and 31 ct., c. 128, e. 30.

2 Vict., c. 12, ec. 5.

AS TO LEGAL PROCEEDINGS FOR RECOVERY OF LANDS.

39

II. And further, under the War Department Stores Act,1 1867.

The Secretary of State for War may institute and prosecute Power for
any action, suit, or proceeding, civil or criminal, concerning State to sue,
Secretary of
military or ordnance stores, or other Her Majesty's stores under &c.
the charge or control of the Secretary of State for War, or any
stores sold or contracted to be delivered to or by the Secretary
of State for War for the use or on account of Her Majesty, or
the price to be paid for the same, or any loss or injury of or to
any such stores as aforesaid, and may defend any action, suit,
or proceeding concerning any such stores, matter, or thing as
aforesaid; and in every such action, suit, or proceeding the
Secretary of State for War may be so described, without more;
and any such action, suit, or proceeding shall not be affected
by any change in the person for the time being holding the
office of Secretary of State for War: provided always as
follows:-

(1.) Nothing therein shall take away or abridge in or in
relation to any such action, suit, or proceeding any
legal right, privilege, or prerogative of the Crown;
and in all such actions, suits, and proceedings, and
in all matters and proceedings connected therewith,
the Secretary of State for War may exercise and
enjoy all such rights, privileges, and prerogatives as
are for the time being exercised and enjoyed in any
proceeding in any Court of Law or Equity by the
Crown, as if the Crown were actually a party to
such action, suit, or proceeding:

(2.) Her Majesty, Her heirs and successors, if and when it
seems fit, may proceed by information in the Court
of Exchequer, or by any other Crown process, legal
or equitable, in any case in which it would have
been competent for Her Majesty, Her heirs or suc-
cessors, so to proceed if no provisions respecting
procedure had been inserted in the Act.

(u.) AS TO LEGAL PROCEEDINGS FOR THE RECOVERY OF THE
POSSESSION OF WAR DEPARTMENT LANDS.

land in

Where any lease or agreement of or concerning land in Recovery of England vested in the said Secretary of State on behalf of Her possession of Majesty is determined by expiration, notice, or forfeiture England from (except for nonpayment of rent, possession of such land may be tenants. recovered by or on behalf of the said Secretary of State under 1 and 2 Vict., cap. 74, as in cases therein provided, for although the term or interest of the lessee or tenant may have exceeded seven years, and the rent may have exceeded the rate of twenty pounds a year, or such possession may be recovered with rent or mesne profits, or both, under the 19 and 20 Vict.,

The Act does not extend to Scotland or Ireland, and defines stores as including all goods and chattels, or any single store or article.

Recovery of possession of Ireland from

land in

tenants.

cap. 108, as in cases provided for in Section 50 of such Act,
and other provisions auxiliary thereto, although the value of
the premises and the rent which may have been payable in
respect thereof may have exceeded 50l. by the year; and in
proceeding under the said first Act for recovery of possession of
any land which may have been holden under any such lease or
agreement as aforesaid, the notice of intention to apply to
Justices to recover possession may require such possession to be
given on or before the expiration of seven clear days from the
service of the notice, and the form of notice shall be varied
accordingly; and the Justices by the said Act authorised to
issue a warrant for giving possession of the premises may by
such warrant authorise the entry and delivery of possession of
the premises, either forthwith or on or before such day as the
Justices may think fit to name; and in proceeding under the
said second Act for the recovery of possession as aforesaid it
shall not be necessary to prove the yearly value and rent as
thereby required.

When any lease or agreement of or concerning land in 22 Vict., c. 12,
Ireland vested in the said Secretary of State on behalf of Her sec. 6.
Majesty is determined by expiration, notice, or forfeiture (except
for nonpayment of rent), possession of such land may be
recovered by or on behalf of the said Secretary of State either as
provided by Section 72 of 14 and 15 Vict., cap. 57, in the case
of lands holden by a tenant at a rent not exceeding 50l. per
annum, and the tenant's interest wherein is determined, not-
withstanding the rent payable under such lease or agreement
may exceed that amount, and the provisions of the said Act
shall be applicable accordingly, or as provided by Section 15 of
"The Summary Jurisdiction (Ireland) Act, 1851" (14 and 15
Vict., cap. 92, sec. 15), for the recovery of possession of houses
in certain towns and villages; and such last-mentioned pro-
vision shall be applicable in all cases to the recovery of land in
Ireland holden under any such lease or agreement as aforesaid
where such lease or agreement is determined as aforesaid,
wherever such land may be situate, and at and for whatever
rent and term the same may be holden: and notwithstanding
anything to the contrary in the said provision the justices
authorised to issue a warrant for giving possession may by
such warrant authorise such possession to be given forthwith,
or on or before such day as the justices may think fit to name,
and may, if they think fit, issue such warrant notwithstanding
the tenant may be willing to give such undertaking as therein
mentioned.1

A

The attention of the Irish Law Officers was called to the Irish Land Book I., p. Act, 1870, and to the fact that the rents of War Department lands went to the 836. Exchequer, and the repairs were provided for out of the Army Votes; and they advised that the Irish Land Act "does not affect the Secretary of State or the tenancies created by him or under him in his official capacity." The Agricultural Holdings Act (England, 1875) is said to bind the War Department (K. 51).

fence Act, 12, sec. 12.

p. 508.

(v.) AS TO SALES AND EXCHANGES.

let.

The said Principal Secretary for the time being may sell,' Lands, &c.,
exchange, or in any manner dispose of or let or demise any of may be sold,
the messuages, buildings, castles, forts, lines, or other fortifica- exchanged, or
tions, manors, lands, tenements, or hereditaments respectively,
which shall be vested in him, with their respective appurtenances,
either by public auction or private contract, and may convey, sur-
render, assign, or make over, or may grant or demise the same
respectively (as the case may require) to any person or persons
who shall be willing to purchase or take the same in exchange
or otherwise respectively, and also may do any other act,
matter or thing in relation to any such messuages, buildings,
castles, forts, lines, or other fortifications, manors, lands, tene-
ments, and hereditaments, which shall by the said Principal
Secretary be deemed beneficial to the public service in relation
thereto,2 or for the better management thereof, which might be
done by any person having a like interest in any such like
messuages, buildings, castles, forts, lines, or other fortifications,
manors, lands, tenements, or hereditaments; but nothing therein
contained shall be construed to give to the said Principal
Secretary for the time being a greater or better estate in the
said messuages, buildings, castles, forts, lines, or other fortifica-
tions, manors, lands, tenements, and hereditaments, or any of
them, than was vested in Her Majesty, or in the person or

1 The Secretary of State is a trustee without the power of making gratuitous grants
of land to any person or corporation unless a statutory authority by general or local
Act be conferred upon him. This fact is too often overlooked, and in one instance
obliged a Secretary of State to revoke or recall a grant made by his predecessor
and to require the town to pay the Exchequer for the land which the Corporation
held. Whenever, therefore, an applicant asks for a gratuitous grant of land from
the Secretary of State, he should be required to show the statutory authority under
which the grant may be made. These statutes appear to authorise such grants :-
(1) 3 Geo. IV., cap. 72, sec. 1, for church sites and yards, and for parsonage houses;
(2) 4 and 5 Vict., cap. 38, sec. 6, and 15 and 16 Vict., cap. 49, for school sites
(3) 17 and 18 Vict., cap. 112, sec. 6, for literary and scientific institutions; (4)
22 Vict., cap. 27, for public recreation grounds, contains no such powers as are
found in the Acts last referred to.

2 Deeds of trust or dedication for religious uses are made under this section, and
the forms of these deeds are given in Appendix, Nos. 18 and 19, p. 235.

;

In 1856 some land was set apart as a military burying ground, and prior to its consecration two questions were submitted to the Queen's Advocate (Sir J. Harding). 1st. Whether the ground could be consecrated without giving the future control to the incumbent of the parish? And, 2ndly, whether the ground might remain vested ., p. 455 (a). in the Secretary of State. He wrote as follows:-"1st. I am of opinion that the ground can be consecrated without giving the incumbent of the parish any right of control over it. 2nd. The ground need not necessarily be conveyed to any person. It may, in my opinion, still remain vested in the Principal Secretary of State for War. I believe that in 1833 a burial ground, and in 1844 a vault was consecrated in the Tower of London, without any previous conveyance of the ground; the only object of such a conveyance is to secure the ground for sacred uses, and to obviate the possibilty of desecration. If a conveyance should be resorted to in this case, then the commissioners for building additional churches will be the proper parties to whom such conveyance should be made. I see no absolute necessity for any such conveyance. A formal declaration under the hand and seal of the Secretary at War of the use to which the ground is to be set apart would, in my opinion, suffice, and might justify the bishop in consecrating it.

b., p. 453.

In 1858 it was proposed to consecrate a church, and the Queen's Advocate advised, "that upon such a formal declaration being executed in this case as was executed in the case of the Aldershot Burial Ground (herewith) mutatis mutandis, the Lord Bishop of Rochester will be justified in consecrating this church.”

Purchase

money shall be paid to those whom the principal officers may

direct.

After purchase

money paid, the purchaser to have full right and possession.

Compensation to be made

able rights are established;

persons holding the same in trust for Her Majesty, at the
time of the passing of the Defence Act, 1842.

The moneys to arise and be produced by the sale or Defence Act,
exchange of any of the said messuages, buildings, castles, forts, 1842, sec. 13.
lines, or other fortifications, manors, lands, tenements, or here-
ditaments, which shall be so sold or exchanged, shall be paid
by the respective purchaser or purchasers thereof, or the person
or persons making such exchange, to such person or persons as
the said Principal Secretary for the time being shall direct or
appoint to receive the same for the use of Her Majesty, Her
heirs and successors, and the receipt of the said Principal
Secretary for such moneys (such receipt to be endorsed on
every such conveyance, surrender, or assignment as aforesaid)
shall effectually discharge the purchaser or purchasers, or person
or persons by whom or on whose account the same shall
be paid.

Immediately from and after the payment of such purchase Ibid, sec. 14. money and the execution of every such conveyance, surrender, and assignment as aforesaid, the purchaser or purchasers therein named, or the person or persons making such exchange aforesaid, shall be deemed and adjudged to stand seised and possessed of the messuages, buildings, castles, forts, lines, or other fortifications, manors, lands, tenements, and hereditaments which shall be so purchased or taken in exchange by and conveyed, surrendered, assigned, or made over to him, her, or them respectively, and notwithstanding any defect in the title of the said Principal Secretary thereto, freed and absolutely discharged of and from all and all manner of prior estates, leases, rights, titles, interests, charges, incumbrances, claims, and demands whatsoever which can or may be had, made, or set up, in, to, out of, or upon or in respect of the same messuages, buildings, castles, forts, lines, or other fortifications, manors, lands, tenements, or hereditaments by any person or persons whomsoever on any account whatever (save and except such estates, leases, rights, titles, interests, charges, incumbrances, claims, and demands whatsoever as in any such conveyance, surrender, deed of exchange, or assignment shall be excepted).

In case any person or persons shall have any just and legal Ibid, sec. 15. or equitable right to any of the messuages, buildings, castles, where equit- forts, lines, or other fortifications, manors, lands, tenements, and hereditaments, which shall be so sold, exchanged, and conveyed as aforesaid, or to any part or parts thereof, or to any charge, incumbrance, or demand affecting the same, and not being under any of the disabilities hereinafter mentioned, and shall within five years next after such right shall by law or equity accrue to or become vested in him, her, or them respectively, or, being femes covert (except femes covert whose estates have been or may be sold under the authority of this or any other Act for that purpose), persons within the age of twenty-one years, or out of the realm, or not of whole mind, at the time of such sale, exchange, and conveyance as aforesaid, shall, within five years next after they shall respectively come and be

H

LANDS MAY BE SOLD SUBJECT TO CLEARANCE RIGHTS. 43

discovert, at their full age of twenty-one years, out of prison,
within this land, or of whole mind, make out and establish such
right or claim to the satisfaction of the said Principal Secretary,
then and in such case the said Principal Secretary shall make
or cause to be made a fair and reasonable compensation or
satisfaction for every such right and claim so made out and
established as aforesaid; but such compensation or satisfaction but not to
shall not in any case exceed the amount of the purchase money exceed the
or purchase moneys which shall have been paid to and received purchase
by the said principal officers for the messuages, buildings, received by
castles, forts, lines, or other fortifications, manors, lands, tene- such Principal
Secretary.
ments, and hereditaments, in respect whereof such right or
claim shall be so made out as aforesaid, or a proportional part
thereof, exclusive of the value of any buildings or improvements
which shall have been erected or made thereon for the use of
the said Ordnance or Barrack Departments or for the defence of
the realm.1

(w.) LANDS MAY BE SOLD SUBJECT TO CLEARANCE RIGHTS.

money

State for War

Her Majesty's Principal Secretary of State for the War Power of the Department may from time to time, as he may deem it expedient, Secretary of sell any lands vested in him or under his control as such to sell lands, Secretary of State as aforesaid, subject to the condition that subject to such lands are for ever thereafter to be kept free from buildings condition as to and other obstructions.

freedom from obstructions,

Where any lands are sold subject to such condition as and to aforesaid, the following consequences shall ensue :

purchase the

subject lands

Such condition as aforesaid shall be deemed to attach for right to ever to any lands so sold, and no building or other structure, to such other than barns, hovels, or other like structures of wood, shall condition.

These provisions were taken from the 1 and 2 Geo. IV., cap. 69, but
extended to "6
castles, forts, and other fortifications," a power which is at variance
with the constitutional rule that such works should be held by any owner except
the Crown. Had the Crown purchased instead of sold these estates, the grant of a
statutory indefeasible title to the Crown (with a provision for compensation for
interests omitted to be purchased) would have been essential, but to assume that
the Crown will sell without an absolute right, and to provide that when the sale
has been made, it must be completed at any cost not exceeding the original purchase
money is a strong assumption and a very unnecessary provision.

The

2 This section was framed on the 34th section of Defence Act, 1860 (as amended), so as to exclude the right to erect buildings for "commercial" purposes. In k G, p. 9. August 1864 the Law Officers wrote in these words: "A building not built wholly of wood but having an iron roof, and not built or used at all for agricultural purposes, does not fall within the excepted class. It is almost impossible to define beforehand what things, if placed upon land, will or will not amount to obstructions. It is not we think to be assumed that the owner is entitled to place upon the land any banks and fences' he may choose; for many possible banks and fences may be 'obstructions.' On the other hand, it is impossible to say that the deposit of a small amount of timber or moveable materials would be an 'obstruction.' Secretary of State must in every case exercise his judgment whether or not the land is so obstructed as to be unavailable for the exercise of the rights upon it which he has purchased. We think that the words in section 34, 'generally to level and clear the said lands,' give him sufficient power to deal with every description of obstruttion, whenever it becomes necessary to do so. We think that the Secretary of State, by his officers, has the right to enter at any time without notice, and remove all unauthorised buildings and obstructions, but we advise that notice of such entry be given in all cases where it is practicable and convenient." As to Forms, see Nos. 20 & 21, Appendix, pp. 236-7.