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 money' 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 Provided always, that it shall not be lawful for the said 22 Vict., c. 12, 1 These words came under the consideration of the Court of Exchequer in 1 Exch. Res., 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 you 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 ence Act, If the said Principal Secretary, or any person interested in Jury to be 2, sec. 20. the lands, buildings, or other hereditaments so marked out and summoned surveyed, shall be dissatisfied with the verdict of any such to value the premises. jury, it shall be lawful for them, or their Attornies, in England and Ireland, to apply to the Court of Exchequer at Westminster or Dublin respectively in the term next, and in Scotland to apply within fourteen days after the finding any such verdict to the Court of Session in Scotland in time of session, or Lord Ordinary on the bills in the time of vacation, and to suggest to the said Courts or Lord Ordinary respectively that they have reason to be dissatisfied with such verdict, and forthwith give notice thereof to the said Principal Secretary on the one part, or to the party so interested as aforesaid on the other part (as the case may be); and thereupon, in England and Ireland, the proceedings that shall have been had and the verdict of such jury shall be returned into the said Courts of Exchequer respectively, and if it shall appear to the said Courts to be proper, such suggestion shall be entered on such proceedings as aforesaid, and a writ shall thereupon, by rule of such Court, or order of any Judge of such Court, be directed to the Sheriff of the county where such lands, buildings, or other hereditaments shall lie, or, if the same shall lie in two counties, to the sheriff of either of such counties, to summon either a common or special jury, according to the application that shall have been made in that behalf, and as the Court and as such Judge shall allow, and who shall respectively be qualified, according to law, to appear before the said Justice or Justices of Assize or Nisi Prius of that county at the next assizes or sittings of Nisi Prius, if the same shall not happen sooner than twentyone days after such suggestion, otherwise at the next succeeding assizes or sittings, and the compensation to be paid either for the absolute purchase or for the possession or use of such lands, buildings, or other hereditaments (as the case shall be) shall at such assizes or sittings be ascertained by such jury, in like manner as any damages may be inquired of upon any inquisition or inquiry of damages by any jury before any Judge of Assize or Nisi Prius, and the verdict of such jury shall be returned to the said Court of Exchequer, and shall be final and conclusive; and in Scotland, if it shall appear proper to the said Court of Session or Lord Ordinary, upon such application, so to do, the said Court or Lord Ordinary shall order and direct the sheriff of the county where such lands, buildings, or other hereditaments shall lie, or if the same shall lie in two counties, to the sheriff of either of such counties, to summon another 1 The first step to be taken by either party dissatisfied with the verdict is to obtain a rule nisi for the sheriff to bring in the return of the verdict. This rule, when made absolute, is served upon the Crown or claimant, the high sheriff, and the justices. The return of the sheriff is under his hand and seal, and also under those of the two justices. The party complaining having got this return then (upon affidavits) obtains a rule nisi from the Court, setting forth the grounds upon which he is dissatisfied with the verdict, and upon argument the rule is either discharged or made absolute. The proceedings are not governed by the Judicature Act, 1873. (Re Tomline ante.) (See the forms Nos. 8, 9, 10, and 11, Appendix, p. 226.) Jury may for land to lessees, &c. jury in the manner in which juries are summoned in Scotland, It shall be lawful for any jury impamelled before any Defence Act, ascertain the Justice of the Peace or Magistrate, or Deputy Lieutenant, or 1842, sec. 21. proportion to paid out of Deputy Governor, or before any Judge of Assize or Nisi Prius, to compensation ascertain the compensation to be paid for any lands, buildings, or other hereditaments under this Act, and they are hereby required to ascertain and settle the proportion to be paid out of such compensation to any persons having any interest as lessees or tenants at will, or otherwise, in any such lands, buildings, or other hereditaments, and the proportion to be paid out of such compensation shall be returned on the verdict. Provided also, that where any such inquiry before any Judge of Assize or Nisi Prius shall be had on the application of any such lessee or tenant at will, or other person having any inferior interest in any such lands, buildings, or other hereditaments, who may have been dissatisfied with the proportion of compensation settled by the jury to be paid in respect of such interest, it shall not be lawful for the jury in any such case to alter the amount of the entire compensation awarded by any former verdict to be paid for such lands, buildings, or other hereditaments, but only the proportion thereof to be paid to the person or persons having separate interests therein; and it Rep., p. 449. 1 The Act recognises only one ownership, and all derivative interests are to be Ex parte provided for out of the one entire compensation to be allotted as the absolute value Laws, 1 Exch of the premises. "What is given," said Mr. Baron Alderson, "by the Act of Parliament (by the words of which we are bound) is the compensation for the absolute purchase of the land. In looking through the Act we see that it is not confined to persons who have the fee simple in themselves, but that it is extended to cases where the title is divided into a variety of interests, immediate and reversionary. Every one of these interests is to have its compensation, in proportion to the original amount found for the absolute purchase of the whole. If a person be tenant for years, at will, for life, or in remainder, he is tenant for years, at will, for life, or in remainder, of an estate which is of the absolute value of so much as the jury shall find. This interest is to be settled by the Court of Exchequer, into which the money (if necessary) is to be paid; and it is to be paid to him out of that corpus so ascertained. The real value of the particular property being ascertained, the tenant for life is to have an interest in the money so given, as to the compensation equivalent to his life interest; and so with respect to the tenant for years or in remainder, each party is to have the same interest in the money as he previously had in the land. The one is a substitute for the other." Defence Act, shall not be lawful for any jury on any such inquiry as afore- It shall be lawful for the Court or Judge or Lord Ordinary Court to 842, sec. 22. making any such rule or order to require that the party on require the party to give whose application the same shall be made, shall give such security for security as shall to such Court, Judge, or Lord Ordinary seem costs. proper, for payment of costs, under such circumstances as shall be specified in any rule or order made for that purpose. bid, sec. 23. Defence Act, be taken for without con sent of the owners, unless No such lands, buildings, or other hereditaments shall be so Lands not to taken without the consent of the owner or owners thereof, or the defence of of any such person or persons aforesaid, acting for or on the the realm behalf of the owner or owners thereof, unless the necessity or expediency of taking the same shall be first certified' by the Lord Lientenant, or two of the Deputy Lieutenants, of the county, in certain riding, stewartry, city, or place in which such lands, buildings, cases. or other hereditaments lie, and unless the taking of such lands, buildings, or other hereditaments, be authorised by a warrant under the hand or hands of the Lord High Treasurer or of the Commissioners of Her Majesty's Treasury of the United Kingdom of Great Britain and Ireland, for the time being, or any two or more of them, or unless the enemy shall have actually invaded the United Kingdom at the time when such lands, buildings, or other hereditaments shall be so taken. 2. These additional provisions were added by Section 46 of the Defence Act, 1860. Every notice of land required to be taken by the said How notices 1860, sec. 9. Principal Secretary shall be served personally on the said parties, to be given. or left at their last usual place of abode, if any such can after diligent inquiry be found, and in case any of such parties be absent from the United Kingdom, or cannot be found after diligent inquiry, shall be addressed to such party and left with the occupier of the lands, or, if there be no such occupier, affixed upon some conspicuous part of such lands: B., p. 74. If any of such parties be a corporation aggregate such 1 See No. 4, Appendix, p. 222. This was taken from sec. 10 of 44 Geo. III., c. 95; but the draughtsman had overlooked the 1 and 2 Will. IV., c. 17, which abolished the Governors and Deputy Governors of c unties in Ireland. "It is essentially necessary," wrote the Law Officers in July 1805, "in order to give authority to take possession of any lands on behalf of His Majesty under the Act, when the owners are unwilling to part with them, that the Lieutenant should grant his certificate of the necessity and expediency of taking possession of the same. The Lieutenant, it is conceived, will adopt without hesita ion or reserve the judgment of the military officer commanding in the district as perfectly sufficient and satisfactory on these points, unless some circumstances or improper motive should appear to the Lieutenant to have influenced the choice and judgment of such officer." See also Note on sec. 16, ante, pp. 14-5. 2 See No. 5 of Appendix, p. 223, and 12 and 13 Vict., c 89. |