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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 42, 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.

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

4 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.

&c.

The promoters of any harbour constructed under the Power to ict., 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 any or batteries, 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

ings or land to Secretary

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.

Vict., c. 68, sec. 10.

The Commissioners of Lieutenancy of the city of London, 35 and 36 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 the council of any municipal borough, may transfer to the 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,

Upon a certificate being given by the Secretary of 36 and 37 State that any such barrack, storehouse, or other building or sec. 2. 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 may require Secretary shall have been given to the chief officer or officers of

agree, the persons au

thorized by

Her Majesty

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

D., p. 204.

any such body, or to such other persons authorized to contract on behalf of others or interested themselves, as aforesaid, or left at his, her, or their usual place of abode, refuse or decline to treat or agree, or by reason of absence shall be prevented from treating or agreeing with the said Principal Secretary, or shall refuse to accept such sum of money1 as shall be offered by the said Principal Secretary as the consideration for the absolute purchase of such lands, buildings, or other hereditaments, or such annual rent or sum as shall be offered for the hire thereof, either for a time certain or for such period as the exigence of the public service may require, then and in such case it shall be lawful for the said Principal Secretary to require two or more Justices of the Peace, or three or more Deputy Lieutenants (one of whom shall be a Justice of the Peace), or two or more deputy governors for county, riding, stewartry, city, or place where such lands, buildings, or other hereditaments shall be, to put the said Principal Secretary, or any person appointed by them, into immediate possession of such lands, buildings, or other hereditaments, which such Justices or Deputy Lieutenants, or Deputy Governors are hereby required to do, and shall for that purpose issue their warrants? under their hands and seals, commanding possession to be so delivered, and shall also issue their warrants to the Sheriff of the county, riding, stewartry, city, or place wherein such lands, buildings, or hereditaments shall be situate, to summon a jury; and every such Sheriff is hereby authorized and required to summon and return a jury, properly qualified, of the number of twenty-four, and in the manner required by the laws of England, Ireland, and Scotland respectively, who shall meet at some convenient time and place to be mentioned in such summons, out of whom a jury of twelve shall be drawn, in such manner as juries for the trial of issues joined in Her Majesty's Courts at West

obtained for a price unless they treat for the purchase. There is a duty under the statute to open the treaty; but it would defeat the intention of the Legislature if the opening of a treaty was held to be the completion of the contract." In August 1860, the Law Officers, upon having this case and a notice to treat given by the War Office, before them, wrote that the notice did not create the relation of vendor and purchaser; "for the certificate of the Lord Lieutenant and warrant of the Treasury are indispensable as preliminaries to the validity of taking any steps compulsorily, and no such certificate or warrant having been granted, the notice to take was wholly inoperative as a foundation by which to take the land adversely."

1 No sum of money need be inserted in the notice to treat, though a contrary opinion appears at one time to have prevailed. "I am of opinion (wrote the late Mr. Welsby) that the Act does not require, in order to entitle the Department to call upon the Justices to put the Secretary of State into possession, that the sum which the Department considers to be the real value of the lands, and are willing to give as such, should be inserted in the notice required by sec. 19; but that any sum may be inserted therein; and that if the party after the lapse of 14 days from the service of such notice, refuses to treat or agree, either upon the terms stated in the notice, or upon any terms, the Justices are bound, on the requisition of the Secretary of State, to exercise the ministerial duty of putting him into possession, subject to the value of the lands being thereafter assessed by a jury."

In the taking land under these compulsory powers no costs are recoverable against the Department. Ex parte Laws, 1 Exch. Cas. 451, and ex parte Tomline, M.S., April 1876, Vol. 34.

2 Nos. 6 and 7, Appendix, p. 224.

Barrack sites.

minster and Dublin are drawn by law in England and Ireland
respectively, and in such manner as juries are drawn by law for
any trial in Scotland; and in case a sufficient number shall not
appear, the said Sheriff shall chose others of the by-standers, or
that can speedily be procured, being qualified as aforesaid;
and the said jurymen may be challenged by the parties on
either side, but not the array; and the said Justices, Deputy
Lieutenants, or Governors, respectively, may summon witnesses,
and adjourn any such meeting if jurymen or witnesses do not
attend; and the jury, on hearing any witnesses and evidence
that may be produced, shall on their oaths (which oaths, as
also the oaths of such witnesses, the said Justices, Deputy
Lieutenants, or Governors, respectively, are hereby empowered
and required to administer) find the compensation' to be paid,
either for the absolute purchase of such lands, buildings, or
other hereditaments, or for the possession or use thereof, as the
case may be.

Provided always, that it shall not be lawful for the said 22 Vict., c. 12.
Principal Secretary to use any lands, buildings, or heredita- sec. 4.
ments taken under the compulsory process aforesaid for the
barrack service, or to erect any barrack buildings thereon, but
this proviso shall not extend to prevent the erection of barracks
on land so taken in any fortress or garrison town, or opposite
to any fortification, or to prevent any building on any such
lands being used as or for barracks.2

1 These words came under the consideration of the Court of Exchequer in 1 Exch. Rep., ex parte Laws:-"Undoubtedly," said Chief Baron Pollock, "it is competent for 448. the jury, when they are considering the value of the land, to take into their consideration the character of the compulsory sale. In practice such is the case. It is always the custom with surveyors to make a difference in their estimates between the value of land to be sold in the market, and of that which is to be subject to what is called a compulsory sale. The jury have no power to include any costs or expenses of the transaction in their verdict. The compensation mentioned in the Act means a compensation for the absolute purchase of the land, that it includes everything which ought to be given to the party in respect of the land itself, and of any damage resulting from severance, or from its particular situation; but that it does not include the expenses to which the party may be put in respect of the purchase. Those expenses are matters for which the Legislature have not provided, and by their direction we must abide." "The real question," Ib., 451. said Mr. Baron Rolfe, "is this: Suppose the jury to be assembled, under the presidence of a judge, what direction should he give to them as to the amount of compensation to be awarded by them? Ought the learned judge to say to the jury, "In estimating that compensation yon may take into account the expenses which the owner of the property has incurred in getting it surveyed, and in making proper preparations for the investigation, the expenses of the witnesses and the counsel's fees, and other necessary expenses?' I think that such a direction would be clearly

incorrect."

2 The meaning of this proviso is not clear, because fortress or garrison towns are few. Assuming a barrack to be injurious to the value of adjacent property, the proviso is intended as a protection, but which any landowner may waive by a voluntary sale, and inflict upon his neighbour this injury. The remedy, such as it is, is not against the compulsory taking, but the subsequent user. Neither the owner nor J., p. 236. any adjacent owner has any remedy for restraining the Secretary of State from acquiring sites under the section. When the land has been so taken, any D., p. 214. persons who would be injuriously affected by the erection of barracks could by information prevent their erection. It is assumed that the words "fortress or garrison town" must be construed in their strict sense. If so, a town which merely contains barracks or houses in which soldiers live, and which is in no way adapted for defence, is not a "garrison town" in any strict meaning of the expression

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