not liable upon any covenant-Gilbert v. Fletcher (7). This being the case of a mere service, and not an apprenticeship, it might be determined at the will of the infant. Com. Dig. "Enfant," C, 2, contains various instances of contracts made by infants, which are void. Then the Justices have no summary jurisdiction, except where there is a valid contract.

Cur. adv. vult.

This day the judgment of the Court was delivered by

LORD DENMAN, C.J.-This was an action for false imprisonment. Lord Abinger nonsuited on the opening of the case by the plaintiff's counsel, from which it appeared that she, being an infant, complained of the defendant, a Justice of the Peace, for convicting her under 6 Geo. 3. c. 25. s. 3, for not performing her contract with a master to whom she had hired herself as a domestic servant. A new trial was moved for, and the rule granted, on the ground that to this class of servants the act did not apply; and secondly, supposing it to apply, the plaintiff's infancy was said to prevent her from entering into a contract of service.

The

We find it unnecessary to give any opinion on the question of infancy, because we are clearly of opinion, on the first objection, that the defendant had no jurisdiction. The 5th of Elizabeth is not only confined to certain classes of servants, but it expressly excludes domestic servants. eleventh negative qualification in sect. 4. is thus worded, "nor being lawfully retained in household, or in any office with any nobleman, gentleman, or others, according to the laws of this realm.' If any statute in pari materia had been designed to do away this limitation, one should naturally expect that this would have been effected by plain words. Now, the statute 6 Geo. 3. c. 25, entitled, 'An act for better regulating apprentices and persons working under contract,' is introduced by no general preamble. The first clause applies a remedy to the evil therein recited, the injustice practised on several

(7) Cro. Car. 129.

manufacturers of this kingdom by apprentices, who leave their service as soon as they become useful in it. The preamble of the 4th section is thus worded: "And whereas it frequently happens that artificers, calico-printers, handicraftsmen, miners, colliers, keelmen, pitmen, glassmen, potters, labourers, and others, who contract with persons for certain terms, do leave their respective services before the terms of their contracts are fulfilled, to the great disappointment and loss of the persons with whom they so contract; for remedy whereof be it enacted, that if any artificer (followed by the same list as before) or other person, shall contract with any person or persons whatsoever for any time or times whatsoever." Large as these words undoubtedly are, when we apply to them the ordinary rules for construing acts of parliament laid down by Mr. Dwarris (8), and acted upon in all times, but nowhere more clearly stated than by Lord Tenterden in Sandiman v. Breach, we find ourselves compelled to say, that the "other persons" are not all persons whatever who enter into engagements to serve for stated periods, but persons of the same description as those before enumerated, and that the generality of the words must have been so restricted, even though domestic servants had not been excepted from the 5th Elizabeth.

In the argument many cases were cited, among others, Gray v. Cookson, Lowther v. Lord Radnor, and Hardy v. Ryle, properly, because they are connected with the subject-matter, but not now requiring particular examination, because they have no bearing on this point. We may add, that the general opinion has been in conformity with our present decision, and that the treatises have so considered it.

We conclude then, that the defendant has acted without jurisdiction, and the plaintiff ought to have been permitted to prove her case. The rule for setting aside the nonsuit and granting a new trial must be absolute.

Rule absolute.

(8) Part 2nd, 736, 750.

This was an appeal against a borough rate, made in the borough of Carmarthen, which was lodged at the Quarter Sessions for that borough, in February last, and respited until the 17th of May, when it came on to be heard. The appellant proved that notice had been given to the mayor, town clerk, high constable, the late and present parish officers of the parish in which the appellant was assessed. It was objected, however, that a notice of appeal ought to have been given to the clerk of the peace of the borough, and not having been given, that the appeal could not be heard. The Recorder was of this opinion, and refused to hear it. In last Trinity term,

E. V. Williams obtained a rule nisi for a mandamus to the Recorder to enter continuances and hear the appeal; against which

Chilton, this day, shewed cause.-The Recorder was right in this case. The 5 & 6 Will. 4. c. 76. s. 92. authorizes the town

council of a municipal corporation to levy a borough rate, and for that purpose gives them all the powers which the Justices have for levying a county rate, by virtue of the 55 Geo. 3. c. 51, or as near thereto as the nature of the case will admit; and it is provided, that if any person shall think himself aggrieved by any such rate, it shall be lawful for him to appeal to the Recorder at the next Quarter Sessions for the borough, and such Recorder shall have power to hear and determine the same, and to award relief in the premises, as in the case of an appeal against any county rate. Now, the 55 Geo. 3. c. 51. directs, that an appeal against a county rate should be made to the Quarter Sessions, and the 57 Geo. 3. c. 94. s. 2. requires, that a notice in writing shall be given of NEW SERIES, VII.-MAG. CAS.

the intention to try the appeal to the clerk of the peace of the county, and to the hundred constables. There is a clerk of the peace of the borough of Carmarthen, and the notice in this case ought to have been given to him, whereas it was given to the town clerk, because, as it seems to have been thought, he has the custody of the books and accounts.

[COLERIDGE, J.-The clerk of the peace in the county is the officer of the authority that makes the county rate; but the clerk of the peace in the borough is not so there. The town clerk is their officer.]

E. V. Williams, contrà.-The statute confers three powers ;-first, the town council are authorized from time to time to make a rate ;-secondly, a power of appeal is given absolutely, as it was given by the 55 Geo. 3. c. 51;-thirdly, a powe to the recorder of hearing and determining the appeal as in the case of an appeal against the county rate. This qualification applies only to the third power, and ought not to be extended to the power of appeal itself. It is clear, that the requisites in the case of an appeal against a county rate cannot always be pursued in an appeal against a county rate. If no commission of the peace be granted to a borough, there can be no clerk of the peace. Again, the notice against the county rate must be given to the constable of the hundred: in most boroughs, there is no such officer.

[COLERIDGE, J.-You contend, then, that there is no necessity for any notice of appeal.]

Certainly. The Recorder or Justices may lay down a rule of practice as to notice of trial; but the statute does not require it. At all events, if a notice be requisite, the delivery to the town clerk is sufficient.

The

LORD DENMAN, C.J.-It appears to me, that the notice was sufficient, and that the Recorder ought to have heard the appeal. The notice of appeal which is given to the clerk of the peace, is given to the servant of the Justices, who make the rate. town council make the borough rate, and the town clerk is their servant, and has a similar authority to that of the clerk of the peace. We must not look at the mere words, but at the principle and reason of the

C

act of parliament. The town clerk is the same person as the clerk of the peace of the county, in regard to this matter; and the fact of there being another person who is clerk of the peace of the borough, is immaterial. I should be sorry, however, to think, that any doubt existed as to the necessity of a notice of appeal. In a case from the borough of Poole, we had to decide, that a notice of appeal was invalid (1).

LITTLEDALE, J.-It is very proper that a notice in writing should be given. In regard to the county rate, it is made by the Justices of the Peace, but the borough rate by the town council. Where there is an appeal against the former, the notice is to be given to the clerk of the peace, the officer of the Justices; where it is against the borough rate, it should be given to the town clerk. It is said, that he is not the clerk of the peace of the borough, and that there is a person who is the clerk of the peace of the borough; but he does not act like the clerk of the peace of the county, and is not the officer of the parties who make the rate.

WILLIAMS, J.-I am of the same opinion; but I cannot accede to the doctrine, that no notice at all is required. Here, however, notice has been given. The proceedings are approximated as near as possible to those in the case of a county rate. I agree in the remark, that some of the things required in the County Rate Act are impossible-as, for instance, the giving notice to the hundred constable, who does not exist in a borough. There has been a proper service in this case.

COLERIDGE, J.-I think, that a notice was required, and that the notice was properly served in this case. The last words of the sentence must be thrown back to the former part of it, so as to render the notice necessary, as in the case of the county rate. Then the same notice in substance must be given as there. In the present instance, the party to receive it was the town clerk. The reason why the clerk of the peace in the county receives it is, that he is the officer of the parties making the rate, and represents them. All the Justices could not be served with the no

(1) See The King v. the Recorder of Poole, 1 N. & P. 756; s. c. 6 Law J. Rep. K.B. (N.s.) 223.

By an order of removal, D. S, his wife, and six children, were removed to the parish of W, which order was confirmed on appeal. Subsequent to that confirmation the marriage of D. S. was dissolved by the Ecclesiastical Court for incest. W. D, a son of D. S. and his wife, but not named in that order, was subsequently removed to the parish of W: Held, that, on an appeal against the second order, evidence of this decree was admissible to negative the derivative settlement of W. S. from D. S, as he was not named in the former order of removal.

This was an appeal against an order of two Justices of the county of Kent, whereby William Shrubsole and Elizabeth his wife were removed from the parish of Doddington to the parish of Wye, in the said county, which came on to be heard before the Quarter Sessions for that county, when the order was confirmed, subject to the opinion of this Court on the following

CASE.

David Shrubsole, whose settlement was in Wye, was married to Elizabeth Fenn, whose settlement was in Kennington, at the parish church of St. Margaret's, Rochester, on the 24th of May 1813. By her he had issue William the pauper, and several other children, all born during the marriage in the parish of Eastling. David Shrubsole continued to reside in Eastling, with his wife and family, from the day of his marriage until the month of June 1833; during this period he frequently received relief from the parish of Wye.

By an order of two Justices, dated the

6th of June 1833, he was removed from Eastling to Wye, together with his wife and six children, therein named, by the description of David Shrubsole and Élizabeth his wife, and their six children (naming them). The pauper William was not named in the said order, but he was then unemancipated, and had gained no settlement in his own right. At the following Midsummer Sessions, which were held on the 2nd of July 1833, the churchwardens and overseers of Wye entered and respited an appeal against this order, which, after being again respited at the Michaelmas Sessions, was confirmed at the Epiphany Sessions, on the 31st of December 1833.

Previously to the confirmation of this order, the churchwardens of Wye had commenced a suit in the Arches Court of Canterbury, for the purpose of annulling the marriage between David Shrubsole and his wife; and, on the 1st of May 1834, the sentence of that Court (a copy of which accompanied, and was to be taken as part of the case,) was pronounced, by which the marriage between David Shrubsole and Elizabeth Fenn was dissolved, as having been actually null and void from the beginning, to all intents and purposes in law whatsoever (1). The Court of Quarter Sessions were of opinion that the order of removal, by which David Shrubsole and Elizabeth his wife, and their six children, were removed from Eastling to Wye, hav

facts, is in Eastling, the order of Sessions and the order of removal are to be quashed; otherwise the order of Sessions is to be confirmed.

In last term, the case was argued byStarr and Deedes, in support of the order of Sessions.—It is a well-established rule, that an order of Sessions, unappealed against, or confirmed on appeal, is conclusive, as to all facts contained therein. The first order, therefore, which was confirmed, is conclusive as to the marriage of David Shrubsole-The King v. North Featherton (2), Nympsfield v. Woodchester (3), The King v. St. Mary, Lambeth (4), The King v. Binegar (5). And not only is it conclusive, in reference to the settlement of the parties then removed, but also to all derivative settlements-The King v. Catterall (6).

[COLERIDGE, J.-Does not your difficulty consist in making out that the pauper is the son of the David, mentioned in the former order?]

The case finds that he was the son and one of the family of David, and it is immaterial that he was not mentioned in the order by name. In Nympsfield v. Woodchester, The King v. Catterall, The King v. St. Mary, Lambeth, the children were not named in the order, and yet it was held to be conclusive, even as to their derivative settlement. In like manner, the parties to certificates are concluded by the de

The question for the opinion of this Court is, whether, in consequence of the dissolution of the marriage between David Shrubsole and the said Elizabeth (the pauper's father and mother), by the sentence of the Arches Court, pronounced subsequently to the date of the order confirmed for the removal of David Shrubsole and Elizabeth his wife, to Wye, the settlement of the pauper, and consequently that of his wife, is in Eastling, the place of his birth, or in Wye, as a derivative settlement from his father.

If this Court shall be of opinion that the settlement of the pauper, upon these

(1) It appeared by the sentence, that the marriage was dissolved, on the ground of incest, David Shrubsole having married his niece.

certificates. New Windsor v. White Waltham (7), The King v. Headcorn (8), although such certificates will not conclude third parties-The King v. Lubbenham (9). It will be contended, however, that the sentence, which has been decreed since the order of Sessions, may now be given in evidence, but that cannot affect the settlement which had been already gained under the order of removal. It has been held, that the attainder of the father cannot defeat the settlement of the child acquired before

(2) 1 Sess. Ca. 154.
(3) 2 Stra. 1172.
(4) 6 Term Rep. 615.
(5) 7 East, 377.

(6) 6 Mau. & Selw. 83.

(7) 1 Stra. 186.

(8) Ibid. 1233; s. c. Burr. S.C. 253. (9) 4 Term Rep. 251.

the attainder The King v. St. Mary, Cardigan (10), The King v. Haddenham (11). As to the sentence of the Ecclesiastical Court, it could only be admissible as a judgment, where the same matter was in issue as was there decided, namely, the validity of the marriage. In the present case, the subject of discussion was the settlement of the pauper. The first order confirmed, however, has determined the validity of the marriage, at least as between these parties; and it was the fault of the parish officers in not procuring that appeal to be respited until the suit was determined.

Shee and Brett, contrà.-The present case is distinguishable from all those cited. In all of them the second marriage was void, and there was laches in the parties, in not producing the evidence which would have proved the nullity in the first appeal. But here the marriage was only voidable. It required the decree of the Ecclesiastical Court to set the marriage aside, and as that had not been obtained when the first appeal was tried, the children were not then bastards. They have become so since.

[LORD DENMAN, C.J.-Then you will contend, that the appellants may get rid of the settlement as to all the children?]

Yes, the argument goes that length. The Court of Quarter Sessions could not in the first instance adjudicate upon this marriage, but a court of competent jurisdiction has since adjudicated upon it, and has dissolved the marriage. Upon that dissolution, the children acquired a new settlement. As to the former order of Sessions being a conclusive judgment of the validity of the marriage, the answer is, that the marriage was not the direct point in the former appeal, but the settlement, to which the question of marriage is only collateral and incidental. Then the rule laid down by De Grey, C.J. (12) applies, that a former judgment is only conclusive where it is directly upon the point in question. The respondents were bound to make out that the pauper was the son of David Shrubsole, but they could not do so

(10) 6 Term Rep. 116. (11) 15 East, 463.

(12) Case of the Duchess of Kingston, 11 Stat. Tr. 261; see also 1 Phil. Evid. $19.

without proof of the marriage; and the only judgment upon that point is the decree in the Ecclesiastical Court. It may, however, be conceded, that the judgment on the former appeal would be conclusive evidence of the settlement of the children mentioned in it at its date, but there has been an alteration of circumstances, which has completely changed it. The case is analogous to those settlements, which have been acquired by a party doing an act to complete them after an order of removal -The King v. Barham (13), The King v. Willoughby (14). The decree, subsequent to the former order, making the children bastards, completes their settlement in the parish where they were born.

LORD DENMAN, C.J.-There was a case argued last term, of The King v. the Inhabitants of Wye. The pauper's father and mother, (as man and wife,) with their six children, were removed by an order, naming them, and dated in June 1833, from Eastling to Wye. An appeal was entered and respited at the following July Sessions; and after another respite, the order was confirmed at the Epiphany Sessions, December 1833. Pending this appeal, and before the confirmation of the order, the churchwardens of Wye had instituted proceedings in the Ecclesiastical Court, to annul the marriage between the father and mother, as incestuous; and on the 1st of May 1834, by the decree of that Court, the marriage was for this reason dissolved, as having been absolutely null and void from the beginning, to all intents and purposes in the law. At the date of the order, the pauper was alive, but was not named in it, nor removed by it. He was born during the existence of the marriage, and at that date was unemancipated, and without any acquired settlement. He was now, by the order at present in question, removed to Wye; and the only point which we have to consider is, whether the first-named order, with proof that the pauper was born during the existence of the marriage, conclusively establishes the derivative settlement for him in the parish of Wye. Our opinion is, that it does not.

(13) 3 B. & C. 99; s. c. 6 Law J. Rep. M.C. 78. (14) 4 Ad. & El. 143; s. c. 5 Law J. Rep. (N.S.) M.C. 35.