th January. The interdict craved in the bill of suspension was granted 10th January. But the tender, with the apprentice on board had failed for a port in England on the preceding night. Mr Chalmers then brought an action of damages against Captain Napier.
Proceedings went on upon the bill of advocation, which was remitted to be advised by two Lords in the vacation; before whom Captain Napier was ordained to bring the person of Gregory upon the 15th April. The order was renewed to the 10th March, when Captain Napier produced a letter from the Secretary of the Admiralty, giving, as the reason why the orders of the Court had not been complied with, that Gregory had been sent abroad in his Majesty's service before the Board had an opportunity of giving the necessary directions for having him conveyed to Edinburgh.
The Lord Ordinary took the bill of advocation, and proceedings, to report; and, at the same time, the merits of the action of damages came to be advised.
Before proceeding to the merits, the Court determined two preliminary points, 1mo, Whether an advocation from the Court of Admiralty was competent in this case.
The defender insisted, That the question before the Admiral was strictly maritime; the cause of action having arisen at sea, and the seizing of Gregory, if illegal, being a maritime delict.
Answered for the pursuer: The fact on which the complaint proceeded is not of a maritime nature, being a violation of a common law indenture. It is therefore of no consequence that the apprentice was impressed to sea. But the ground of complaint was strictly on shore. For the complaint is not, that the apprentice was illegally apprehended, but that he was illegally detained after an application to liberate him. The Admiral, by his judgment, waves his own jurisdiction, and sends the pursuer to the Lords of the Admiralty, to whom he is not obliged to submit any rights which the law gives him.
The Court were of opinion, That the Admiral's jurisdiction was not privative in this case; and, on that ground, advocated the cause. In general, the Court thought, that the Admiral ought to have proceeded, especially on what was relative to the interdict; the object of which is disappointed in such a case, if the judge does not immediately take cognizance of the merits of the application for it.
2do, The Court took into their consideration, Whether there was any contempt of authority in this case? And, as no interdict was actually granted till after the apprentice was gone, the Court found, “That the defender had done nothing in contempt of the orders of the Court; and that, since the date of the order, he had done all he could to bring back the person of the apprentice.”
On the merits of the cause itself, and the action of damages,
Pleaded for the pursuer: That he is entitled to his damages arising from the illegal detention of his apprentice. The illegality of this detention is founded on the terms of the statute 13th Geo. II. c. 17. which enacts, “That every person, who having not before used the sea, binds himself apprentice to serve at sea, shall be exempted from being impressed for the space of three years from the time of his binding himself apprentice.” The exception here given is clogged with no condition.
The subsequent clause is in these words:
“And for the better securing to all the persons before mentioned, the benefit intended them by this act, be it further enacted, That the Lord High Admiral, &c. shall, upon due proof of the respective ages, or circumstances, (as the case shall happen) of any of the persons above mentioned, grant a protection to any such person, to secure him from being impressed for such time as, by the true meaning and intent of the act, such person is to be exempted.”
Although, by this clause of the act, the exempted persons are entitled to a protection, their right of exemption is not made to depend on their being possessed of such protection. It is not introduced as a condition under which the exemption is given; but for the better securing ‘of these persons,’ which supposes there was an exemption without it.
This apprentice, though he had no protection, fell within the description of an exempted person. The pursuer produced his indenture to Captain Napier, and in the process before the Admiral. In that process he likewise set forth, “That Gregory was his apprentice, and that he was never at sea until after the date of his indenture.” The pursuer's averments, therefore, were, in both respects, precisely what the statute requires. Had he refused to establish these by proper evidence, or failed in it, the detention of the apprentice would have been legal. But the defender did not put the cause of his detention on that issue. His plea was, that it was of no consequence whether he had the requisites to entitle him to a protection or not, as he was not possessed of it. The detention, therefore, of the apprentice was illegal; of consequence damages are due.
Answered for the defender: The protection is to be considered as indispensibly requisite to the exemption in the act 13th Geo. II. It is expressly given to ‘secure the exempted person’ from being impressed.
The interpretation of the act, which the pursuer contends for, would defeat the essential purpose of the impress service, which, if it is not executed with dispatch, ceases to answer its end. If the person entitled to the exemption has been so supinely negligent as not to get a protection, the impress service cannot be delayed by entering into processes and disputes, whether he had a title to get it or not.
Even supposing that a protection was not necessary, no action can lie for detention of this apprentice. For, although Mr Chalmers showed the indenture to the defender, he did not bring evidence of the apprentice not being formerly at sea, which is a necessary requisite, as much as the indenture, to the exemption.
The defender likewise pleaded an objection to the pursuer's title, that, from the terms of these statutes, it was not the meaning of the Legislature to give the benefit of them to any person but the apprentice himself.
In consequence of an order on the parties, an inquiry was made into the practice in England among the impress officers. Upon advising the cause, the Court were of opinion, That the pursuer having right to the service of the apprentice by the indenture, had a sufficient title to carry on this action. The Court gave no decisive judgment on the interpretation of the statute 13th Geo. II. Whether a protection is, or is not, a condition under which the exemption is given, and indispansibly requisite to give a right to the exemption? But they seemed to be of opinion. That, at any rate, if there was not a protection, evidence must be expressly, and immediately, offered, not only of the apprenticeship by the indenture, but, likewise, of the apprentice not having been at sea before the date of the indenture; and that the pursuer had failed in this particular. The judgment was, ‘find the defender not liable in damages to the pursuer.’ (See Jurisdiction—of the Court of Session—of the Admiral Court.)
Act. Crosbie, Erskine.Alt. Advocate, Solicitor, Ilay Campbell.
Fol. Dic. v. 3. p. 32. Fac. Col. No. 35. p. 59.
