Office copies

of such deeds, &c., admissible in evidence.

A copy of the enrolment of every such deed, decree, writing, Defence Act, of enrolments or other instrument as aforesaid, signed by the proper officer 1842, sec. 33. having the custody of such enrolment, and proved upon oath to be a true copy, shall for every purpose whatsoever be sufficient evidence of the contents of such deed, decree, writing, or other instrument in all Courts of Law and Equity, and on every other occasion whatsoever shall be of the same force and effect, to all intents and purposes, as such deed, decree, writing, or other instrument would be if the same were respectively produced and shown forth.

Principal

(g.) AS TO THE PURCHASE OF LANDS BY AGREEMENT.

It shall be lawful for the Principal Secretary' for the time bid, sec. 16. Secretary may being to enter on, survey, and mark out, or to cause to be

authorize

persons to survey and mark out lands, and treat with

owners for the absolute pur chase thereof.

1 The Legislature has invested the Secretary of State and his officers with great power, and consequently with great responsibility, by the discretion here entrusted to them, because a roving and yet perpetual authority to take any land or building for any public purpose (save a barrack) may inflict a vast injury upon a neighbourhood or an individual, from which there is no appeal to any court save that of Parliament. In the first place it appears, I think, clear that Parliament having given this statutory power and voted money in supply to the Secretary of State for a particular work or purpose, no court of law would interfere with the exercise of his discretion in selecting the site for it (see "Stockton v. Brown," 9 H. of L. C., p. 250, and "Galloway v. Corporation of London," 2 De Gex, Jones and Smith, p. 224). Neither would any court give damages against the Crown for using the land or building so acquired, though it was an user prejudicial to the plaintiff (see "King v. Pease," 4 Adol. and Ell., 30; "Laurence v. Great Northern Railway Company," 16 Q.B. Rep., 654; "Vaughan v. Taff Railway Company," 6 Jur., N.S., 899; "Ibbotson v. Peat.," 3 Hurls. and Colt., 649; "Hammersmith Railway Company v. Brand," L.R., 4 H. of L., 171). In "Hawley v. Steele," where the plaintiff filed a bill against the general officer in command at Aldershot to restrain him from using a rifle range acquired under this Act, and for compensation, the Master of the Rolls refused to give relief. Ile said:"I take it to be clear that no man is entitled to use his land by allowing Vol. K, others to come upon it and make a noise which is really intolerable to his neighp. 243. bours, or which, to put it in legal language, materially interferes with their ordinary comfort and use of their dwelling-house; and, therefore, if the defendant had been Vol. 6, L. F. the owner of this land, and if the persons who cause that noise and vibration had (Chancery) not been troops of the Government, I should have had no hesitation in granting P. 525. the injunction. The real question is whether the Legislature has authorized the act to be done. Now, that being so, the two Acts to which my attention has been drawn look very much like authority for that purpose. I am not going primarily to decide the question; it is a question that will be very much considered 1842, and at the trial, when I shall know a good deal more about the Acts of Parliament, and 19 & 20 Vict also something more (although I do not see that it is disputed) as to the reasonable- c. 66. ness of the acts done, having regard to the purpose for which this land has been acquired.. Now, putting all the sections together, they seem to me to amount to this-authority to the officers of departments to take, that is, to purchase or acquire, and to use the land so purchased or acquired, including lands then vested in them for the purposes of the defence of the realm.' That is a very large word, or for military defences, or for the services of the department,' substantially for all reasonable military purposes. That is the effect of the sections, as it appears to me, although I am not now intending finally to decide upon them. Therefore, we have this as the general effect of the Act of Parliament. Lands authorized to be bought vested in the trustee for the Crown to be used for the military purposes of the realm. Now, what does that mean? That must mean to be used for the reasonable purposes, having regard to the nature of the requirements of the military department of the Government; and if that is so, it appears to me that, except in the case of an outrageous departure from all reasonable use, it is not for a court of justice to say what is the reasonable use of land for military requirements, but it is for the departments to say that such land is wanted as a camp for the exercise and instruction, such other land is wanted for a fortress, and

Defence Act,

Defence Act, surveyed and marked out, any lands, buildings, or other here1842, sec. 16. ditaments or easements wanted for the service of the War

Department, or for the defence of the realm, or to stop up or
divert any public or private footpaths or bridle-roads, and to
treat and agree with the owner or owners of such lands,
buildings, hereditaments, or easements, or with any person or
persons interested therein, either for the absolute purchase
thereof, or for the possession or use thereof during such time as
the exigence of the public service shall require.

It shall be lawful for the said Principal Secretary for the Principal
time being from time to time to contract for and purchase, for Secretary may
and on behalf of Her Majesty, Her heirs or successors, any lands, &c., and
purchase
messuages, buildings, castles, forts, lines, or other fortifications, take leases on
manors, lands, tenements, or hereditaments, or to take or behalf of the
purchase any lease of the same which shall in their judgment
be desirable to be purchased, for and on behalf of the Ordnance
or Barrack Services, or the defence of the realm, upon such
terms as the said Principal Secretary shall seem meet, and to
enter into any contracts necessary for that purpose.

Crown.

It shall be lawful for all bodies politic or corporate,1 eccle- Power given siastical or civil, and all feoffees or trustees for charitable or

to bodies

politic and

others to

such other land is wanted for an arsenal. In other words, I think, the discretion is treat.
vested in the Executive Government having authority over military matters. That
is, to whichever of these various military purposes for which land may fairly be
required, the particular land in question is to be appropriated. It is not for the
Judge to say that they have made a bad selection, and they ought to have taken
Blackacre for a camp instead of a fort, that they ought to have taken Whiteacre for
an arsenal instead of a camp, or that they ought to have taken Greenacre for a camp
instead of a fortress. It appears to me that that would be an invasion of the
authority of the military department by the Judge if he interfered with such
matters, and, therefore, if I find that the military authorities of the country had
selected this land as being a proper place for the camp of instruction, I should say
that it is for those authorities finally to determine that question, and that all I had
to look to would be whether they were using the land in any way except in a
reasonable way as a camp of instruction; and here again the Judge must be very
careful. As I said before, if it was an outrageous use, outrageous in the sense of it
not being past reason, I have no doubt the Court would interfere. I can imagine
such a use of land under the name of a camp of instruction, that it would be so
entirely opposite to a camp of instruction that the Court would say at once it was a
mere subterfuge and not a bona fide use of the land, but the moment the Court is
satisfied that it is a bona fide use of the land for the purpose of a camp of
instruction, it appears to me that the Court's function stops; that it has no right to
say that the tents shall be pitched on another piece of land or that targets are to
occupy a different piece of land. That is for the military authorities to decide, and
that would be their province and not the province of the Court. Then it follows,
from all I have said, without any further statutory enactment, that the power so
conferred on the military authorities was a legal right to the use of the land for
that purpose, although such a use would, without the authority of Parliament,
have been illegal. If that is so it is impossible to maintain an action for nuisance."
In concurring in this decision, Baron Pollock said, "It would be extremely
difficult to contemplate the use of land for military purposes which did not carry
with it the right to fire guns."-Hill v. Metropolitan Asylum, 4 Q. B. D., 445.

1 Royal burghs in Scotland are authorised by this section to sell their property
to the Department irrespective of the provisions of 3 Geo. IV., cap. 91.

2 Charity trustees can contract with the Secretary of State upon their own
authority, and frequently do so. In December 1863, the Law Officers wrote thus:--
"We think that the Secretary of State has absolute power to contract for the
purchase of land from trustees for charity without the sanction of the Court of
Chancery or of the Charity Commissioners, and that a conveyance made to him by
any
such trustees under either of the sections 10 and 17 of the Defence Act, 1842,
without such sanction would be valid and indefeasible. It is also clear that so far

other public purposes, and for all tenants for life and tenants in tail, and for the husbands, guardians, trustees, committees, curators, or attornies of such of the owners or proprietors of, or persons interested in any messuages, buildings, castles, forts, lines, or other fortifications, manors, lands, tenements, and hereditaments, which have been or may be hereafter agreed to be purchased or taken for the use of the said War Department, as shall be femes covert, infants, lunatics, idiots, or persons beyond the seas, or otherwise incapable of acting for themselves, to contract or agree with the said Principal Secretary for the time being, either for the absolute sale or exchange of any such messuages, buildings, castles, forts, lines, or other fortifications, manors, lands, tenements, or hereditaments, or sale of any reversion after any estate or estates for lives or years, or for the grant of any lease either for life or lives, or for any term of years certain therein, or for such period as the exigency of the public service shall require, and to convey, surrender, demise, or grant the same accordingly; and all contracts, sales, conveyances, enfranchisements, surrenders, leases, and agreements, which shall be made in pursuance hereof shall be valid and effectual in law to all intents and purposes whatsoever, and shall be a complete bar to all dower and

as relates to his own power of purchasing, the Secretary of State could not properly sanction or be a party to any application to the High Court of Chancery or to the Charity Commissioners for their confirmation of any such purchase. The question, however, is not whether such confirmation is legally necessary, nor whether the Secretary of State should in any case be a party to seeking it, but whether he ought to object to enter into a contract with any charitable trustees who may be advised not to incur the responsibility of a voluntary sale of property entrusted to them without the sanction of the Court or of the Commissioners, such trustees cannot of course be compelled to enter into any contract at all; and when (as in the present case) they stipulate that the contract which they are willing to make shall be conditional on such confirmation, the Secretary of State may have no option but either to accept that offer or to summon a jury to assess compensation under the compulsory clauses of the Act. In many cases-viz., cases of lunacy, or when an information or other suit is pending in the Court of Chancery-it would be contrary to the duty of persons in a fiduciary position, who are empowered to sell by sections 10 and 17 of the Defence Act, 1842, to exercise that power without first applying to the Great Seal or to the Court of Chancery (as the case may be) for its sanction; and if this were omitted, and if the bargain should afterwards appear to the Court to have been improvident, they might possibly be held liable for any loss which might have resulted therefrom, although the title of the Secretary of State under the Act of Parliament would still be unimpeachable. Parliament has given to such trustees sufficient power to bind themseives by contract, and to sell and convey; but it has not exonerated them under all circumstances from all responsi bility for everything which (even without fraud) they may voluntarily do under those powers. In such cases, therefore, although it is not at all necessary for the title of the Secretary of State that the sanction of the Court or of the Commissioners should be obtained, it may still be quite proper and prudent for the trustees to require such sanction for their own protection and indemnity. The Secretary of State need be no party to the application to the Court or to the Commissioners in any such case, but there is not in principle any reason why he should object to its being made by the trustees with whom he may be dealing, or why he should refuse to enter into a contract which is conditional on the part of the trustees on such sanction being obtained, unless he should consider that (having regard to the costs of the application, if by the contract they would fall upon him, or to any delay which it might involve) he might make a better pecuniary bargain or in any other way a better arrangement for the public interest by resorting to his compulsory powers or to any other alternative which might be offered."

claims of dower, estates tail and other estates, rights, titles,
trusts, and interests whatsoever.

the sale of

efence Act, It shall be lawful for all bodies politic or corporate, eccle- Bodies politic 842, sec. 18. siastical or civil, and all feoffees or trustees for charitable or may agree for other public purposes, and for all tenants for life and tenants in lands, &c. tail, and for the husbands, guardians, trustees, committees, curators, or attornies of such of the owners or proprietors of or persons interested in any such lands, buildings, or other hereditaments so surveyed and marked out as shall be femes covert, infants, lunatics, idiots, or persons beyond the seas, or otherwise incapable of acting for themselves, to contract and agree with the said Principal Secretary, either for the absolute sale of such lands, buildings, or other hereditaments, or for the grant of any lease, either for any term of years certain therein, or for such period as the exigence of the public service shall require, and to convey, surrender, demise, or grant the same to such Principal Secretary, in trust for Her Majesty, Her heirs, and successors, accordingly, and all such contracts, sales, conveyances, surrenders, leases, and agreements shall be valid and effectual in law to all intents and purposes whatsoever.

6 and 37 ict., c. 68, c. 7.

and 25

c. 20.

(h.) THE DUCHY OF LANCASTER LANDS.

The Chancellor and Council for the time being of the Duchy Dealings with of Lancaster may, if they think fit, from time to time contract lands of the Duchy of and agree with Her Majesty's Principal Secretary of State for the Lancaster for War Department, for the sale of, and may absolutely make sale the purposes and dispose of, for such sum or sums of money as to the said of the Act; Chancellor and Council appear sufficient consideration for the and p. 6, ante. same, any lands or rights belonging to Her Majesty, her heirs or successors, in right of the said duchy, which, for the purposes of the Defence Acts, 1842 and 1860, the said Secretary of State may from time to time deem it expedient to purchase, and such lands or rights may be granted and assured to the said Secretary of State, and the said moneys shall be paid and dealt with, as if the said lands or rights had been sold under the authority of the Duchy of Lancaster Lands Act, 1855.

(i.) SITES FOR BATTERIES ON PIERS AND HARBOURS.

The promoters of any harbour constructed under the Power to ct., c. 45, provisions of any Act, whether local or otherwise, may make, State for War Secretary of and for Her Majesty's Principal Secretary of State for the War to take and Department may accept a grant either in fee or for a term of hold land, &e.. years not less than nine hundred and ninety-nine years of or batteries, any &c. lands, tenements, and hereditaments proper for sites for batteries or fortifications, not exceeding in quantity in any one place what may be sufficient for building and erecting therec a battery or fortification for the protection of such harbour, and for making a proper or sufficient access or approach thereto, and may enter into any covenant or stipulation with the said Principal Secretary of State and his successors not to build or do any act prejudicial to the said batteries or fortifications on

C

Power for

boroughs to

of State.

the land adjacent to the sites so granted as aforesaid, within
the line of fire from such batteries or fortifications to be erected
thereon, and which sites when conveyed as aforesaid shall be
held by the said Principal Secretary and his successors on
behalf of Her Majesty.

(j.) MILITIA BARRACKS AND STOREHOUSES.

sec. 10.

The Commissioners of Lieutenancy of the city of London, 35 and 36 Vict., c. 68, counties and the justices of any county, riding, division, or liberty of a transfer build. County (in this section included under the term county), and ings or land the council of any municipal borough, may transfer to the to Secretary Secretary of State, for the purposes of the Military Forces Localization Act, upon such terms and with or without payment of a pecuniary consideration as they think expedient, any barracks, storehouses for arms or ammunition, or other buildings or land held in the case of a county for the public uses or purposes of such county, and in the case of a borough for the public uses or purposes of such borough; and any contracts, grants, or conveyances by or on behalf of the justices of a county may be made in manner provided by the County Property Acts, 1858, 1871.

In default of treating, or where the

Vict., c. 84,

sec. 2.

Upon a certificate being given by the Secretary of 36 and 37
State that any such barrack, storehouse, or other building or
land is not required for the purposes of the said Act, the said
Commissioners of lieutenancy, justices, or council may sell the

same.

(k.) AS TO THE PURCHASE OF LAND OTHERWISE THAN BY AGREE

MENT.

1842, sec. 19.

1. The compulsory powers under the Defence Act, 1842. In case any such bodies or other persons authorized to Defence Act, contract on behalf of themselves or others, or any other person parties do not or persons interested in any such lands, buildings, or other hereditaments which shall be so marked out and surveyed as aforesaid, shall for the space of fourteen days next after notice in writing1 subscribed by or on behalf of the said Principal Secretary shall have been given to the chief officer or officers of

agree, the persons authorized by Her Majesty may require two Justices, &c., to put Her Majesty's Officers in possession.

This notice (see Nos. 3-8, Appendix, p. 222,) to treat, and a claim sent Queen v. in by the owners, which in an ordinary case might create a contract, does Commisnot so bind the Crown. "A private company," said the late Mr. Justice sioners of Patteson, "to whom an Act is gran ed for their profit, differs materially from Woods, 15 commissioners appointed under a public Act to do on behalf of the Executive Q.B. Rep., Government certain things for the benefit of the public; and the principle that 774. imposes liabilities upon a private company, as arising in consideration of the statute granted to them, has no application in the case of such public commissioners. There may be reason for holding a notice to treat for a purchase, when given by a private company which has the option of taking land, to be a declaration of their option to take, and a contract of purchase, of which this Court will compel specific performance, making the obligation on such a company reciprocal with the obligation on the land owner. But, in the case of commissioners for the public, having a limited power of taking land provided the required quantity can be obtained for a given sum, a notice to treat for the purchase should be construed to be that which it is; the commissioners cannot ascertain whether the land can be

1