2989
is
But in this case not only the Machinery of the Act wanting for ascertaining the value, but the only method provided by the Brown Lease for that purpose is one which Court could adopt were it called upon to compel the completion of such purchase after notice to rescind. (Milnes v. Brey 14 Ves. 400 Fry on Spec: Perf 95.) On these grounds I am disposed to think that the decisions as to the withdrawal of a notice under the Lands Clauses Act do not apply to the present case.
If this view of the Law be correct the only question which arises is whether Her Majesty's Surveyor had at the date of the withdrawal of the Notice of Resumption, fixed "a full and fair compensation"? As against Ms. Duddell the answer is to be found in his memorial of the 28th December 1857. In that document Mr. Duddell affirms that the compensation fixed was not "full and fair". If the Contract was still incomplete and it was competent to the Government to withdraw.
The only point which presses on my mind is whether the Government having in the commencement adopted the price