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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Pherson v Bakers of Glasgow [1834] CA 13_203 (16 December 1834) URL: http://www.bailii.org/scot/cases/ScotCS/1834/013SS0203.html Cite as: [1834] CA 13_203 |
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Page: 203↓
Subject_Exclusive Privilege—King's Freemen.—
Service within Britain, from January to October, 1804, in his Majesty's Canadian regiment of Fencible infantry, found not to entitle the son of the party to carry on trade as a baker within the royalty of Glasgow, without being free of the incorporation of bakers.
John M'Pherson enlisted at Inverness, in January, 1804, in “his Majesty's Canadian regiment of fencible infantry,” which was raised for service in British North America exclusively. He served till October of the same year, when he was discharged; but he had never been out of this country. It was said that the cause of the discharge was a mutinous disposition shown by a part of the regiment, but in this Macpherson had no concern. His son, James, having engaged in the trade of a baker in Glasgow, and refused to enter with the corporation of bakers, alleging that he was free to carry on the trade in respect of his father's service, the corporation obtained from the Magistrates of Glasgow an interdict prohibiting him from baking within the royalty. He offered a bill of suspension, which the Lord Ordinary (Moncreiff) passed. *
_________________ Footnote _________________
* “ Note.—It is perfectly clear that any claim which the complainer may have, does not depend on the 42 Geo. III., which, in all its provisions, is retrospective only to those persons who, previous to the date of it, had served, and been honourably discharged. It must depend on the 56 Geo. II, But the question whether this Canadian regiment was a fencible regiment within the meaning of that statute or not, is not quite so clear as the respondents assume it to be. If it was not, the circumstances under which the complainer's father was discharged, without having actually served abroad, do not appear to be material; but they are material in the question whether or not it was a fencible regiment; and if some of the men were punished for mutiny, in refusing to go to India, it makes much against the argument of the respondents. The Lord Ordinary thinks it right to give the complainer an opportunity of making out the case if he can. But he must depend on the 56 Geo. III.”
The letters being expede, the Lord Ordinary found “that the suspender's father was, during nine months in the year 1804, a soldier in the Canadian regiment of fencible infantry, and was honourably discharged; found it admitted that the said regiment was raised exclusively for service in British North America; found, that in these circumstances, the privileges regarding the exercise of trades attached to such service are regulated by the 3d section of the act 56 Geo. III. cap. 67; and, therefore, and in respect that the service of the suspender's father did not extend to the period required by the said section of the said act, repelled the reasons of suspension, and found the letters orderly proceeded, but found no expenses due to either party.”
The suspender reclaimed, and the Court “allowed him to lodge a minute of what he states, and is desirous of establishing, by a report from the War Office, as to the construction of the statute 56 Geo. III. relative to the situation and privileges granted to his Majesty's regiment of Canadian fencibles.”
The Court afterwards remitted the following Case and question for the consideration of the War Office.
“By the 1st section of the 56 Geo. III., cap. 67, entitled ‘An act to enable such officers, mariners, and soldiers as have been in the land or sea service, or in the marines, or in the militia, or any corps of fencible men since the 42d year of his present Majesty's reign, to exercise trades;’ it is enacted, ‘ That all such officers, mariners, soldiers, and marines as have been at any time employed in the service of his Majesty since the 22d day of June, 1802, and have not since deserted the said service, and also the wives and children of such officers, marines, soldiers, and mariners may set up and exercise such trades as they are apt and able for, in any city, town, or place within this kingdom, without any let, suit, or molestation of any person or persons whatsoever, for or by reason of the using of such trade.’
“And by the 3d section of the said statute it is further enacted, ‘That this act, and every part thereof, shall extend to all officers and soldiers who have personally served in the militia, or any of the fencible regiments, from the said 22d day of June, 1802, for the term of five years, and have been honourably discharged.’
“James M'Pherson is a lawful son of the now deceased John M'Pherson, who, in the month of January, 1804, enlisted at Inverness as a private soldier into ‘his Majesty's Canadian regiment of fencible infantry,’ and after serving in the said regiment in Scotland, honestly and faithfully, for nine months, was at the end of that period honourably discharged at Ayr, on the 3d of October, 1804.
“ Question.
“Whether, according to the construction of the above-recited statute of the 56 Geo. III., cap. 67, as understood and acted upon at the War Office, the said James M'Pherson is entitled to the privileges of trade
“ Or,
“Whether the said ‘Canadian regiment of fencible infantry’ was one of ‘the fencible regiments’ referred to in the third clause of the statute?”
The following report was returned from the War Office:—
“I am directed to acquaint you, that as James M'Pherson did not serve in the Canadian Fencibles the term prescribed by the 3d section of the act of the 56 Geo. III., c. 67, the Secretary at War is of opinion that M'Pherson's son is not entitled to the privileges as to trade which he now claims.”
On considering this report, their Lordships adhered to the judgment of the Lord Ordinary.
Solicitors: W. Mercer, W.S.—J. and T. Darling, W.S.—Agents.