Incorporation of Flehers of Dundee, v. Robert Woodcock
Date: 24 February 1808 Case No. No 20.
The son of a “Recruit,” who has served “honestly and faithfully for the space of four months, but being unfit for service is rejected,” is entitled to the benefit of the Act 24th Geo. III. C. 6.
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William Woodcock, quitted the army with the following discharge:
“By Major John Ross commanding the thirty-first regiment of foot, whereof Sir Adol. Oughton, K. B. is Colonel, These are to certify, that the bearer hereof, William Woodcock, recruit in the regiment aforesaid, has served honestly and faithfully for the space of four months, but being unfit for the service is rejected, and is hereby discharged, having first recieved a full and true account of all his clothing, pay, arrears of pay, and all demands whatsoever, from the time of his enlisting to this present day of his discharge, asfurther appears by his reciept on the other side hereof. Given under my hand and seal of the regiment, this thirteenth day of July one thousand seven hundred and seventy-four.
(Signed) “Jo. Ross, Major.”
On the tack of the discharge there is the following docquet:
“I William Woodcock do acknowledge, That I have recieved all my cloathing, pay, arrears of pay, and all demands whatsoever, from the time of my enlisting in the regiment and company mentioned in the other side, to this present day of my discharge; as also days pay to carry me to
As witness my hand, this thirteenth day of July one thousand seven hundred and seventy-four.
(Signed) “William Woodcock.”
Robert Woodcock, the son of William, having carried on business as a flesher in Dundee, the incorporation of that craft complained to the Magistrates, who (9th sept. 1806,) assoilzied the defender with expenses. The pursuers then advocated the cause to the Court of Session, and Lord Armadale, in respect no answers had been lodged, remitted with instructions to alter; and the Magistrates altered their interloculator accordingly. The defender then pursued an advocation, which was discussed before Lord Polkemmet, who advocated the cause, and asoilzied the defender with expences.
The pursuers claimed to the Court.
Argument for pursuer.—The defender being a recruit, and having been rejected as unfit for service, is neither within the words nor intendment of the statute. From the words of the statute, 24th Geo. III. C. 6. and of all the other statutes on the subject, it is clear that the benefits therein contained are intended for those who have actually served as soldiers. The object of the legislature is further evinced from the periods at which the different statutes were passed. The successive statutes were passed at the termination of different wars, when, on the reduction of the army, a great number of men were returned to the occupations of civil life, and when, from motives of policy, it became necessary to facilitate their identification with the general mass of the people. These privileges were likewise designed as a fair and just reward to those whose lives had been dedicated to the service of their country, and who had thus been prevented in early life from obtaining, by regular apprenticeships in common form, the privileges of the incorporations. The first statute on the subject is that passed in Charles II's. reign, immediately after the Restoration, 12 Ch. II. C. 16.; the second, is the 10th and 11th William III. C. 11. passed in the year 1697, after the treaty of Ryswick; the third, is the 12th Queen Anne, C. 13. passed after the treaty of Utrecht; the fourth, is the 22d Geo. II. C. 44. passed after the treaty of Aix-la-Chapelle; the fifth, is the 3d Geo. III. G. 8. passed shortly after the treaty of peace in 1762; and the sixth, and last act on which the defender claims, passed after the treaty of peace with America. All these being enacted at particular emergencies, tend to shew the purpose of the legislature.
Such being the design of the legislature, the defender is not entitled to the benefit of the act, because the defender's father never properly belonged to the service, and was only a recruit, and not a soldier, in the sense of the statute. So far from having served, he is declared to have been rejected as unfit for service.
Argument for defender.—In military language, a recruit is as much a soldier as the most experienced veteran, and four months service is as effectual to secure the benefits of the statute as any longer period. The term recruit, designates those who have been inspected by the surgeon and passed, who have received the bounty, have been put on the muster roll of the regiment, and have been entered in the periodical return of its strength by the commanding officer,—accordingly “Recruits” form one of the heads of these returns. If a man, who offers himself for enlistment, on being inspected by the surgeon, is reported unfit for service, he receives no certificate or discharge at all, and is not considered technically to be a recruit. A recruit, on the other hand, is the designation of a person who has been admitted as a soldier into the battalion, whose name is on the muster and pay lists, but who has not been posted into any particular company, nor appointed to any appropriate station in the regiment.
From causes into which it is now too late to inquire, the defender's father had become unfit for service before having been attached to any particular company, but had been under military discipline, training, and duty, for four months.
The Court, after having advised with military gentlemen, adhered to the interlocutor of the Lord Ordinary, 20th Feb. 1808.
Lord Ordinary, Polkemmet.Act. J A. Murray.Alt F. Jeffrey,Gee. Andrew and Pat. Orr, W. S. Agents.M. Clerk
Fac. Coll. No. 33. p. 115.
