there be a use in the trustees, or not, must depend upon the intention of the devisor, which is to be collected from the will. This provision, it appears, was made in order to secure to the several femes coverte a separate allowance, free from the control of their husbands, to effectuate which it is essentially necessary that the trustees should take the estate with the use executed, otherwise the husband of each taker would be entitled to receive the profits, and so defeat the very object that the devisor had in view."

lifetime; and the fact, that, in reaching them, the estate necessarily comprehended the objects of the intervening limitations, with regard to whom no purpose was to be answered requiring that the trustees should take an estate, might seem to be no reason for extending that estate to the limitations subsequent to the gifts to the several femes coverte."

upon the coming into esse of a tenant in tail, is executed in such tenant in tail, having still the legal remainder in fee in the trustees.

From these observations, Mr. Jarman would seem to imply, that the trustees must, at least, take the legal estate, until the last estate requiring the legal estate to The allusion of Lawrence, J., to the case of Lord Say be in them is exhausted. But the real question seems and Sele, (1 Eq. Abr. 383), and the observation of to be, as suggested by the arguments in Brown v. WhiteLord Kenyon, that that was a case by itself, may, in-way, whether the supposed necessity for the legal estate deed, lead to the inference, that those learned judges being altogether in or altogether out of the trustees, is had in view the question, whether the necessity of the not a purely imaginary necessity, uncalled for either by legal estate being in the trustees, for the support of a any rule of law, or by any real ground of convenience on particular equitable interest, required it to be in them which to found an implied intention in a devisee. When throughout; but it is by no means clear that that a devise is made to trustees and their heirs, of course question was fully brought under their consideration. they take by force of that gift, unqualified by any subIf it was, their view of the matter labours, at least, sequent devise, a legal fee. Suppose such devise to be under the disadvantage of the implied disapprobation followed by a limitation to the use of A., a person sui of a judge, whose very doubts have long been, and juris, for life. Is it doubted that the legal estate for still are, treated with great respect. the life of A. shifts out of the trustees into A., or is it In Hawkins v. Luscombe, (2 Swans. 375), before doubted that the legal remainder in fee is in the trusLord Eldon, the devise was to trustees and their heirs, tees? Suppose the next limitation is to the use of the upon trust to permit Mrs. Manning and others to first and other sons of A. in tail. The legal estate, comtake the rents and profits in recompense of the main-mensurate in quantity with the estate tail, of course, tenance of J. L. Manning, son of Mrs. Manning, till he attained twenty-one, or died; and, subject thereto, to the use of the trustees and their heirs, upon trusts for accumulation for J. L. Manning until he should There is no legal difficulty in conceiving a succession attain twenty-one, or die; and, after he should attain of partial legal estates, executed in successive cestuis twenty-one, to the use of him and his assigns for his que use, leaving still the legal fee in remainder in the life, he taking the name of Luscombe; remainder to trustees. What more of legal difficulty is there in subthe use of the trustees to support contingent re- stituting the trustees for some of the cestuis que use of mainders; remainder to his first and other sons in partial estates, and holding them to be seised to the use, tail male, taking the name of Luscombe, with several for example, of A. for life, remainder to the use of other remainders; and then a remainder to the use themselves for the life of B., a married woman, in trust of the trustees and their heirs, for the separate use for B., remainder to the use of C. in tail, and so on? of Mrs. Manning during her life; and then other re- the legal estate of inheritance, subject to the partial mainders over; and a proviso for forfeiture, in the event interests, whether legal or equitable, carved out of it, of any person required to take the name of Luscombe remaining in them all the while. The execution of not doing so, and within a specified time obtaining an the use does not necessarily require in the cestui que act of Parliament for changing his name. Upon a use any beneficial interest; nor is there any legal rule or question as to the effect of this clause of forfeiture, reasoning that we are aware of, that makes it more imSir S. Romilly said that the plaintiff's were not in a proper for a partial estate to be executed in the trustees position to try the question at law, because the whole themselves, either before or after a partial legal estate legal estate was in the trustees. "It is true," he said, executed in another cestui que use, being also the beneCL the express trust is only till the defendant attains ficiary, than for a succession of partial estates to be exetwenty-one; but, the whole legal fee having been con- cuted as legal estates in several successive cestuis que veyed to them, (the trustees), to the use of them and use, being all beneficiaries. The true view of the case is, their heirs, subsequent words, denoting an intention to as we conceive, that, accurately speaking, there would vest the legal fee in other persons, cannot have that not be, in such a series of limitations as that of Harton v. effect." But Lord Eldon doubted whether the whole Harton, (if the legal estate were held not to vest throughlegal estate was in the trustees, unless the condition out in the trustees), a shifting backwards and forwards was broken. The precise effect of his Lordship's doubt of the legal estate, although it has that appearance, and is not very measurable; but it is enough, at any rate, although that mode of expression has been used both in to shew, that, even where the language of the limita- the arguments in Brown v. Whiteway, and in these obtion was, to the use of the trustees and their heirs, lan-servations; but that the legal inheritance remains in the guage which, Lord Eldon said, was very important, that was not enough to make it clear that there might not be an execution of the use in J. L. Manning, (the first beneficial owner to whom a use was limited in terms), assuming his estate not to be removed by forfeiture, although there were subsequent estates, which, being for the separate use of married women, would require the legal estate to be in the trustees.

Mr. Jarman has observed, upon Harton v. Harton, (Wills, vol. 2, p. 222), “that, perhaps, it is not strictly accurate to say, that in that case a fee in the trustees was necessary to secure the beneficial interest to the femes coverte; for, though the trusts in favour of the second and third women could not arise until the failure of the objects of the intervening limitations in tail, yet still they must inevitably take effect, if at all, in their

trustees, so far and so often as the particular partial estate does not vest as a legal estate; and, therefore, when after a use executed, say for life, the life estate of a married woman arises, it is not that the legal estate, having shifted out of the trustees, shifts back again, but that, the particular legal estate executed in the tenant for life having (speaking of it in point of limitation, and not of time) become exhausted, the legal remainder which never was out of the trustees takes effect, to support the equitable life estate of the married woman.

On the whole, we conclude, that the doctrine of Harton v. Harton is open to much observation; and, as the case of Brown v. Whiteway was decided without any expression of approbation of Harton v. Harton, and solely upon the ground that the court did not think, that, on a demurrer in equity, it ought to overrule a

case at law on a purely legal question, the decision in Brown v. Whiteway seems rather to invite, than to repel, criticism on the decision in Harton v. Harton.

Correspondence.

TO THE EDITOR OF THE JURIST.

SIR,-What is a sufficient bill of particulars in actions by engineers and surveyors against the projectors of railways or the directors of railway companies, is a question which is frequently arising in practice, but does not seem at present well settled. The only cases in which it has as yet been discussed in court are Higgins v. Ede and Rennie v. Beresford, in the Exchequer, reported in the present volume of THE JURIST, p. 76, Part I. In Higgins v. Ede, the bill of particulars stated the number of miles over which the survey extended, and the branches on which it was made; but did not state how much time was expended on it, or what persons were employed about it, or at what rate per mile the charge was made. A judge at chambers having refused to make an order for better particulars, the court concurred. In Rennie v. Beresford the bill of particulars contained an item of one gross sum for surveying, travelling charges, and assistance, without specifying either the number of days or the number of assistants employed, and without distinguishing how much of the charge was in respect of the plaintiff's own time and labour, and how much for the time and labour of surveyors and levellers found by him. The court refused a rule by which it was sought to compel the plaintiff to reform this item. The Lord Chief Baron, indeed, seems to have intimated his opinion, that the bill of particulars would have been more satisfactory if it had stated how much per mile the plaintiff charged for his survey; but the counsel for the defendant contended, further, that the plaintiff should separate his personal charges as engineer from the other charges.

In a subsequent case, of Galloway v. Bass, Mr. Justice Patteson, at chambers, made an order at variance with the above decisions, after notice of Rennie v. Beresford, and after conferring with the learned Barons on their

decision in that case.

The following bill of particulars of the plaintiff's demand had been delivered:

Whereas by an act of Parliament made and passed in the session of Parliament held in the eighth and ninth years of the reign of her present Majesty, intitled "An Act to alter and amend an Act passed in the third and fourth Year of the Reign of her present Majesty Queen Victoria, intitled' An Act to enable the Owners of settled Estates to defray the Expenses of draining the same by way of Mortgage," it was, amongst other things, enacted, that, for simplifying the proceedings under the said act, and rendering the same inexpensive, it should be lawful for the Lord High Chancellor, with the assistance of the Master of the Rolls, from time to time to make such orders and provisions as he might think proper for the facilitating the mode of application to the court, and of the proceedings before the Master, or otherwise: And whereas the Right Honour able John Singleton, Lord Lyndhurst, Lord High Chancellor of Great Britain, has, with the assistance of the Right Honourable Henry Lord Langdale, Master of the Rolls, and for the purposes in the said act mentioned, thought proper to make the following orders and provisions. Now, therefore, it is ordered by his Lordship the Lord High Chancellor, with the assistance of his Lordship the Master of the Rolls, that all applications made to this court pursuant to the said act, and all proceedings to be had thereunder, shall be made and conducted in the manner directed by the several orders and provisions hereinafter set forth, viz.

I. Any person entitled to land within the meaning of the said act may present to the Lord Chancellor, or to the Master of the Rolls, a petition in the form hereinafter set forth, with such variations as the nature and circumstances of the case may require. Form of Petition.

In the Matter of

and

In the Matter of the Act 8 & 9 Vict. c. 56, &c.
To the Right Honourable the Lord Chancellor [or,
"the Right Honourable the Master of the Rolls"].
The humble petition of A. B.
Sheweth,

"To examining the counties of Nottingham, Leicester, Derby, and Warwick, to ascertain the most eligible line for a railway from Nottingham to Coventry; examining the country for various proposed branches to, and deviations from, the main line; making various trials and cross sections; setting out the line, making and directing levels and surveys to be made; making new examination and surveys, in consequence of alterations made from time to time by the suggestions of the consulting engineer; various instructions to Messrs. Dempsey, the surveyors of the company, and general superintendance of plans, sections, and performing all the other duties of civil engineer to the Nottingham, BirThat the lands hereinafter mentioned, viz. [&c.] are mingham, and Coventry Junction Railway £2000." A summons was taken out for further and better par-wise in some other character described in the act], and that now vested in your petitioner as tenant for life [or otherticulars, which was attended on the 7th February. The application was opposed, on the authority of Rennie v. Beresford. The learned judge took time for the purpose of seeing the learned Barons, and on the 9th made an order for the delivery of "a further and better account in writing of the particulars of plaintiff's demand, for which this action is brought, and stating whether the charge of 20007. is calculated by the day or mile, or how," &c.

*This case has been communicated by Mr. George Rochfort Clarke, who attended before Mr. Justice Patteson on behalf of the plaintiff, and was also special pleader for the defendant in Rennie v. Beresford.

your petitioner claims to be entitled to make permaare in the said act mentioned, and to cause the expense nent improvements in the said lands, by such means as of making the same to be made a charge on the inheritance of the said lands, under the provisions of the said

act.

C. D., who hath consented, in writing, to this appli-
That the said lands are in the actual occupation of

cation.

Your petitioner therefore prays, that your petitioner may be at liberty to make permanent improvements in the said lands, by the means in the said act mentioned, or some of such means,

and to cause the expense of making such im-
provements to be made a charge on the inherit-
ance of the said lands, under the provisions of
the said act, or that your Lordship will make
such other order in the premises, as to your
Lordship shall seem meet.

And your petitioner, &c. (Signed) A. B.
I hereby consent to this petition.

(Signed) C. D., occupying tenant of the
lands sought to be improved.

II. The petitioner, in any such petition presented to the Lord Chancellor, is to mark the same at or near the top or upper part thereof with the name of one of the Vice-Chancellors.

III. The Master of the Rolls, in the case of any such petition presented to him, and the Vice-Chancellor with whose name any such petition presented to the Lord Chancellor shall be marked, may, upon consideration of such petition, and without any attendance of counsel, solicitor, or petitioner thereon, if he shall so think fit, make an order on such petition to the effect following, or to such other like effect, with such variations as the nature and circumstances of the case may require.

V. The Master, if he shall think it necessary for the due prosecution of the reference, may direct the petitioner to serve any other person, interested in the land, with notice of the proceedings; and such person, so served, may afterwards attend such proceedings as a party thereto; but, if such person, being so served, shall decline or neglect to attend pursuant to such notice, the Master may proceed in his absence, and he is to state the same in his report.

VI. The Master is, during the reference, to be at liberty to apply, by note in writing to the judge by whom the order was made, for any special directions, or for leave to state any special circumstances, touching the matters referred to him; and, if he shall receive any such special directions, or such leave, he is to state the same, and his proceeding thereon, in his report.

VII. The proceedings upon the reference are to be conducted according to the General Rules and Orders of the Court of Chancery, so far as they are consistent with these Orders.

VIII. The Master's report is to be filed in the Report Office.

IX. Any person interested in the land is, within fourteen days after the filing of the report, to be at liberty to petition the Lord Chancellor in case the reference was made by him or any Vice-Chancellor, or the Master of the Rolls in case the reference was made by him, that such report may be reviewed.

X. If such petition shall be presented, the judge by whom the reference was made is to take the same into his consideration; and, if he shall so think fit, he may dispose thereof, either by dismissing the same, or by referring the matter back to the Master with or without special directions.

XI. The judge considering such petition that the Master's report may not be confirmed, may direct any person interested to attend, and may, if he shall think it necessary, but not otherwise, direct the same to be argued by counsel in open court or otherwise.

XII. If a reference back to the Master is made, the proceedings are to be as on the original reference. XIII. If no petition that the report may be reviewed is presented, the person who has obtained the report may, after the expiration of fourteen days from the filing of the report, present a petition for its confirmation, and for leave to make the proposed improvements under the provisions of the act; and such petition may be in the form hereinafter set forth, with such variations as the nature and circumstances of the case may require.

In the Matter of the Act 8 & 9 Vict. c. 56, &c. Upon consideration, &c. of the petition, &c., it is ordered, that it be referred to the Master in rotation to inquire, and state to the court, whether the petitioner is entitled in possession to the lands in the petition mentioned, or any and which of them, within the meaning of the said act of Parliament, and whether the said lands are in the actual occupation of C. D., in the said petition named; and, if so, under what title, and whether the said C. D. has consented, in writing, to the said petition, and to the improvements proposed to be made under the provisions of the said act? And if the Master shall find that the petitioner is so entitled, and that the said C. D. is in such occupation, and has so consented, let the Master further inquire and state to the court what, if any, other persons or person are or is entitled to, or interested in, the said lands, or any of them, in remainder or reversion, or by way of mortgage, charge, or otherwise; and the petitioner is to be at liberty to lay before the Master proposals for making permanent improvements in the said lands, by any such means as are in the said act mentioned, and to set forth in such proposals the nature and extent of such improvements, and the estimated expense thereof, and the estimated value of the permanent improvements proposed to be made. And the Master is to inquire and state whether such proposed improvements are permanent improvements, within the meaning of the said act; and, if so, what will be the expense of making the same, and what will be the value of such permanent improvements? and whether it will be beneficial to all persons interested That, in pursuance of an order made in this matter, in the said lands, that such permanent improvements bearing date the day of Mr. should be made under the provisions of the said act? ter to whom the said matter was referred, has made his and the Master is to require such evidence to be pro-report, bearing date the day of and for the duced before him, and, if he shall think proper, is to cause such surveys of the said lands to be made, as shall to him to be necessary to enable him to make a appear satisfactory report on the matters hereby referred to him.

IV. The Master to whom the said reference may be made is to require proof of the deed, will, or other instrument under which the petitioner claims to be entitled to the land, and of the manner in which the petitioner claims title under the same, but he is not otherwise to require proof of the title to the land.

Form of Petition.

In the Matter of &c.

and

In the Matter of the Act 8 & 9 Vict. c. 56, &c.
To the Right Honourable the Lord Chancellor [or,
"the Right Honourable the Master of the Rolls"].
The humble petition of &c.
Sheweth,

the Mas

reasons therein stated has found [here state the Master's finding].

That the said report has been filed in the Report Office of this court, and that no special application has been made to review the same.

Your petitioner, therefore, humbly prays your Lordship, that the said report may be confirmed absolutely, and that your petitioner may be authorised to make such permanent improvements as are certified in the said report, under the provisions of the said act.

Kingston-upon-Hull, (Town and County), Tuesday, June 16. AUGUSTUS JOHN HALERO, Leeds, Yorkshire, dealer