James Turnbull and Malcolm Macdonald, v. Sir George Home, Baronet
Date: 26 June 1793 Case No. No 13.
A person bred to the sea, who afterwards binds himself apprentice to a trade, may either be impressed or enter voluntarily into the service of the Royal Navy.
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Alexander M'Kenzie, originally a seaman, in December 1789, bound himself, as apprentice for four years and a half, to James and Alexander Rannie, slaters and glaziers in Edinburgh.
In 1791, he, on account of some disagreement with them, left their service, upon which they obtained a warrant from the Justices of the Peace, to imprison him, till he should find caution to fulfil his indenture.
In a suspension, which is still in dependence, James Turnbull and Malcolm Macdonald were his cautioners.
In spring 1793, Mackenzie entered into the Navy, as a volunteer, with Sir George Home, then regulating captain at Edinburgh; against whom Turnbull and Macdonald brought a suspension and interdict.
For Sir George Home it was
Pleaded: An engagement to serve in the Navy supersedes all former engagements, whatever claim there may thence arise against the party himself for damages. There is no authority for distinguishing the case of an apprentice from that of a person under any other engagement. If there had, the enactments of 2d and 3d of Anne, c. 6. § 4, 15. and 17. and 4th Anne, c. 19. § 17. exempting, persons bound apprentices to the sea from being impressed, in certain cases, would have been unnecessary; and there is no reason why an apprentice to a trade at land should be in a better situation.
Answered: The contract of indenture is, from its utility, peculiarly deserving of protection: It gives the master a real right in the person of his apprentice. Hence it has always been understood, that an apprentice cannot be impressed, and still less enter voluntarily into the service of the public.
The acts of Queen Anne have no connection with the present subject. It may be true, that where a sailor has regularly entered, his former engagements are at an end; but the question here is, whether Mackenzie was capable of entering?
The Lord Ordinary reported the cause on informations.
Observed on the Bench: A person bred to the sea, who afterwards binds himself apprentice to a trade, may be impressed, and consequently may enter voluntarily into the navy. If every seaman could, by entering into an indenture at land, save himself from being impressed, there would be an end to the impress service. This point was deliberately determined on the 28th July 1778, Chalmers against Napier, No 11. p. 574. when it was fixed, that the only exception is in the case of a person bound apprentice to Sea for three years, who has not formerly followed that employment; an exemption introduced by 13th Geo. II. c. 17.
The Court unanimously repelled the reasons of suspension, and recalled the interdict.
Lord Reporter, Swinton.For the Suspenders, D. Williamson.Alt. Maconochie.Clerk, Sinclair.
Fol. Dic. v. 3. p. 32. Fac. Col. No 67. p. 144.
