common-law students. Any exclusion indeed 3, c. 55, although he were a foreigner by birth, would be not only invidious but impossible. and owed allegiance to a foreign state. On "The only question is, whether any share in the other hand, suppose the testator an Enthe government of the University should be glishman, yet, if at the time of his decease he given to attorneys and solicitors. As a good have a foreign domicile, no legacy duty will be understanding between the different branches payable. The question, then, as to legacy of the profession is in an eminent degree de- duty turns always upon domicile. Thus in sirable, being greatly for the benefit of each, Arnold v. Arnold, 2 Myl. & K. 365, 2 Myl. & there seems no harm in allowing an eighth Craig, 256, the testator was a natural-born member to be added to the council, the head Englishman, domiciled in India, where he of one of the Inns in Chancery, taken in rota- died; but some of his executors and legatees tion, or one yearly elected by the three heads resided in England. His will was proved both of these Inns. This would be agreeable to in India and England, and his property in that branch of the profession, and would be India having been remitted to the English also of great use in the conduct of the Uni- executors to be by them administered in Engversity's affairs. land, was in fact administered under the "A question may arise if this University decree of the Court of Chancery. Lord Cotought to grant degrees of bachelor of laws. It tenham nevertheless held that the duty did not is not very material. But one thing seems attach upon the legacies paid in England under clear: a certificate of two years' attendance at the sanction of the court. Again, in re Bruce, different classes being given by the professors 2 Cro. & Jerv. 436, the Court of Exchequer respectively, and also a testimonial of good held that this duty was not demandable in the conduct, ought to have the effect of saving the case of a foreigner residing abroad, and a will party from two of the five years required by made abroad, although the property, the exethree of the societies previous to admission as cutors, and the legatees were in England, and a barrister. At present the degree of master the property was administered there. In the of arts at Oxford, Cambridge, or Dublin, case of Jackson v. Forbes, 2 Cro. & Jerv. 328, wholly unattended with a certificate of ability, the testator died domiciled in India; his proand without any regard to legal education at perty was situate there, his executors proved all, saves these two years at all the Inns of the will there, and remitted the property in Court. Yet the being a Scottish barrister has question to this country, and invested it in no such effect. There is in this a great incon- government stock; and two of the executors sistency, which the benchers might in each afterwards came to this country, and applied Inn easily remove, and the certificate above the funds so remitted, according to the direcproposed appears to be the proper course. tions of his will, for the benefit of the residuary "How far certificates of study should be legatees. A bill having been filed in Chancery made necessary to being admitted barristers is by one of those residuary legatees, the fund scarcely a question. Either such certificates was transferred into the name of the accountantor actual examination seems to be indispensa- general in trust in the cause. The executors ble, else the establishment of a University did not prove the will in this country, although would be a mere form. Perhaps the best the bill by mistake alleged that they had done course would be, considering the intimate so,- a fact which does not appear to have been connection between the proposed institution noticed in the course of the argument. The and the four societies, to leave the regulation of this important and delicate matter to the deliberations of the council. Such are our opinions upon this subject; all which is respectfully submitted to the bench, the bar, and the public." THE PROPERTY LAWYER. LEGACY DUTY.-DOMICILE. PERSONAL property follows the domicile of the owner, and is deemed to be locally situate at the place of such domicile, wherever the owner himself may happen personally to be. If, therefore, a testator at the time of his death had his domicile in Great Britain, legacy duty will be demandable under the statute 55 Geo. "In the Middle Temple, we believe that three years are now sufficient, provided the person to be admitted is twenty-three years of age." question upon the liability to legacy duty came in the first instance before the Court of Chancery, by which it was sent, in the shape of a case, to the Court of Exchequer; and the court certified that under these circumstances the legacy duty was not payable. The certificate having been acted upon by Lord Brougham, was made the subject of an appeal to the House of Lords, under the name of Attorney-General v. Jackson, 8 Bligh, N. S., where the decision of the Court of Chancery and of the Court of Exchequer was ultimately affirmed. So in Ewen's case, 1 Cro. & Jerv. 151, where a British subject died domiciled in England, the Court of Exchequer held that legacy duty was payable on his property situate abroad in the funds of Austria, Russia, France, and America. In the case now brought to the notice of our readers, the testator, James Fanning, was a native of Ireland, but had acquired a domicile in France. In consequence of the revolution in 1789, he emigrated from there to England, and his property was confiscated by the French government. He made his will in England; and in 1802 he returned to France, where he died in 1806. His will was proved both in [The periods for holding the quarter sessions France and England. Under the treaty of throughout the kingdom are fixed by act of peace in 1815, Fanning's estate became entitled parliament, and nothing seems clearer than to a portion of the French stock appropriated the rule laid down in the Books of Sessions for the compensation of British subjects whose Practice, that an appeal against an order of reproperty had been confiscated by the revolu- moval must be to the next general or quarter tionary government. His executors established sessions after the removal, or after the service his claim, and his share of the stock thus of the order, in cases where the order is susappropriated having been sold by the commis- pended. If this rule were acted on to the sioners to satisfy their award, the proceeds letter, however, it would produce manifest inwere paid into the Court of Chancery. By justice in many cases. The removal, or the Fanning's will, several pecuniary legacies were service of the order, might be delayed, designgiven, upon which the crown claimed legacy edly or accidentally, to a period so nearly apduty; and a portion of the fund in question proaching to the commencement of the sessions having been left in court to answer that claim, as to render it inconvenient, or impossible for if substantiated, the plaintiffs presented a peti- the parish affected by the order of removal, to tion praying the payment of the reserved fund establish or even assert their rights. To avoid to themselves, on the ground that the testator's this obvious injustice, the next quarter sessions domicile was foreign, and that the legacies were has always been construed to mean, the next consequently not subject to duty. The foreign practicable quarter sessions after the removal. domicile of Fanning having been established Even with this qualification, the rule as laid to the satisfaction of the Vice-Chancellor of down is vague and unsatisfactory. The correct England, his Honour observed: "The sums rule can only be ascertained by a reference to awarded to Fanning's executors were clearly the act of parliament, and the cases decided French in their origin; and although they on it. subsequently, for the purpose of payment, By the Poor Law Amendment Act, (4 & 5 assumed the form of stock in the English W. 4, c. 79,) no person shall be removed, or funds, I do not think that circumstance makes removeable, under any order of removal, until any difference. We have, then, the following twenty-one days after a notice in writing of his facts in this case: a foreign domicile, a foreign being chargeable has been sent to the overseers will, and foreign property; and it appears to of the parish to which the order of removal is me to be perfectly plain that the legacy duty is directed; unless the overseers of the parish to not payable." In the foregoing case it will be which the order of removal is directed, agree noticed that his Honour treated the fund in to receive the pauper before the period of question as not having lost its original foreign twenty-one days has elapsed: but if notice of character by its transmission to England. But appeal is received within twenty-one days, then it has been since decided, in the case of Thom- the removal is to be delayed until after the son v. Advocate-General, 13 Sim. 153, that personal property unquestionably English, and wholly situate in England, and collected and administered there by the executors of a native of Scotland, who made his will and died at Demerara, where he was then domiciled and resident, was not subject to legacy duty. The Court of Exchequer in Scotland had decided in favour of the crown; but the House of Lords, with the concurrence of the judges, reversed that judgment. The law, therefore, is now settled, in the most unqualified manner, that the foreign domicile of a testator, whether a British subject or a foreigner, protects his property from liability to the legacy duty imposed by the act of George the Third. time expires for prosecuting the appeal. And by section 81, when notice of appeal is given, the appellant parish shall, fourteen days at least before the first day of the sessions at which such appeal is intended to be tried, send the respondent parish a statement in writing of the grounds of appeal. Upon these sections taken together, the Court of Queen's Bench lately held, that the next practicable sessions means, a sessions which allows the appellant parish twenty-one days after the order of removal has been served, to consider whether it should be submitted to, and fourteen days after the expiration of such twenty-one days, to enable the appellant parish to transmit to the respondent parish a sufficient notice of appeal. The point came under the consideration of the court, upon a rule for a mandamus to the justices of Lancashire, commanding them to hear the appeal of the parish of Holywell, in Flintshire, against an order of TIME FOR APPEALS TO QUARTER SESSIONS removal from the township of Warrington, in Lancashire, to Holywell. The rule was granted POINTS IN COMMON LAW. AGAINST ORDERS OF REMOVAL. As the number of poor law appeals has sensibly, though gradually increased within the last two years, and it does not seem probable that the law of settlement will undergo any material alteration during the present session of parliament, it is desirable that the period when notice of appeal must be given in settlement cases, should be distinctly understood. on affidavits, which disclosed, that the parish debtor amongst his creditors, as well as the proofficers of Holywell were, on the 14th October tection of his person from imprisonment, are 1842, served with an order of removal and alike the objects of the bankrupt and insolvent order of suspension, that on the 21st November, laws, and persons are found who contend, that notice of appeal and of the grounds thereof the law of Debtor and Creditor only requires to be were served on the parish officers of Warring- amended by consolidating and assimilating the ton, that on the 19th January 1843, the appel- two systems, and employing the same machinery lants applied at the quarter sessions held at for carrying them into operation. Without Kirkdale, to enter and prosecute the appeal, but staying to examine into the practicability of that the sessions refused to entertain it. The this theory, the proposition can scarcely fail to affidavits in answer showed, that the quarter obtain general assent, that where a fraudulent sessions for the Hundred, wherein the town- debtor prefers a creditor, and thereby endeaship of Warrington is situate, commenced at vours to disturb the equal distribution of his Kirkdale on the 3rd November 1842, that no effects, the same result should follow, whether notice of appeal was given for those sessions, the debtor acted in contemplation of bankruptcy and no application then made to enter and or of insolvency. In a great number of cases, respite. however, a different doctrine has prevailed, and it seems to have been considered that a transaction amounting to a fraudulent preference, although it would be void as against the assignees of a bankrupt if done in contemplation of bankruptcy, would be sustained as against such assignees if done in contemplation of insolvency. This doctrine, however, has been considerably shaken by a late decision of the Court of Queen's Bench.' It was conceded in the argument, that the general rule that a parish may treat the actual removal as the grievance, did not apply in the case of a suspended order, but that the time for appeal was to be computed from the service of the order, and not from the removal of the pauper. It was an action of trover by the assignees of a bankrupt, against the sheriff of Yorkshire and the execution creditor, the only material issue being, whether a warrant of attorney given to the bankrupt's father voluntarily, about six weeks before the fiat issued, was a fraudu lent preference in contemplation of bankruptcy? The embarrassed circumstances of the bankrupt at the time he executed the warrant of attorney, and his apprehension that he should be imprisoned for debt, were clearly proved; but Baron Parke, who tried the cause, in summing up, informed the jury, that in order to prove the warrant of attorney was fraudulent and void as against the assignees of the bankrupt, it was necessary to show that he contemplated, not merely insolvency but actual bankruptcy. This view of the learned baron does not seem to have been hastily adopted, as he expressed a similar opinion in Morgan v. Brundett, although the report in that case does not show, that the doctrine then laid down by the learned judge met with the concurrence of the other judges of the court. The question for the determination of the court was simply, whether the appeal ought to have been to the November sessions, or whether it was in time when made to the January sessions? It was admitted, that if there was not time to enter so as to try, it was not necessary to enter for the mere purpose of respiting, in order to try at a subsequent sessions; but it was contended, on behalf of the respondent, that as more than fourteen days intervened between the service of the order of removal and the first day of the November sessions, there was sufficient time for giving notice, and the appellant parish was bound to appeal. Whilst for the appellants it was said, that as there were only twenty days from the 14th of October, when the order of removal was served, to the 3rd November, when the session commenced, they were not bound to go to the November sessions. The court in deciding the question observed, that the twenty-one days allowed by section 79, was to enable parish officers to examine into the facts, and consider whether they should appeal having determined on appealing, by section 81 they must give fourteen days notice of the grounds of appeal. If the court held that a parish was bound to appeal to a sessions The Court of Queen's Bench, in intimating commencing before the expiration of both the their dissent from the ruling of the learned periods specified in the act of parliament, it baron, in Aldred v. Constable, admitted, that would be in effect to take from them the privi- the multitude of cases reported on this point lege of the period of twenty-one days, during could not be reconciled. In the old cases, it which they were to make proper inquiries and was held that where bankruptcy was probable ascertain their rights. Upon these grounds and eventually occurred, it must be presumed the court made the rule for a mandamus to have been contemplated; whilst the latter absolute. The result of this decision is, that the practicable sessions to which an appeal must be made, means a sessions which commences not less than thirty-five days after the service of the order of removal. FRAUDULENT PREFERENCE IN CONTEM- An equal distribution of the effects of the cases assumed, that unless bankruptcy was known to be inevitable,' it could not have been contemplated. The court was now of opinion, e See Atkinson v. Brindall, 2 Bing. N.C. 225; Gibson v. Boutts, 3 Scott, 229, 234. Aldred and another, assignees of John Brown, a bankrupt, against Sir Thomas Constable, Bart., and Charles Brown. 5 B. & Ad. 289. 134 Law of Marriage.—Public Companies' Consolidation Acts. LAW OF MARRIAGE. [From a Correspondent.] WHETHER A PRIEST NECESSARY BEFORE that the jury ought to have been told that the point of fact, pronounced no decision at all in contemplation of insolvency was by no means the Presbyterian Marriage case. The argument inconsistent with that of bankruptcy, and if the by which this startling proposition is sought to debtor, when he gave the warrant of attorney, be established is, that becanse the Law Peers knew that his assets were inadequate to the were equally divided in opinion, and because payment of all his debts, and that he was likely the judgment of affirmance went upon the from the position in which he was placed to principle of semper præsumitur pro negantebecome a bankrupt, the proof of fraudulent therefore, all that was done was to abstain from preference would be complete. Upon these altering the sentence of the Irish court. But grounds a new trial was granted." unfortunately for this contention, the House of Lords actually made a new and substantive judgment of their own; for not only did they dismiss the writ of error, but their journals show that the judgment of the house was in these terms :-" It is ordered and adjudged by the Lords spiritual and temporal in parliament assembled, that the said judgment (complained of) be affirmed, and that the record be remitted," &c. The Lords frequently dispose THIS is in fact the question raised in the of cases without making any actual judgment Irish Presbyterian Marriages case, decided a upon their merits. Thus, where they simply year ago by the House of Lords. It has, how-"dismiss" an appeal without more, the party ever, made its appearance again in the form of may present a new appeal next day. But if an action for criminal conversation, Catherwood the house go on to affirm the judgment comv. Caslon, before the Court of Exchequer; plained of, the power of further litigation is where it of course became necessary for the excluded. So in this Presbyterian Marriage plaintiff to prove his marriage; the fact being, case, the house, by going beyond a simple disthat he happening, on his travels, to be at missal and delivering a positive judgment, Beyrout, in Syria, became acquainted with the made a decision which must govern all subordaughter of the then consul there, and was dinate jurisdictions. The inquiry, whether the married to her on the 5th March 1834, at the decision was carried nem. con., or by a majority consulate office, in which divine service ac- of votes, or by the maxim præsumitur pro cording to the rites of the Church of England negante, is foreclosed by the express terms of was alleged to have been celebrated; the func- the judgment, and it would be highly indetionary officiating as celebrator being a Mr. corous in an inferior tribunal to institute such Bird, an American missionary. After much an investigation. Accordingly the Court of argument, the determination of the question Exchequer treat the decision as binding, bestood over till the decision of the House of cause it is a judgment of the last resort. They Lords was given in the great case above referred have nothing to do with the counting of noses. to; when Mr. Baron Parke, (as appears by the They look to the result, and we are clear that report just published of Messrs. Meeson and the true doctrine of the constitution is, that Welsby, vol. 13, p. 261,) delivered the judg- they can with propriety look at nothing else. ment of the Court of Exchequer, holding, that inasmuch as it appeared that the parties had merely entered into a contract of marriage per verba de præsenti in the presence of witnesses, but not proved to have been made in the presence of a minister in episcopal orders, therefore, in conformity with the sentence of the House of Lords, no alternative remained but to decide, On the 8th of May last, three statutes were that by the law of this country, at the period passed by the legislature, having for their object in question, the marriage was invalid; the the establishment of a series of uniform regula learned judge not going into argument, but tions respecting the constitution and working simply observing, that by the authority of the of companies incorporated for carrying on case in the House of Lords "we are bound." undertakings of a public nature; the most It is therefore with feelings of no slight surprominent place being of course assigned to prise, that we find a long (and we acknowledge, railways, which are the subject of many anxious an able and ingenious) article in the last and wise provisions peculiar to themselves. number of "The Law Review," purporting to demonstrate that the House of Lords have, in h In Gibson v. Muskett, 4 Man. & G. 160, it appears that Lord Abinger directed the jury, that in order to find a payment made in contemplation of bankruptcy, they must be satisfied that bankruptcy was inevitable. In this case, however, the Court of Common Pleas ordered a new trial. PUBLIC COMPANIES' CONSOLIDA- The first of these enactments, the 8 Vict. c. 16, is of a more general character than the other two, applying as it does to every joint stock company which shall by any act be incorporated for the purpose of carrying on any undertaking of whatever nature or description. So that hereafter no company can come into existence under the authority of parliament, without being immediately subject to the regulations of this act, unless an express exception be introduced. In preparing an incorporation Public Companies' Consolidation Acts and Railway egulation Acts. 135 bill, therefore, the future draftsman has only to rents and profits, &c. The act, secondly, gives look to this statute, which furnishes him with compulsory powers of purchasing, by enacting a code of regulations, at once minute and com- that where no agreement is come to, and the prehensive, the dictates of experience, which he claim of compensation does not exceed 50%., it will in vain hope to rival by any original com- shall be settled by two justices of the peace binations of his own understanding-and thus assembled and acting together; but if the it will be found that what formerly was apt to compensation claimed exceeds 501., it shall be run into a hundred or a hundred and fifty settled by arbitration or by a jury, at the option clauses, may now be accomplished by a dozen of the party claiming compensation; the costs of lines-nothing more being required than an in both cases to fall exclusively on the comenactment constituting the proposed associa- | pany, if the sum awarded prove greater than tion, which from that instant, under the operation of the 8 Vict. c. 16, assumes the character, enjoys the privileges, and possesses all the attributes of a well-ordered and efficient body corporate. that previously offered by them, but to be equally divided if it be the same or a less sum. The act then gives directions as to the application of the compensation money, the forms of conveyances, and the entry upon the lands; after which it provides, that the owners of intersected lands may, in certain cases, require This act regulates the distribution of capital; the transfer of shares; the payment of calls; the power of borrowing; the consolidation of the company to buy the whole of them. Proshares ; the application of capital; the holding visions are next introduced respecting copyof general meetings; the appointment, rotation, holds, common lands, mortgages, rent charges, powers, and proceedings of directors; the ap- leases, &c. Thus much, therefore, of the land pointment and duties of auditors; the general clauses consolidation act. accountability of the company officers; the keeping of accounts; the making of dividends; the enactment of bye laws; the giving of notices; the recovery of damages and penalties, &c. We are now come to the third of these uniformity statutes; the railway consolidation act; 8 Vict. c. 20, which begins by providing inter alia, that where parliament has authorized any alterations from the original plan or course of The second of the above enactments, the the railway, the works shall not be proceeded 8 Vict. c. 18, is the land clauses consolidation with until sections of such alterations shall act, whereby certain customary provisions in have been previously deposited with the clerks troduced in statutes authorizing the compulsory of the peace and parish clerks, for inspection taking of lands for public purposes are consoli by all parties interested. This is followed by dated. This, like the other, is an enactment very important clauses, limiting the extent of tending mightly to facilitate and abridge the permissible deviations from the mysterious labours of the parliamentary draftsmen, and datum line, of which so much had been said hence a great boon in the shape of consequent without commensurate instruction, in the preeconomy and increased security to the public. sent session of parliament. The datum line is For undoubtedly these general uniformity sta- a horizontal line, referable to some fixed point tutes will operate beneficially in both ways- stated in the section, and near either of the since it is plain that cheapness will be produced termini; which line must be the same throughby them-parties having here a body of regu- out the whole length of the railway or its lations made to their hand without any expense, branches respectively; the object being to while security to the public is still more con- show the intended level of the proposed works: spicuously attained by the impossibility which and this is done by vertical measures taken now exists, of smuggling through parliament from the datum line to the railway line, markany of those obnoxious clauses which, under ing the feet and inches each change of gradient the old system, were insidiously introduced by or inclination that may occur-in other words, the promoters of private bills, giving them noting the extent of vertical deviation made by powers which were unguardedly sanctioned by the railway line from the datum or fixed line'; the legislature, and afterwards most tyrannically now the act declares that it shall not be lawful employed by those who obtained them. The for the company, without consent, to deviate very fact that company bills may now be framed from the levels thus ascertained and approved in the compass of a page or two-the impro- of by parliament beyond five feet at any place, priety of attempting to swell them out to any or beyond two feet in any town or village. great length-their brevity in short-renders it Then, as to lateral deviations, the act provides quite hopeless to insert in them any very ob- that the company shall not in towns and villages jectionable clauses, for these would soon be go beyond ten yards, or elsewhere beyond one detected and expunged. hundred yards, taking care, however, that they do not by such deviations encroach on the lands of any but those who have had due notice of their application to parliament. Subject to these restrictions, and under the obligation of doing as little damage as possible, and of making full satisfaction where damage is unavoidable; very large powers are given to the company for the execution of their workpowers, indeed, so extensive and irresistible, But to resume (after this, we trust, not quite unseasonable digression) the consideration of the 8 Vict. c. 18. It provides in the first place for the purchase of lands by private agreement, enabling parties under disabilities to sell and convey-as corporations, tenants in tail or for life, married women, guardians, committees of lunatics and idiots, trustees, and all parties intitled for the time being to the receipt of the |