United Kingdom House of Lords Decisions

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Cite as: [1822] UKHL 1_Shaw_128

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SCOTTISH_HoL_JURY_COURT

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(1822) 1 Shaw 128

CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.

2 d Division.

No. 30.

James Glass and Others, for the Corporation of Hammermen of Leith, Appellants.—Gifford—Baird

v.

William Hunter, Respondent.—Lord Advocate Rae—Cullen

March 27. 1822.

Lord Pitmilly.

Subject_Local Militiaman —Stat. 54. Geo. III. c. 19. —

Held (affirming the judgment of the Court of Session,) that a corporal of the First or Highland Regiment of Local Militia for the county of the city of Edinburgh having volunteered his services, and served at Musselburgh in terms of the above statute, was entitled to the privileges of a freeman, without entering with the incorporation of the particular trade which he exercised.

By the 179th section of the 52. Geo. III. c. 68. it is enacted, that “every person having served in the local militia, when drawn out into actual service, being a married man, may set up and exercise any trade in any town or place within Great Britain, without any let, suit, or molestation of or from any person or persons whomsoever, for or by reason of using or exercising such trade, as freely, and with the same provisions, and under the same regulations, and with the like exception to the two Universities in England, as any mariner or soldier can or may do by virtue of an act passed in the 24th year of his present Majesty's reign.” In 1814, the “Legislature, by the 54th Geo. III. c. 9, and on the preamble that it is highly expedient, in the present circumstances, that his Majesty should be enabled to make the most effectual use of the disposable military forces in his realms in aid of the

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efforts now making upon the continent of Europe; and for that purpose should be empowered to accept the services of such parts of the local militia of Great Britain as may make voluntary offers, duly certified by the respective commanding officers, of serving under the act, out of the counties within which they shall be enrolled, and as his Majesty may think proper to permit, so to, extend their service in consequence of such voluntary offers as aforesaid,” enacted, “That it shall be lawful for his Majesty, by any order signed by the Principal Secretary of State, directed to the commanding officer of any regiment, battalion, or corps of the said local militia foresaid of Great Britain, to propose to such regiment, battalion, or corps, or any part or parts thereof, so to extend their services, under such rules and regulations, and upon such allowances, as his Majesty may think fit to make and appoint in that behalf, subject nevertheless to the restrictions contained in this act; and it shall be lawful for his Majesty to call out and employ from time to time any such parts or proportions of any local militia so volunteering as aforesaid, at such times and in such manner as he shall think fit, out of their counties, for any period not exceeding such as are allowed by this act.” It was further declared, that this period of “extended service” should not exceed 42 days in any one year, and “that all the rules, regulations, provisos, powers, authorities, penalties, forfeitures, clauses, matters and things in the said acts respectively contained as to the local militia, when embodied for service in case of invasion, shall extend and be construed to extend to the local militia when serving under any such voluntary offers under this act, out of the counties within which they are enrolled.”

In consequence of this act, a proposal was made to the first or Highland regiment of Edinburgh local militia to volunteer in terms of it, and accordingly they agreed to do so. The respondent Reid was at that time a corporal in the regiment, and he, along with the other officers and soldiers, duly subscribed an obligation to subject themselves to the enactments of the statute. Immediately thereafter a precept was issued by the Lieutenancy of the county of the city of Edinburgh, requiring the regiment to assemble at Edinburgh, with the view of being called out for service, under the 54th of his present Majesty, chap. 19. Previous, however, to the assembling of the regiment, official orders were given to the commander that the regiment was to muster at Musselburgh and Fisherrow, and he was desired immediately thereafter to report himself to the General of the district. These orders were obeyed, and the regiment did duty at these

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respective places (in the neighbourhood of which there was an extensive depôt of French prisoners) for 42 days, the men receiving the marching guinea, and being otherwise put on the same footing as the regular. militia. Reid served during that period as a corporal, and received a certificate from the proper officer to that effect, and that he had been called out under the provisions of 54th Geo. III. Having thereafter commenced trade as a blacksmith in South Leith, without entering with the Incorporation of Hammermen, Glass and others, as office-bearers, presented a petition to the Bailies of Leith, praying for interdict, damages, and fine. Decree in absence was pronounced; and a charge having been given to Reid, he brought a suspension, on the ground that he was entitled, by virtue of the above statute, and by having been on actual service, to the privileges of a freeman. Lord Pitmilly suspended the letters simpliciter; and the Court, on the 19th of November 1818, adhered to his interlocutor. ^* Glass and others then appealed to the House of Lords, and contended that Reid was not entitled to the privileges claimed by him, because the regiment had not been marched out of its county, seeing that it had done duty at Musselburgh, situated in the county of Mid Lothian; and, 2. Because the service was not of that nature for which the benefits and privileges were intended to be conferred, there having been merely an extension of the time for the ordinary annual training, and not that actual service which was contemplated by the Legislature. To this it was answered, 1. That in relation to the militia, the city of Edinburgh is a separate county from that of Mid Lothian, and has accordingly a separate lieutenancy; that Musselburgh is not within the bounds of the county of the city of Edinburgh, but is under a different lieutenancy, and therefore the regiment must be considered as having served out of the county within which it was enrolled; 2. That the regiment was called out for service in terms of and under the provisions of the 54th Geo. III., and that the respondent performed the service required by that statute; and, 3. That having done so, he was entitled to the privileges thereby bestowed. The House of Lords “Ordered and adjudged that the interlocutors complained of be affirmed, with £100 costs.”

Counsel: Respondent's Authority.—Kirkwood, Jan. 19.1811, (F. C.)

Solicitors: Spottiswoode and Robertson,— J. Richardson,—Solicitors.

(Ap. Ca. No. 13.)

_________________ Footnote _________________

* Not reported.

1822