mere declaration in the resettlement that trustees of that deed should also be trustees of the compound settlement has no efficacy (p), but if the parties to the resettlement have complete control over the property and restore the life estate under the original settlement, they can appoint the trustees under the original settlement to be trustees of the compound settlement (q). Where the tenant for life has assigned his estate by marriage settlement or deed of family arrangement although the deed of assignment is deemed to be one of the instruments creating the settlement (r), this is only for the purpose of excluding the operation of s. 50 of the principal Act, and there is no necessity to appoint trustees of a compound settlement (s).

(p) In re Spencer's Settled Estates, [1903] 1 Ch. 75. (a) Re Spearman, [1906] 2 Ch. 502.

(r) Settled Land Act, 1890, s. 4.

(8) In re Du Cane and Nettlefold's Contract, [1898] 2 Ch. 96.

CHAPTER VIII.

POWERS CONFERRED BY LANDS CLAUSES CONSOLIDATION ACT, 1845.

SECTION 1.

GENERAL SCHEME OF THE ACT.

The compulsory taking of lands for undertakings of a public nature is regulated by the Lands Clauses Consolidation Act (a), which is incorporated in a large number of private and also of public statutes. Any Act which incorporates the Lands Clauses Act is referred to as the "special Act"; and the parties. (whether company, undertakers, commissioners, trustees, corporations, or private individuals) by the special Act empowered to execute any works or undertaking are described as the "promoters of the undertaking."

The powers conferred by the Lands Clauses Act relate to the acquisition of land of any tenure, but there is no power to take incorporeal hereditaments apart from the land (b).

The Lands Clauses Act is divided into groups of sections. Thus, ss. 6-15 inclusive relate to the purchase of land by agreement, and ss. 16-67 inclusive relate to the purchase of land otherwise

(a) 8 & 9 Vict. c. 18.

(b) Pinchin v. London and Blackwall Rail. Co. (1854), 5 De G. M. & G. 851.

than by agreement. In some cases the special Act excludes the provisions of the Lands Clauses Act which relate to the purchase and taking of land otherwise than by agreement, and in that event ss. 16-67 are not incorporated (c), but s. 68 (the compensation section) applies whenever lands are "injuriously affected" whether the sale is voluntary or by compulsion (d), and the later sections of the Act (ss. 69-152), if pertinent, are not thereby excluded (e).

SECTION 2.

PURCHASE BY AGREEMENT.

The promoters may purchase by agreement, either from absolute owners or persons under disability, the lands authorised by the special Act to be taken and required for the purposes of that Act (ƒ). The agreement must, of course, be in writing, so as to satisfy the requirements of the Statute of Frauds. Section 7 enables persons with limited interests in possession (other than married women entitled to dower or lessees for life or years) to sell the land, and enter into all necessary agreements for that purpose, not only on behalf of themselves, but also

for and on behalf of every person entitled in reversion, remainder, or expectancy after them or in defeasance of the estates of such parties." A similar power is conferred on corporations, guardians

(c) Ferrar v. Commissioners of Sewers (1869), L. R. 4 Ex. 227. (d) Kirby v. School Board for Harrogate, [1896] 1 Ch. 437. (e) R. v. Lord Mayor of London (1867), L. R. 2 Q. B. 292. (f) Lands Clauses Consolidation Act, 1845, s. 6.

on behalf of their wards, committees (g) on behalf of lunatics, and trustees, executors, and administrators on behalf of their cestui que trust. This provision, however, does not enable a municipal corporation to sell without the approbation of the Local Government Board (h), nor can a committee sell without the sanction of the Court of Lunacy (i).

Although executors and administrators are enumerated among the persons empowered to sell, the legislature did not intend to give this power to an executor or administrator having no estate or interest in the land (j). Moreover, the provision as to trustees does not include bare trustees for persons who are sui juris, e.g., a bare trustee for a woman who is entitled for her separate use free from restraint on anticipation (k). If the cestui que trust is himself competent to convey under the powers of the Act, he, and not the trustee, is the proper person to enter into the contract (), although if the trustee has the legal estate, he is a necessary party to the conveyance (m).

The sale may be made for a gross sum or in consideration of a rent-charge (n). If, however, the

(g) This does not include a quasi-committee under s. 116 of the Lunacy Act, 1890 (Re S. S. B., [1906] 1 Ch. 712). (h) Lands Clauses Consolidation Act, 1845, s. 15. (i) In re Taylor (1849), 1 Macn. & G. 210.

(j) In re Barrow-in-Furness Corporation and Rawlinson's Contract, [1903] 1 Ch. 339.

(k) Peters v. Lewes and East Grinstead Rail. Co. (1881), 18 Ch. D. 429.

(1) In re Pigott and the Great Western Rail. Co. (1881), 18 Ch. D. at p. 149.

(m) Lippincott v. Smyth (1860), 29 L. J. Ch. 520.

(n) 23 & 24 Vict. c. 106, ss. 1, 2.

owner is a person under a disability, and has no power to sell except under the Lands Clauses Act, he is incapacitated from fixing the price for the land taken (0), but he may either agree to sell at the price to be fixed by two surveyors under s. 9, or he may contract to sell at a named price which is subsequently to be tested by surveyors (p).

By s. 9 it is provided that where the owner is under disability or incapacity, and has no power to sell except under the provisions of the Act, the purchase-money or compensation to be agreed upon shall not be less than shall be determined by the valuation of two practical surveyors, one to be nominated by the promoters and the other by the other party; and if such two surveyors cannot agree in the valuation, then by such third surveyor as any two justices shall upon the application of either party after notice to the other party for that purpose

nominate.

The section also requires a declaration in writing to be annexed to the valuation by each of the surveyors if they agree, or if not by the surveyor nominated by the justices, verifying the correctness of the valuation, and such declaration is essential to its validity (g).

It is conceived that this section applies to persons having limited interests, such as a tenant for life, but there is nothing to prevent the sale from being

(0) Bridgend Gas and Water Co. v. Dunraven (1885), 31 Ch. D. 221.

(p) Peters v. Lewes and East Grinstead Rail. Co. (1881), 18 Ch. D. 429.

(q) Bridgend Gas and Water Co. v.

Dunraven, supra.